Baker v. Ducart

Filing 22

ORDER and FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Gregory G. Hollows on 1/09/19 VACATING 20 order directing the filing of documents electronically. Also, RECOMMENDING that this action be dismissed as moot. Referred to Judge Kimberly J. Mueller. Objections due within 14 days. (Plummer, M)

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UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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JOHNATHAN ALLAN BAKER,

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No. 2:17-cv-01812 KJM GGH P

Petitioner,
v.

ORDER AND FINDINGS AND
RECOMMENDATIONS

CLARK DUCART,
Respondent.

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Petitioner was a state prisoner proceeding with a petition for writ of habeas corpus

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pursuant to 28 U.S.C. § 2254. On January 8, 2019, respondent filed a notice of petitioner’s death,

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including a declaration from Guadalupe Lopez the Litigation Coordinator at Salinas Valley State

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Prison where petitioner was housed. Fed. R. Civ. P. 25(1). This court “shall entertain an

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application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment

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of a State court only on the ground that he is in custody in violation of the Constitution or laws or

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treaties of the United States.” 28 U.S.C. § 2254(a) (emphasis added). A petitioner must be “in

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custody” under the conviction or sentence in which the petition attacks at the time the petition is

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filed. Maleng v. Cook, 490 U.S. 488, 490-91 (1989); Allen v. State of Oregon, 153 F.3d 1046,

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1048 (9th Cir. 1998). Accordingly, the death of petitioner moots the instant petition because

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petitioner is no longer “in custody” and can no longer challenge his conviction. See Dove v.

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United States, 423 U.S. 325 (1976) (per curiam) (dismissing petition because petitioner had died).
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Accordingly, IT IS HEREBY ORDERED that ECF No. 20 (order directing the filing of
documents electronically) is vacated;

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Further, IT IS HEREBY RECOMMENDED that this action be dismissed as moot.

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These findings and recommendations are 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)(l). Within fourteen days

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after service of these findings and recommendations, any written objections may be filed with the

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court. The document should be captioned “Objections to Magistrate Judge’s Findings and

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Recommendations.” Any response to the objections shall be filed and served within fourteen

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days after service of the objections. Failure to file objections within the specified time may waive

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the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).

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Dated: January 9, 2019

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/s/ Gregory G. Hollows
UNITED STATES MAGISTRATE JUDGE

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