Lemon v. Benov

Filing 22

FINDINGS and RECOMMENDATIONS to Dismiss the 1 Petition for Writ of Habeas Corpus and Direct the Clerk to Close the Case; Objections Deadline: Thirty (30) Days signed by Magistrate Judge Sheila K. Oberto on 10/28/2013. Referred to Judge Anthony W. Ishii. Objections to F&R due by 12/2/2013. (Sant Agata, S)

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1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 11 ROHAN ST. AURBY LEMON, Case No. 1:13-cv-00481-AWI-SKO-HC 12 FINDINGS AND RECOMMENDATIONS TO DISMISS THE PETITION FOR WRIT OF HABEAS CORPUS (DOC. 1) AND DIRECT THE CLERK TO CLOSE THE CASE 13 Petitioner, v. 14 15 MICHAEL L. BENOV, Warden, Respondent. 16 17 OBJECTIONS DEADLINE: THIRTY (30) DAYS Petitioner is a federal prisoner proceeding pro se and in forma 18 pauperis with a petition for writ of habeas corpus pursuant to 28 19 U.S.C. § 2241. The matter has been referred to the Magistrate Judge 20 pursuant to 28 U.S.C. § 636(b)(1) and Local Rules 302 through 304. 21 Pending before the Court is the petition, which was filed on April 22 3, 2013. Respondent filed an answer on June 20, 2013, and 23 Petitioner filed a traverse on July 3, 2013. Further, without 24 objection, Respondent filed a reply and a supplement thereto on July 25 10 and 12, 2013. Petitioner has neither responded to Respondent’s 26 filings nor sought an extension of time to respond to them. 27 I. 28 Petitioner, an inmate of the Taft Correctional Institution Background 1 1 (TCI), challenges the loss of fifty-four days of good time credit 2 that Petitioner suffered as a result of prison disciplinary findings 3 he engaged in fighting on January 4, 2001, and sexual acts on 4 October 3, 2000. (Pet., doc. 1 at 7, 11-15.) 5 the loss of credit and seeks release. 6 following claims in the petition: Petitioner challenges (Id. at 3.) He raises the 1) because the disciplinary 7 hearing officer was not an employee of the Federal Bureau of Prisons 8 (BOP) and thus lacked the authority to conduct the disciplinary 9 hearing and make findings resulting in punishment, including 10 disallowance of good time credit, Petitioner suffered a violation of 11 his right to due process of law; 2) because the hearing officer was 12 not an employee of the BOP but rather was an employee of a private 13 entity with a financial interest in the disallowance of good time 14 credits, Petitioner’s due process right to an independent and 15 impartial decision maker at the disciplinary hearing was violated. 16 (Id. at 3-7.) 17 Respondent seeks dismissal of the petition for mootness and for 18 Petitioner’s failure to exhaust administrative remedies. 19 II. Mootness 20 Federal courts lack jurisdiction to decide cases that are moot 21 because the courts= constitutional authority extends to only actual 22 cases or controversies. Iron Arrow Honor Society v. Heckler, 464 23 U.S. 67, 70-71 (1983). Article III requires a case or controversy 24 in which a litigant has a personal stake in the outcome of the suit 25 throughout all stages of federal judicial proceedings and has 26 suffered some actual injury that can be redressed by a favorable 27 judicial decision. Id. A petition for writ of habeas corpus 28 becomes moot when it no longer presents a case or controversy under 2 1 Article III, ' 2 of the Constitution. 2 477, 479 (9th Cir. 2003). Wilson v. Terhune, 319 F.3d The petition is moot where a petitioner=s 3 claim for relief cannot be redressed by a favorable decision of the 4 court issuing a writ of habeas corpus. Burnett v. Lampert, 432 F.3d 5 996, 1000-01 (9th Cir. 2005) (quoting Spencer v. Kemna, 523 U.S. 1, 6 7 (1998)). Mootness is jurisdictional; a moot petition must be 7 dismissed because nothing remains before the Court to be remedied. 8 See, Cole v. Oroville Union High School District, 228 F.3d 1092, 9 1098-99 (9th Cir. 2000); Spencer v. Kemna, 523 U.S. 1, 18. 10 On July 3, 2013, Petitioner filed a notice of change of address 11 from TCI to what appears to be a private residence. (Doc. 19.) 12 Respondent confirms that Petitioner was released from TCI. (Doc. 13 20, 1.) 14 When, because of intervening events, a court cannot give any 15 effectual relief in favor of the petitioner, the proceeding should 16 be dismissed as moot. Calderon v. Moore, 518 U.S. 149, 150 (1996). 17 It appears that the only relief Petitioner sought was early release 18 from custody, and he has been released from custody. Petitioner has 19 not asserted any factual or legal basis that would preclude a 20 finding of mootness. Thus, the Court concludes that the matter is 21 moot because the Court may no longer grant any effective relief. 22 See, Badea v. Cox, 931 F.2d 573, 574 (9th Cir. 1991) (habeas claim 23 was moot where a former inmate sought placement in a community 24 treatment center but was subsequently released on parole and no 25 longer sought such a transfer); Kittel v. Thomas, 620 F.3d 949 (9th 26 Cir. 2010) (dismissing as moot a petition seeking early release 27 where the petitioner was released and where there was no live, 28 justiciable question on which the parties disagreed). 3 Accordingly, it will be recommended that the petition be 1 2 dismissed as moot. 3 III. Recommendations 4 Based on the foregoing, it is RECOMMENDED that: 5 1) The petition for writ of habeas corpus be DISMISSED as moot; 6 and 7 2) The Clerk be DIRECTED to close the action. 8 These findings and recommendations are submitted to the United 9 States District Court Judge assigned to the case, pursuant to the 10 provisions of 28 U.S.C. ' 636 (b)(1)(B) and Rule 304 of the Local 11 Rules of Practice for the United States District Court, Eastern 12 District of California. Within thirty (30) days after being served 13 with a copy, any party may file written objections with the Court 14 and serve a copy on all parties. Such a document should be 15 captioned AObjections to Magistrate Judge=s Findings and 16 Recommendations.@ Replies to the objections shall be served and 17 filed within fourteen (14) days (plus three (3) days if served by 18 mail) after service of the objections. The Court will then review 19 the Magistrate Judge=s ruling pursuant to 28 U.S.C. ' 636 (b)(1)(C). 20 The parties are advised that failure to file objections within the 21 specified time may waive the right to appeal the District Court=s 22 order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). 23 24 25 IT IS SO ORDERED. 26 27 Dated: October 28, 2013 /s/ Sheila K. Oberto UNITED STATES MAGISTRATE JUDGE 28 4

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