Bone v. Kernan

Filing 26

ORDER Denying 24 Motion to Reopen Case signed by Magistrate Judge Jeremy D. Peterson on 03/29/2019. (Flores, E)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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DONALD DOUGLAS BONE,

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Petitioner,

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v.

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Case No. 1:18-cv-00665-AWI-JDP
ORDER DENYING MOTION TO REOPEN
CASE
ECF No. 24

SCOTT KERNAN,

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Respondent.
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Petitioner Donald Douglas Bone was a state prisoner who, without counsel, sought a writ

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of habeas corpus under 28 U.S.C. § 2254. We dismissed his petition in August 2018 based on

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petitioner’s failure to exhaust his state-court remedies. ECF Nos. 15, 22. Since that dismissal,

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petitioner has been released from prison; he is now in ICE custody.1
Petitioner moves to reopen his case, arguing that this court dismissed his petition based on

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a mistaken belief that he had not exhausted his state-court remedies. ECF No. 24. We find

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petitioner’s argument frivolous. The California Supreme Court’s order attached to petitioner’s

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motion indicates that the California Supreme Court denied petitioner’s request in March 2019—

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months after this court’s dismissal for lack of exhaustion. Id. at 3. The California Supreme

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Petitioner, a Canadian citizen, faces deportation after sexually abusing his adopted daughter “20
to 30 times,” starting shortly after her fifth birthday. Bone v. Lewis, No. 01-cv-4971, 2006 WL
1390442, at *2 (N.D. Cal. May 19, 2006), aff’d, 284 F. App’x 456 (9th Cir. 2008).
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Court’s order is hardly evidence that this court erred in dismissing the petition. Petitioner’s

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motion also presents another problem: he has been released from prison, and this court lacks

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jurisdiction to consider his challenge against pending deportation absent final order of removal—

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as Judge Jennifer L. Thurston and Judge Erica P. Grosjean have already explained to petitioner in

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other cases. See Bone v. Holder, No. 14-cv-1747, ECF No. 26 at 5-6; Bone v. Sessions, No. 18-

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cv-971, ECF No. 11 at 3. In addition, the alleged violation in this case—miscalculation of

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petitioner’s date of release from state prison—concerns a term of state custody that has already

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concluded; it has nothing to do with petitioner’s current ICE custody. Because petitioner has

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been released from state custody, the petition is moot, and this court lacks jurisdiction to grant

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habeas relief. See Kittel v. Thomas, 620 F.3d 949, 951 (9th Cir. 2010).

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ORDER

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Petitioner’s motion to reopen case, ECF No. 24, is denied.

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IT IS SO ORDERED.

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Dated:

March 29, 2019

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UNITED STATES MAGISTRATE JUDGE

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