Wise v. Ryan et al

Filing 40

ORDER ACCEPTING 38 REPORT AND RECOMMENDATION. ORDERED that the Petition for Writ of Habeas Corpus (Doc. 1 ) is dismissed as moot. ORDERED a certificate of appealability is denied. FINALLY ORDERED directing the Clerk to enter final judgment consistent with this Order and dismiss the case. Signed by Judge Michael T Liburdi on 10/14/20. (EJA)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Danny Wise,

No. CV-19-05076-PHX-MTL
Petitioner,

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v.

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ORDER

Attorney General of the State of Arizona, et
al.,

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Respondents.

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Pending before the Court is the Report and Recommendation (R & R) by Magistrate

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Judge Camille D. Bibles, recommending that Petitioner Danny Wise’s Petition for Writ of

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Habeas Corpus (the “Petition”) (Doc. 1) be dismissed as moot pursuant to 28

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U.S.C. § 2254. (Doc. 38.) For reasons stated below, the Court will adopt Judge Bibles’

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R & R.

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I.

BACKGROUND

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Petitioner Danny Wise filed the Petition on August 30, 2019, asserting ineffective

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assistance of counsel and violations of his right to due process of law in his state criminal

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proceedings. (Doc. 1.) Respondents filed an answer on December 6, 2019. (Doc. 18.)

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Petitioner mailed a reply on March 26, 2020, which was docketed on March 30, 2020.

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(Doc. 36.) Mail sent to Petitioner by the Court was returned as undeliverable on April 10,

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2020, with a note indicating that Petitioner was deceased. (Docs. 37; 38 at 4.) Public

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records from the Arizona Department of Corrections state that Petitioner died on March

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29, 2020. (Doc. 38 at 4.)

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Judge Bibles issued the R & R on May 6, 2020. (Doc. 38.) It recommends that, in

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light of Petitioner’s death, the Petition be denied as moot. See, e.g., Dove v. United States,

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423 U.S. 325, 325 (1976) (per curiam) (dismissing a petition for a writ of certiorari because

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the petitioner had died); Griffey v. Lindsey, 349 F.3d 1157, 1157 (9th Cir. 2003) (dismissing

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appeal of denial of § 2254 relief because the petitioner was deceased). No objections have

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been filed to the R & R.

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II.

LEGAL STANDARD

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When a federal district court reviews a state prisoner’s habeas corpus petition

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pursuant to 28 U.S.C. § 2254, “it must decide whether the petitioner is ‘in custody in

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violation of the Constitution or laws or treaties of the United States.’” Coleman v.

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Thompson, 501 U.S. 722, 730 (1991) (quoting 28 U.S.C. § 2254). When reviewing a

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Magistrate Judge’s R & R, this Court reviews de novo those portions of the report to which

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an objection is made and “may accept, reject, or modify, in whole or in part, the findings

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or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1)(C).

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Parties have fourteen days from the service of a copy of the R & R to file specific

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written objections with the Court. 28 U.S.C. ' 636(b)(1)(C). District courts are not

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required to conduct “any review at all . . . of any issue that is not the subject of an

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objection.” Thomas v. Arn, 474 U.S. 140, 149 (1985).

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III.

DISCUSSION

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Having reviewed the R & R, and no objections having been made by any party, the

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Court hereby incorporates and adopts the R & R. The Court will also decline to issue a

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certificate of appealability. A certificate of appealability may only issue when the petitioner

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“has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. §

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2253(c)(2). A certificate of appealability will not be issued because, in light of Petitioner’s

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death, the relief is now moot.

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IV.

CONCLUSION

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Accordingly,

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IT IS ORDERED that the Report and Recommendation (Doc. 38) is accepted.

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IT IS FURTHER ORDERED that the Petition for Writ of Habeas Corpus (Doc.
1) is dismissed as moot.

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IT IS FURTHER ORDERED a certificate of appealability is denied.

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IT IS FINALLY ORDERED directing the Clerk to enter final judgment consistent

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with this Order and dismiss the case.
Dated this 14th day of October, 2020.

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