Torres-Sainz v. Benov

Filing 31

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)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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MARIANO TORRES-SAINZ,

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Petitioner,
FINDINGS AND RECOMMENDATION
THAT THE COURT DISMISS THE
PETITION AS MOOT

v.

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Case No. 1:13-cv-00896-LJO-SKO HC

MICHAEL L. BENOV,
Respondent.

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Petitioner, a federal prisoner proceeding pro se with a petition for writ of habeas corpus

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pursuant to 28 U.S.C. § 2241, contended that his due process rights were violated when his

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disciplinary hearing was conducted by a Disciplinary Hearing Officer ("DHO") employed by the

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contract (non-Bureau of Prisons) institution in which he was confined. Following this Court’s

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denial of the petition and entry of judgment for Respondent on July 14, 2015, Petitioner appealed to

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the U.S. Court of Appeals for the Ninth Circuit.

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In April 2016, while the appeal was pending, the disciplinary charges were reheard by a

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Disciplinary Hearing Officer (DHO) employed by the Bureau of Prisons. The DHO found

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insufficient evidence to support the charges and expunged the incident report. Petitioner’s lost

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good conduct time was restored.

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On March 15, 2017, the Ninth Circuit remanded the case to this Court to permit Respondent

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to supplement the record and to allow the District Court to determine whether to retain jurisdiction.

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The mandate was entered May 18, 2017. Thereafter, Respondent moved to dismiss the case as
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moot. Petitioner did not file opposition to the motion.

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Having reviewed the documentation submitted by Respondent in support of the motion,

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including the declaration of Richard Deveraux, Disciplinary Hearing Officer, Federal Bureau of

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Prisons, Western Regional Office, Stockton, California, and documentation of the expungement of

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the disciplinary incident, the undersigned finds Respondent's motion to be supported by evidence

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establishing resolution of the underlying disciplinary action. Accordingly, the undersigned

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RECOMMENDS that the petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 be

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dismissed as moot.
These Findings and Recommendations will be submitted to the United States District Judge

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assigned to the case, pursuant to the provisions of 28 U.S.C ' 636(b)(1). Within thirty (30) days

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after being served with these Findings and Recommendations, either party may file written

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objections with the Court. The document should be captioned AObjections to Magistrate Judge=s

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Findings and Recommendations.@ Replies to the objections, if any, shall be served and filed within

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fourteen (14) days after service of the objections. The parties are advised that failure to file

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objections within the specified time may constitute waiver of the right to appeal the District Court's

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order. Wilkerson v. Wheeler, 772 F.3d 834, 839 ((9th Cir. 2014) (citing Baxter v. Sullivan, 923

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F.2d 1391, 1394 (9th Cir. 1991)).

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IT IS SO ORDERED.
Dated:

June 28, 2017

/s/

Sheila K. Oberto

UNITED STATES MAGISTRATE JUDGE

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