Michael Anthony Burkett v. Lopez

Filing 16

FINDINGS and RECOMMENDATION Regarding Respondent's Motion to Dismiss 15 , signed by Magistrate Judge Sandra M. Snyder on 5/3/11. Referred to Judge O'Neill. (Verduzco, M)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA
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MICHAEL ANTHONY BURKETT,

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1:10-CV-01878 LJO SMS HC

Petitioner,

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FINDINGS AND RECOMMENDATION
REGARDING RESPONDENT’S MOTION
TO DISMISS

v.

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[Doc. #15]
WARDEN LOPEZ,

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Respondent.
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/

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Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus
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pursuant to 28 U.S.C. § 2254.
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On October 8, 2010, Petitioner filed the instant petition for writ of habeas corpus. Petitioner
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contends he was denied his due process rights during two disciplinary hearings held in 2008. On
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August 25, 2010, Petitioner was released on parole. (See Resp’t’s Mot. to Dismiss, Ex. 1.)
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DISCUSSION
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The case or controversy requirement of Article III of the Federal Constitution deprives the
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Court of jurisdiction to hear moot cases. Iron Arrow Honor Soc’y v. Heckler, 464 U.S. 67, 70
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(1983); NAACP., Western Region v. City of Richmond, 743 F.2d 1346, 1352 (9th Cir. 1984). A
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case becomes moot if the “the issues presented are no longer ‘live’ or the parties lack a legally
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cognizable interest in the outcome.” Murphy v. Hunt, 455 U.S. 478, 481 (1984). The Federal Court
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is “without power to decide questions that cannot affect the rights of the litigants before them.”
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North Carolina v. Rice, 404 U.S. 244, 246 (1971) per curiam, quoting Aetna Life Ins. Co. v.
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U .S. D istrict C ourt
E. D . C alifornia

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Hayworth, 300 U.S. 227, 240-241 (1937).

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The instant petition is moot because Petitioner has already been released on parole. A

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presumption of collateral consequences does not apply to prison disciplinary proceedings, and

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Petitioner has not alleged collateral consequences sufficient to avoid dismissal on the ground of

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mootness. Wilson v. Terhune, 319 F.3d 477, 480 (9th Cir.2003).

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RECOMMENDATION

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Accordingly, the court HEREBY RECOMMENDS that Respondent’s motion to dismiss the
petition for mootness be GRANTED.

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This Findings and Recommendation is submitted to the Honorable Lawrence J. O’Neill,

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United States District Court Judge, pursuant to the provisions of 28 U.S.C. § 636 (b)(1)(B) and Rule

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304 of the Local Rules of Practice for the United States District Court, Eastern District of California.

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Within thirty (30) days after date of service of this Findings and Recommendation, any party may

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file written objections with the court and serve a copy on all parties. Such a document should be

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captioned “Objections to Magistrate Judge’s Findings and Recommendations.” Replies to the

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objections shall be served and filed within ten (10) days after date of service of the objections. The

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Court will then review the Magistrate Judge’s ruling pursuant to 28 U.S.C. § 636 (b)(1)(C). The

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parties are advised that failure to file objections within the specified time may waive the right to

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appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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IT IS SO ORDERED.

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Dated:
icido3

May 3, 2011

/s/ Sandra M. Snyder
UNITED STATES MAGISTRATE JUDGE

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