Timberlake, Norman v. Buss, Ed

Filing 13

Opinion

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NONPRECEDENTIAL DISPOSITION To be cited only in accordance with Fed. R. App. P. 32.1 To be cited only in accordance with of Appeals United States Court Fed. R. App. P. 32.1Not to be cited per Circuit Rule 53 For the Seventh Circuit Chicago, Illinois 60604 December 5, 2007 Before Hon. FRANK H. EASTERBROOK, Chief Judge Hon. KENNETH F. RIPPLE, Circuit Judge Hon. DANIEL A. MANION, Circuit Judge No. 07-1086 NORMAN TIMBERLAKE, Petitioner-Appellant, v. EDWIN G. BUSS, Superintendent, Respondent-Appellee. Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 06 C 1841 Richard L. Young, Judge. No. 07-3228 NORMAN TIMBERLAKE, Plaintiff-Appellant, v. EDWIN G. BUSS, Superintendent, and J. DAVID DONAHUE, Commissioner Indiana Department of Correction, Defendants-Appellees. Appeal from the United States District Court for the Southern District of Indiana, Indianapolis Division. No. 06 C 1859 Richard L. Young, Judge. Nos. 07-1086 and 07-3228 Order Page 2 Norman Timberlake, who was not only the petitioner in a federal collateral attack on his state sentence but also the plaintiff in an action under 42 U.S.C. 1983 contesting the manner in which the state proposed to carry out the capital sentence, died on November 10, 2007, while appeals in both proceedings were pending in this court. Appeal No. 07-1086, which concerns the proceeding under 28 U.S.C. 2254, has abated and is dismissed. See Johnson v. Tennessee, 214 U.S. 485 (1909). The 1983 action has become moot, and the district court's judgment is vacated and the case remanded with instructions to dismiss for lack of a case or controversy. See United States v. Munsingwear, Inc., 340 U.S. 36 (1950).

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