Benitez v. Rawers, et al.

Filing 37

ORDER VACATING 28 FINDINGS AND RECOMMENDATIONS; DISMISSING Petition for Writ of Habeas Corpus AS MOOT; ORDER Directing Clerk of Court to Terminate Action and ***DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY***, signed by District Judge Lawrence J. O'Neill on 04/8/2010. (Martin, S)

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1 2 3 4 5 VICTOR BENITEZ, 6 Petitioner, 7 v. 8 9 10 11 12 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 13 pursuant to 28 U.S.C. 2254. 14 On January 28, 2010, the Magistrate Judge issued Findings and Recommendation that the 15 Petition for Writ of Habeas Corpus be GRANTED, and the Governor's 2003 reversal of the 16 Board of Parole Hearings' 2002 decision setting a parole release date be vacated. This Findings 17 and Recommendation was served on all parties and contained notice that any objections were to 18 be filed within thirty (30) days of the date of service of the order. 19 On March 30, 2010, Respondent filed timely objections to the Findings and 20 Recommendation. (Court Doc. 35.) Then, on April 7, 2010, Respondent filed a notice of 21 Petitioner's removal from the United States. (Court Doc. 26.) 22 The case or controversy requirement of Article III of the Federal Constitution deprives the 23 Court of jurisdiction to hear moot cases. Iron Arrow Honor Soc'y v. Heckler, 464 U.S. 67, 70 24 104 S.Ct. 373, 374-75 (1983); NAACP., Western Region v. City of Richmond, 743 F.2d 1346, 25 1352 (9th Cir. 1984). A case becomes moot if the "the issues presented are no longer `live' or 26 the parties lack a legally cognizable interest in the outcome." Murphy v. Hunt, 455 U.S. 478, 27 481, 102 S.Ct. 1181, 1183 (1984). The Federal Court is "without power to decide questions that 28 1 SCOTT P. RAWERS, Warden, Respondent. / [Doc. 28] ORDER VACATING FINDINGS AND RECOMMENDATION, DISMISSING PETITION FOR WRIT OF HABEAS CORPUS AS MOOT, DIRECTING CLERK OF COURT TO TERMINATE ACTION, AND DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY 1:06-cv-00142 LJO SMS HC UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 cannot affect the rights of the litigants before them" North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 406 (1971) per curiam, quoting Aetna Life Ins. Co. v. Hayworth, 300 U.S. 227, 240-241, 57 S.Ct. 461, 463-464 (1937). To satisfy the Article III case or controversy requirement, a litigant "must have suffered some actual injury that can be redressed by a favorable judicial decision." Iron Arrow, 464 U.S. at 70, 104 S.Ct. at 375; Simon v. Eastern Ky. Welfare Rights Org., 426 U.S. 26, 38, 96 S.Ct. 1617, 1924 (1976); NAACP, Western Region, 743 F.2d at 1353. Because Petitioner has been removed from the United States, the instant challenge to his release on parole and/or credit toward his parole term in the United States is now MOOT.1 Accordingly, IT IS HEREBY ORDERED that: 1. The Findings and Recommendation issued January 28, 2010, is HEREBY VACATED; 2. 3. 4. The Petition for Writ of Habeas Corpus is DISMISSED as MOOT; The Clerk of Court is directed to terminate this action in its entirety; and, The Court declines to issue a Certificate of Appealability. 28 U.S.C. 2253(c); Slack v. McDaniel, 529 U.S. 473, 484 (2000) (in order to obtain a COA, petitioner must show: (1) that jurists of reason would find it debatable whether the petition stated a valid claim of a denial of a constitutional right; and (2) that jurists of reason would find it debatable whether the district court was correct in its procedural ruling. Slack v. McDaniel, 529 U.S. 473, 484 (2000). In the present case, the Court does not find that jurists of reason would not find it debatable whether the petition was properly dismissed as moot. Petitioner has not made the required substantial showing of the denial of a constitutional right. IT IS SO ORDERED. Dated: b9ed48 April 8, 2010 /s/ Lawrence J. O'Neill UNITED STATES DISTRICT JUDGE Petitioner was released from custody on April 9, 2009 to a 5-year determinate term, and subsequently d e p o r te d to Mexico. (Court Docs. 30, 36 .) 1 2

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