Torres-Sainz v. Benov
FINDINGS and RECOMMENDATIONS recommending that the Petition for Writ of Habeas Corpus pursuant to 28:2241 be DISMISSED as MOOT re 1 Petition for Writ of Habeas Corpus ; referred to Judge O'Neill,signed by Magistrate Judge Sheila K. Oberto on 06/28/17. (Objections to F&R due : (30-Day Deadline) (Martin-Gill, S)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF CALIFORNIA
FINDINGS AND RECOMMENDATION
THAT THE COURT DISMISS THE
PETITION AS MOOT
Case No. 1:13-cv-00896-LJO-SKO HC
MICHAEL L. BENOV,
Petitioner, a federal prisoner proceeding pro se with a petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2241, contended that his due process rights were violated when his
disciplinary hearing was conducted by a Disciplinary Hearing Officer ("DHO") employed by the
contract (non-Bureau of Prisons) institution in which he was confined. Following this Court’s
denial of the petition and entry of judgment for Respondent on July 14, 2015, Petitioner appealed to
the U.S. Court of Appeals for the Ninth Circuit.
In April 2016, while the appeal was pending, the disciplinary charges were reheard by a
Disciplinary Hearing Officer (DHO) employed by the Bureau of Prisons. The DHO found
insufficient evidence to support the charges and expunged the incident report. Petitioner’s lost
good conduct time was restored.
On March 15, 2017, the Ninth Circuit remanded the case to this Court to permit Respondent
to supplement the record and to allow the District Court to determine whether to retain jurisdiction.
The mandate was entered May 18, 2017. Thereafter, Respondent moved to dismiss the case as
moot. Petitioner did not file opposition to the motion.
Having reviewed the documentation submitted by Respondent in support of the motion,
including the declaration of Richard Deveraux, Disciplinary Hearing Officer, Federal Bureau of
Prisons, Western Regional Office, Stockton, California, and documentation of the expungement of
the disciplinary incident, the undersigned finds Respondent's motion to be supported by evidence
establishing resolution of the underlying disciplinary action. Accordingly, the undersigned
RECOMMENDS that the petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 be
dismissed as moot.
These Findings and Recommendations will be submitted to the United States District Judge
assigned to the case, pursuant to the provisions of 28 U.S.C ' 636(b)(1). Within thirty (30) days
after being served with these Findings and Recommendations, either party may file written
objections with the Court. The document should be captioned AObjections to Magistrate Judge=s
Findings and Recommendations.@ Replies to the objections, if any, shall be served and filed within
fourteen (14) days after service of the objections. The parties are advised that failure to file
objections within the specified time may constitute waiver of the right to appeal the District Court's
order. Wilkerson v. Wheeler, 772 F.3d 834, 839 ((9th Cir. 2014) (citing Baxter v. Sullivan, 923
F.2d 1391, 1394 (9th Cir. 1991)).
IT IS SO ORDERED.
June 28, 2017
Sheila K. Oberto
UNITED STATES MAGISTRATE JUDGE
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