Foulks v. Gordy et al (INMATE 3)

Filing 18

ORDER that Foulk's 1 Petition for Writ of Habeas Corpus under 28 U.S.C. 2254 is DISMISSED as moot as further set out in the order. The Clerk of Court is DIRECTED to close this case. Signed by Chief Judge William Keith Watkins on 8/18/2017. (Attachments: # 1 Civil Appeals Checklist)(dmn, )

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF ALABAMA
NORTHERN DIVISION
JOHNNY FOULKS, # 286566,
Petitioner,
v.
CHRISTOPHER GORDY, Warden,
and STEVEN T. MARSHALL, Attorney
General of the State of Alabama,
Respondents.

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CASE NO. 2:15-CV-730-WKW
[WO]

ORDER
On September 28, 2015, Johnny Foulks (“Foulks”), an Alabama prisoner
appearing pro se, filed this petition for writ of habeas corpus under 28 U.S.C. § 2254.
(Doc. # 1.) The petition asserts a challenge to Foulks’s manslaughter conviction
entered in the Montgomery County Circuit Court in October 2012, for which Foulks
was sentenced to 20 years’ imprisonment. The respondents answered Foulks’s
petition, arguing it is barred by the one-year limitation period in 28 U.S.C.
§ 2244(d)(1). (Doc. # 10.) Foulks was then allowed to file a response attempting to
show cause why his petition should not be dismissed as time-barred. (Doc. # 11 &
12.)
On August 3, 2017, the respondents filed a Motion to Dismiss (Doc. # 16) this
action as having been abated by Foulks’s death, which is construed as a “Notice of

Death.” The respondents aver that on August 2, 2017, they learned Foulks died in
February 2017 while in the custody of the Alabama Department of Corrections.
(Doc. # 16, at 1–2.)
Foulks’s § 2254 petition, which seeks his release from confinement, does not
survive his death. The death of a habeas petitioner renders a habeas action moot.
Bruno v. Sec’y, Florida Dep’t of Corr., 700 F.3d 445 (11th Cir. 2012) (vacating
judgment and remanding case to district court with directions to dismiss case as moot
following death of petitioner, who had appealed district court’s denial of his § 2254
petition). See also, e.g., Farmer v. McDaniel, 692 F.3d 1052 (9th Cir. 2012)
(dismissing an appeal as moot upon notification that the inmate had died during the
pendency of his appeal and remanding to the district court for dismissal of the habeas
petition as moot); Penney v. Sec’y, Dep’t of Corr., No. 8:10cv726, 2013 WL
5962971, at *1 (M.D. Fla. Apr. 17, 2013) (dismissing habeas petition as moot, under
instructions from Eleventh Circuit, where habeas petitioner died during pendency of
appeal from district court’s denial of habeas petition).
Based on the foregoing, it is ORDERED that Foulks’s petition for writ of
habeas corpus under 28 U.S.C. § 2254 (Doc. # 1) is DISMISSED as moot.
The Clerk of Court is DIRECTED to close this case.
DONE this 18th day of August, 2017.
/s/ W. Keith Watkins
CHIEF UNITED STATES DISTRICT JUDGE
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