Cardenas-Leal v. Lucero et al

Filing 18

ORDER ADOPTING IN FULL THE REPORT AND RECOMMENDATION 16 and the Petition for Writ of Habeas Corpus is DENIED and DISMISSED WITH PREJUDICE. IT IS FURTHER ORDERED the Motion for Preliminary Injunction (Doc. 2 ) is DENIED AS MOOT. (See document for further details). Signed by Senior Judge Roslyn O Silver on 10/10/17. (LAD)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Daniel Alejandro Cardenas-Leal,
Petitioner,

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ORDER

v.

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No. CV-17-00914-PHX-ROS

Enrique Lucero, et al.,

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Respondents.

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On September 7, 2017, Magistrate Judge John Z. Boyle issued a Report and

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Recommendation (“R&R”) recommending the petition for writ of habeas corpus be

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denied and dismissed with prejudice. Petitioner did not file objections. The R&R will be

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adopted in full, subject to the following regarding the nature of the dismissal.

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The R&R concludes the petition should be dismissed based on mootness. Courts

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disagree on whether the dismissal of a petition for writ of habeas corpus based on

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mootness should be with or without prejudice. In general, the Ninth Circuit views “a

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dismissal for mootness [as] a dismissal for lack of jurisdiction.” Tur v. YouTube, Inc.,

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562 F.3d 1212, 1214 (9th Cir. 2009). And “[d]ismissals for lack of subject-matter

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jurisdiction . . . must be without prejudice, because a lack of jurisdiction deprives the

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dismissing court of any power to adjudicate the merits of the case.” Hampton v. Pac. Inv.

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Mgmt. Co. LLC, 869 F.3d 844, 846 (9th Cir. 2017). Some district courts, however, have

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concluded the particular context of a moot habeas petition means a dismissal with

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prejudice is appropriate. See, e.g, Noyola v. Dep’t of Homeland Sec., No. SACV 15-

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00544-JGB KK, 2015 WL 3644006, at *2 (C.D. Cal. June 8, 2015); Hearn v. Sanders,

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No. CV 09-2220-PA (AGR), 2009 WL 3073128, at *4 (C.D. Cal. Sept. 19, 2009). Those

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courts reason a moot habeas petition involves conduct that cannot possibly recur and,

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therefore, a dismissal with prejudice is appropriate. Id.

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In this case, the R&R reasoned the petition should be dismissed with prejudice and

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Petitioner did not file any objections. There is a reasonable basis for concluding a

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dismissal with prejudice is appropriate and, absent objections, there is no need to wade

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into the issue in more detail. Therefore, the Court will adopt the R&R in full.

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Accordingly,

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IT IS ORDERED the Report and Recommendation (Doc. 16) is ADOPTED IN

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FULL and the Petition for Writ of Habeas Corpus is DENIED and DISMISSED WITH

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PREJUDICE.

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IT IS FURTHER ORDERED the Motion for Preliminary Injunction (Doc. 2) is
DENIED AS MOOT.
Dated this 10th day of October, 2017.

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Honorable Roslyn O. Silver
Senior United States District Judge

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