Keigwin v. Lizarraga

Filing 19

ORDER Adopting 17 Report and Recommendation, Granting 14 Motion to Dismiss, and Dismissing Petition as Moot. Signed by Judge Gonzalo P. Curiel on 12/15/16. (All non-registered users served via U.S. Mail Service)(dlg)

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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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KENT KEIGWIN,

Case No.: 3:16-cv-01451-GPC-NLS
Petitioner,

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v.

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ORDER ADOPTING REPORT AND
RECOMMENDATION, GRANTING
MOTION TO DISMISS, AND
DISMISSING PETITION AS MOOT

J. LIZARRAGA,
Respondent.

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[ECF Nos. 14, 17.]

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On June 10, 2016, Petitioner Kent Keigwin (“Petitioner”), a state inmate

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proceeding pro se and in forma pauperis, filed a Petition for Writ of Habeas Corpus

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(“Petition”) pursuant to 28 U.S.C. § 2254 challenging his judgment of conviction in the

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Superior Court of California in San Diego. (Dkt. No. 1.) On October 12, 2016,

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Respondent J. Lizarraga (“Respondent”) filed a motion to dismiss the Petition, requesting

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that the Court dismiss the Petition as moot, because Petitioner died on August 8, 2016.

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(Dkt. No. 14 at 2, 4.)

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Before the Court is a Report and Recommendation (“Report”) issued by Magistrate
Judge Nita L. Stormes recommending that this Court grant Respondent’s motion to
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3:16-cv-01451-GPC-NLS

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dismiss and dismiss the Petition as moot. (Dkt. No. 17.) For the reasons set forth below,

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this Court ADOPTS the Magistrate Judge’s Report, GRANTS Respondent’s motion to

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dismiss the Petition, and DISMISSES AS MOOT the Petition.

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Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1) set forth a district

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judge’s duties in connection with a magistrate judge’s report and recommendation. The

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district judge must “make a de novo determination of those portions of the report to

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which objection is made,” and “may accept, reject, or modify, in whole or in part, the

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finding or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1); see

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also United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989). But “[t]he statute

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makes it clear that the district judge must review the magistrate judge’s findings and

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recommendations de novo if objection is made, but not otherwise.” United States v.

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Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original).

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In this case, the Court may adopt the Report on the basis that it is unopposed. See

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Reyna-Tapia, 328 F.3d at 1121. Where a habeas petitioner dies while the petition is

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pending, the petition must be dismissed as moot. Garceau v. Woodford, 399 F.3d 1101

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(9th Cir. 2005); Griffey v. Lindsey, 349 F.3d 1157 (9th Cir. 2003). Respondent provided

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proof that Mr. Keigwin died on August 8, 2016. (Dkt. No. 14 at 4.) Accordingly, the

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Court ADOPTS the Magistrate Judge’s Report, GRANTS Respondent’s motion to

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dismiss the Petition, and DISMISSES AS MOOT the Petition.

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IT IS SO ORDERED.
Dated: December 15, 2016

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3:16-cv-01451-GPC-NLS