Whisler v. Hernandez

Filing 15

ORDER ADOPTING REPORT AND RECOMMENDATIONS at Docket 14 re 1 Petition for Writ of Habeas Corpus and 13 Motion to Dismiss. Respondent's Motion to Dismiss at Docket 13 is GRANTED, and Mr. Whisler's § 2241 petition at Docket 1 is DISMISSED as moot. The Clerk of Court shall enter a final judgment accordingly. See order for details. Signed by Judge Sharon L. Gleason on 1/8/2025. (SCD, COURT STAFF)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF ALASKA
ZEBULON WHISLER,
Petitioner,
v.
SUPERINTENDENT HERNANDEZ,

Case No. 3:24-cv-00109-SLG-KFR

Respondent.
ORDER ON REPORT AND RECOMMENDATION
Before the Court at Docket 1 is Petitioner Zebulon Whisler’s Petition for a
Writ of Habeas Corpus Under 28 U.S.C. § 2241. Respondent Superintendent
Hernandez filed a Motion to Dismiss the Petition at Docket 13. The motion was
referred to the Honorable Magistrate Judge Kyle F. Reardon. At Docket 14, Judge
Reardon issued his Report and Recommendation, in which he recommended that
Respondent’s Motion to Dismiss be granted and Mr. Whisler’s § 2241 petition be
dismissed as moot. No objections to the Report and Recommendation were filed.
The matter is now before this Court pursuant to 28 U.S.C. § 636(b)(1). That
statute provides that a district court “may accept, reject, or modify, in whole or in
part, the findings or recommendations made by the Magistrate Judge.” 1 A court is
to “make a de novo determination of those portions of the Magistrate Judge’s
report or specified proposed findings or recommendations to which objection is

1

28 U.S.C. § 636(b)(1).

made.” 2

However, § 636(b)(1) does not “require district court review of a

magistrate’s factual or legal conclusions, under a de novo or any other standard,
when neither party objects to those findings.” 3
The Magistrate Judge recommended that the Court grant Respondent’s
Motion to Dismiss because Mr. Whisler is no longer in state pretrial custody, as he
has been convicted and sentenced on his state charge. 4 The Magistrate Judge
therefore also recommended that Mr. Whisler’s petition be dismissed as moot.
The Court has reviewed the Report and Recommendation and agrees with its
analysis. Accordingly, the Court adopts the Report and Recommendation, and IT
IS ORDERED that Respondent’s Motion to Dismiss at Docket 13 is GRANTED,
and Mr. Whisler’s § 2241 petition at Docket 1 is DISMISSED as moot.
The Clerk of Court shall enter a final judgment accordingly. A certificate of
appealability shall not be issued by this Court, because reasonable jurists could
not debate whether the petition should have been resolved in a different manner.
See U.S.C. § 2253(c)(1)(A); Slack v. McDaniel, 529 U.S. 473, 484 (2000).
DATED this 8th day of January 2025, at Anchorage, Alaska.
/s/ Sharon L. Gleason
UNITED STATES DISTRICT JUDGE

2

Id.

Thomas v. Arn, 474 U.S. 140, 150 (1985); see also United States v. Reyna-Tapia, 328 F.3d 1114,
1121 (9th Cir. 2003).

3

4

Docket 14 at 2-3.

Case No. 3:24-cv-00109-SLG-KFR, Whisler v. Hernandez
Order on Report and Recommendation
Page 2 of 2