Rockers

Filing 37

FINDINGS and RECOMMENDATIONS signed by Magistrate Judge James P. Hutton on 07/06/09 RECOMMENDING that the Temporary Stay 34 be terminated; and 35 Motion To Dismiss be granted; and 12 Amended Petition be denied as moot. Referred to Judge Whaley. Objections to F&R's are due within 10 days of service of this order. (Streeter, J)

1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 v. JAMES ROCKERS,

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF CALIFORNIA ) ) ) ) ) ) ) ) ) ) ) ) NO. CV-06-2330 RHW JPH REPORT AND RECOMMENDATION TO TERMINATE STAY AND GRANT MOTION TO DISMISS PETITION AS MOOT

Petitioner,

THERESA A. SCHWARTZ, Respondent.

BEFORE THE COURT is Respondent's July 2, 2009, motion to dismiss the petition as moot (Ct. Rec. 35) because Mr. Rockers was granted parole on June 26, 2009, when the Governor declined to review the parole recently granted by the Board of Parole Hearings. (Ct. Rec. 35 at 2-3.) Petitioner has filed a statement (Ct. Rec. 36.) The court has

on non-opposition to the dismissal.

considered the motion and record herein. The court finds the petition is moot because Mr. Rockers been granted the relief requested in his petition. granted parole on June 26, 2009. Accordingly, He was has

For the reasons stated above, IT IS RECOMMENDED, the temporary stay (Ct. Rec. 34) be terminated; Respondent's motion to dismiss (Ct. Rec. 35) be GRANTED; and the Petition for Writ of Habeas Corpus (Ct. Rec. 1) be DENIED as moot. OBJECTIONS Any party may object to the magistrate judge's proposed findings, recommendations or report within ten (10) days following service with a copy thereof. Such party shall file with the Clerk

of the Court all written objections, specifically identifying the portions to which objection is being made, and the basis therefor. REPORT AND RECOMMENDATION - 1

1 Attention is directed to Fed. R. Civ. P. 6(e), which adds another 2 three (3) days from the date of mailing if service is by mail. A

3 district judge will make a de novo determination of those portions 4 to which objection is made and may accept, reject, or modify the 5 magistrate judge's determination. The district judge need not 6 conduct a new hearing or hear arguments and may consider the 7 magistrate judge's record and make an independent determination 8 thereon. The district judge may also receive further evidence or

9 recommit the matter to the magistrate judge with instructions. See 10 28 U.S.C. § 636 (b)(1)(CC), and Fed. R. Civ. P. 73. A magistrate

11 judge's recommendation cannot be appealed to a court of appeals; 12 only the district judge's order or judgment can be appealed. 13 The District Court Executive SHALL FILE this report and

14 recommendation and serve copies of it on the referring judge and 15 the parties. 16 17 18 19 20 21 22 23 24 25 26 27 28 REPORT AND RECOMMENDATION - 2 DATED this 6th day of July, 2009. s/ James P. Hutton JAMES P. HUTTON UNITED STATES MAGISTRATE JUDGE