(HC) Staich v. US Parole Commissioner ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 11 IVAN VON STAICH, Case No. 1:21-cv-00628-HBK 12 Petitioner, ORDER DIRECTING PETITIONER TO NOTIFY COURT WHY PETITION SHOULD 13 v. NOT BE DISMISSED AS MOOT 14 U.S. PAROLE COMMISSION, FOURTEEN-DAY RESPONSE PERIOD 15 Respondent. ORDER DIRECTING CLERK OF COURT TO UPDATE PETITIONER’S ADDRESS 16 ORDER DIRECTING CLERK OF COURT TO 17 SERVE ORDERS BY CERTIFIED MAIL ON RESPONDENT 18 19 20 Petitioner Ivan Von Staich initiated this action by filing a pro se petition for writ of 21 mandamus under 28 U.S.C. § 1651. (Doc. No. 1). On April 16, 2021, the Court ordered 22 Respondent to respond to the petition and served a copy of this order electronically on the United 23 States Attorney’s Office for the Eastern District of California. See docket. Respondent has not 24 yet responded to the petition.1 It appears Petitioner was arrested on a warrant for violating the 25 terms of his federal parole and was temporarily detained in the Fresno County Jail. (See 26 generally Doc. No. 1). The Court has sua sponte reviewed the docket and notes that mail 27 1 The Court notes that Respondent was served by regular U.S. mail instead of by certified mail as required 28 by Federal Rule of Civil Procedure 4(i)(2) and as directed in the Court’s Order. 1 addressed to Petitioner at Fresno County Jail was returned undeliverable. (See docket). The 2 Court takes judicial notice under Federal Rule of Evidence 201 that Petitioner is currently 3 incarcerated in Victorville United States Penitentiary with a stated release date of December 4, 4 2021.2 The Court directs the Clerk of Court to update Petitioner’s address accordingly. 5 Although Petitioner now appears to be in the custody of the Bureau of Prisons, the Court 6 cannot discern from the docket the status and/or the exact nature of the charges against Petitioner. 7 See U.S.A. v. Von Staich, No. 2:80-cr-00027-TLN (E.D. Cal. July 9, 1980). Nevertheless, 8 Petitioner has been appointed counsel in connection with his current confinement. See Von 9 Staich, No. 2:80-cr-00027-TLN (Doc. No. 29). In his writ of mandamus, Petitioner seeks a court 10 order directing Respondent to terminate his pending parole violation proceedings on the basis that 11 he no longer is on parole. (Doc. No. 1 at 6-7). Accordingly, it appears that Petitioner is 12 challenging the fact or duration of his current custody. If so, Petitioner should seek relief through 13 writ of habeas corpus under 28 U.S.C. § 2255 or § 2241. However, such a petition appears 14 premature because Petitioner must exhaust all administrative remedies prior to filing either 15 petition. See Martinez v. Roberts, 804 F.2d 570, 571 (9th Cir. 1986) (“Federal prisoners are 16 required to exhaust their federal administrative remedies prior to bringing a petition for a writ of 17 habeas corpus in federal court.”); see also Feldman v. Henman, 815 F.2d 1318, 1321 (9th Cir. 18 1987). If the parole violation proceedings are ongoing and/or if Petitioner has not yet appealed a 19 finding that he violated parole, any request for relief under § 2255 or § 2241 would be premature 20 at this time. 21 Because Petitioner is no longer detained in the Fresno County Jail and appears to have 22 been transferred to BOP custody, his petition appears to be moot. Accordingly, before 23 recommending dismissal, the Court will afford Petitioner the opportunity to show cause why his 24 petition should not be dismissed as moot. Alternatively, Petitioner may seek to voluntarily 25 dismiss the instant writ of mandamus in order that he may seek relief through either a § 2241 or 26 § 2255 petition at the appropriate time. 27 28 2 See Bureau of Prison’s Inmate Locator, https://www.bop.gov/inmateloc/, last accessed July 12, 2021. 1 Accordingly, it is ORDERED: 2 1. The Clerk of Court is directed to update Petitioner’s address to Victorville United 3 States Penitentiary. 4 2. The Clerk of Court is directed to serve a copy of this Order and a copy of this Court’s 5 April 16, 2021 Order (Doc. No. 7) by certified mail on Respondent and an electronic copy 6 on the United States Attorney’s Office for the Eastern District of California. 7 3. Within fourteen (14) days of receipt of this Order, Petitioner is ordered to show cause 8 why his petition should not be dismissed as moot or notify the Court whether he wishes to 9 voluntarily dismiss the instant petition. 10 Dated: _ July 13,2021 Mihaw. □□□ foareh Zack 12 HELENA M. BARCH-KUCHTA 3 UNITED STATES MAGISTRATE JUDGE 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28