Perez v. Mims

Filing 20

FINDINGS and RECOMMENDATIONS recommending that the Court Dismiss the Petition for Writ of Habeas Corpus and Decline to Issue a Certificate of Appealability re 1 Petition for Writ of Habeas Corpus filed by Elias Mendoza Perez ; referred to Judge Drozd, signed by Magistrate Judge Sheila K. Oberto on 03/07/2017. Objections to F&R due by 4/10/2017 (Martin-Gill, S)

1
2
3
4
5
6
7
8

UNITED STATES DISTRICT COURT

9

EASTERN DISTRICT OF CALIFORNIA

10
11

ELIAS MENDOZA PEREZ,

12

Petitioner,

13
14

v.

No. 1:16-cv-01935-DAD-SKO HC
FINDINGS AND RECOMMENDATION
TO DISMISS PETITION FOR
WRIT OF HABEAS CORPUS AS MOOT

MARGARET MIMS,

15

Respondent.

(Doc. 18)

16
17

Petitioner Elias Mendoza Perez was a federal prisoner proceeding with a petition for writ

18

of habeas corpus pursuant to 28 U.S.C. § 2241 in which he challenged an order of extradition.

19

Contending that the petition is now moot following Petitioner’s February 14, 2017, extradition to

20

Mexico, Respondent has filed a motion to dismiss the petition. Petitioner has not filed a timely

21

response. Having carefully reviewed the record as a whole and applicable law, the undersigned

22

recommends that the Court dismiss the petition as moot.

23

I.

24

Petition Must Be Dismissed as Moot
Federal courts’ constitutional jurisdiction extends only to actual cases or controversies.

25

Iron Arrow Honor Society v. Heckler, 464 U.S. 67, 70-71 (1983). The case or controversy

26

requirement, articulated in Article II, Section 2 of the U.S. Constitution, prevents federal courts

27

from deciding “questions that cannot affect the rights of litigants in the case before them.” Lewis

28
1

1

v. Continental Bank Corp., 494 U.S. 472, 477 (1990) (internal quotation marks omitted). A

2

petition for writ of habeas corpus becomes moot when it no longer presents a case or controversy.

3

Wilson v. Terhune, 319 F.3d 477, 479 (9th Cir. 2003). When a federal court cannot redress a

4

party’s actual injury with a favorable judicial decision, the case is moot and must be dismissed.

5

Spencer v. Kemna, 523 U.S. 1, 7 (1998). “Mootness is jurisdictional.” Burnett v. Lampert, 432

6

F.3d 996, 1000-01 (9th Cir. 2005).

7

Respondent reports that Petitioner was extradited on February 14, 2017, to face pending

8

murder charges in Mexico. Doc. 18 at 4. Because the habeas petition can no longer provide

9

relief from the extradition order, it is now moot. See Lindstrom v. Graber, 203 F.3d 470, 474 (7th

10

Cir. 2000); Qassim v. Bush, 466 F.3d 1073, 1075 (D.C. Cir. 2006). When, as a result of

11

intervening events, a court cannot provide effectual relief in favor of the petitioner, the Court

12

should dismiss the proceeding as moot. Calderon v. Moore, 518 U.S. 149, 150 (1996).

13

III.

14

Certificate of Appealability
A petitioner seeking a writ of habeas corpus has no absolute entitlement to appeal a

15

district court's denial of his petition, but may only appeal in certain circumstances. Miller-El v.

16

Cockrell, 537 U.S. 322, 335-36 (2003). The controlling statute in determining whether to issue a

17

certificate of appealability is 28 U.S.C. § 2253, which provides:

18
19

(a) In a habeas corpus proceeding or a proceeding under section 2255
before a district judge, the final order shall be subject to review, on appeal, by
the court of appeals for the circuit in which the proceeding is held.

20
21
22
23
24
25
26
27

(b) There shall be no right of appeal from a final order in a proceeding
to test the validity of a warrant to remove to another district or place for
commitment or trial a person charged with a criminal offense against the
United States, or to test the validity of such person's detention pending
removal proceedings.
(c) (1) Unless a circuit justice or judge issues a certificate of
appealability, an appeal may not be taken to the court of appeals from—
(A) the final order in a habeas corpus proceeding in which the
detention complained of arises out of process issued by a State court; or
(B) the final order in a proceeding under section 2255.

28
2

1

(2) A certificate of appealability may issue under paragraph (1)
only if the applicant has made a substantial showing of the denial of a
constitutional right.

2
3

(3) The certificate of appealability under paragraph (1) shall
indicate which specific issues or issues satisfy the showing required by
paragraph (2).

4
5

If a court denies a habeas petition, the court may only issue a certificate of appealability

6
7

"if jurists of reason could disagree with the district court's resolution of his constitutional claims

8

or that jurists could conclude the issues presented are adequate to deserve encouragement to

9

proceed further." Miller-El, 537 U.S. at 327; Slack v. McDaniel, 529 U.S. 473, 484 (2000).

10

Although the petitioner is not required to prove the merits of his case, he must demonstrate

11

"something more than the absence of frivolity or the existence of mere good faith on his . . .

12
13

part." Miller-El, 537 U.S. at 338.
Reasonable jurists would not find the Court's determination that it must dismiss the habeas

14
15

petition as moot to be debatable or wrong, or conclude that the issues presented required further

16

adjudication. Accordingly, the Court declines to issue a certificate of appealability.

17

IV.

18
19

Conclusion and Recommendation
The undersigned recommends that the Court dismiss the petition for writ of habeas corpus

and decline to issue a certificate of appealability.
20
21

These Findings and Recommendations will be submitted to the United States District

22

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

23

(30) days after being served with these Findings and Recommendations, either party may file

24

written objections with the Court. The document should be captioned AObjections to Magistrate

25

Judge=s Findings and Recommendations.@ Replies to the objections, if any, shall be served and

26

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

27
to file objections within the specified time may constitute waiver of the right to appeal the District
28
3

1

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

2

Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)).

3
4

IT IS SO ORDERED.

5
6

Dated:

March 7, 2017

/s/

Sheila K. Oberto

UNITED STATES MAGISTRATE JUDGE

7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
4

.