Gebrewold v. Kane et al

Filing 19

ORDER ADOPTING REPORT AND RECOMMENDATION 17 , and DENYING the petition for writ of habeas corpus on grounds of mootness (doc. 1). GRANTING respondents' motion to dismiss on grounds of mootness (doc. 14). DENYING petitioner's motion for preliminary injunction as moot (doc. 2). DENYING a certificate of appealability and leave to proceed in forma pauperis on appeal. Signed by Judge Frederick J Martone on 8/28/12. (DMT)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Napoleon Gebrewold,

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Petitioner,

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vs.

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Katrina Kane, et al.,
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Respondents.
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No. CV 12-00559-PHX-FJM
ORDER

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The court has before it petitioner's petition for writ of habeas corpus (doc. 1),

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petitioner's motion for preliminary injunction (doc. 2), respondents' motion to dismiss for

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mootness (doc. 14), and the Report and Recommendation of the United States Magistrate

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Judge recommending denial of petitioner's petition (doc. 17).

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Petitioner is a citizen of Ethiopia and a lawful permanent resident of the United States.

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He was convicted of possession of a controlled substance in 2010. An immigration judge

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determined that this conviction subjected petitioner to mandatory detention and he was not

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eligible for a bond hearing. Petitioner filed his petition seeking immediate release from

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immigration custody or a custody redetermination hearing before a neutral magistrate with

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the authority to grant bond. He also filed a motion for preliminary injunction seeking an

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order enjoining his detention pending resolution of his petition. On July 10, 2012, an

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immigration judge granted petitioner relief from removal and he was released from custody

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that day. The government moves to dismiss on grounds of mootness. The magistrate judge

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ordered petitioner to file a response to the motion to dismiss, but the order mailed to

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petitioner was returned as unclaimed. Petitioner did not file a response to the motion to

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dismiss or the Report and Recommendation.

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An action is moot "when the issues presented are no longer live or the parties lack a

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legally cognizable interest in the outcome." Lee v. Schmidt-Wenzel, 766 F.2d 1387, 1389

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(9th Cir. 1985) (quotation omitted).

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determination that because petitioner has been granted the relief he requested, this action is

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moot.

The court agrees with the magistrate judge's

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IT IS THEREFORE ORDERED accepting the recommendation of the magistrate

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judge (doc. 17) and DENYING the petition for writ of habeas corpus on grounds of

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mootness (doc. 1).

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IT IS ORDERED GRANTING respondents' motion to dismiss on grounds of
mootness (doc. 14).
IT IS ORDERED DENYING petitioner's motion for preliminary injunction as moot
(doc. 2).
IT IS FURTHER ORDERED DENYING a certificate of appealability and leave
to proceed in forma pauperis on appeal.
DATED this 28th day of August, 2012.

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