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)

Download PDF
1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 KENT KEIGWIN, Case No.: 3:16-cv-01451-GPC-NLS Petitioner, 12 13 v. 14 ORDER ADOPTING REPORT AND RECOMMENDATION, GRANTING MOTION TO DISMISS, AND DISMISSING PETITION AS MOOT J. LIZARRAGA, Respondent. 15 [ECF Nos. 14, 17.] 16 17 18 19 20 On June 10, 2016, Petitioner Kent Keigwin (“Petitioner”), a state inmate 21 proceeding pro se and in forma pauperis, filed a Petition for Writ of Habeas Corpus 22 (“Petition”) pursuant to 28 U.S.C. § 2254 challenging his judgment of conviction in the 23 Superior Court of California in San Diego. (Dkt. No. 1.) On October 12, 2016, 24 Respondent J. Lizarraga (“Respondent”) filed a motion to dismiss the Petition, requesting 25 that the Court dismiss the Petition as moot, because Petitioner died on August 8, 2016. 26 (Dkt. No. 14 at 2, 4.) 27 28 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 1 3:16-cv-01451-GPC-NLS 1 dismiss and dismiss the Petition as moot. (Dkt. No. 17.) For the reasons set forth below, 2 this Court ADOPTS the Magistrate Judge’s Report, GRANTS Respondent’s motion to 3 dismiss the Petition, and DISMISSES AS MOOT the Petition. 4 Federal Rule of Civil Procedure 72(b) and 28 U.S.C. § 636(b)(1) set forth a district 5 judge’s duties in connection with a magistrate judge’s report and recommendation. The 6 district judge must “make a de novo determination of those portions of the report to 7 which objection is made,” and “may accept, reject, or modify, in whole or in part, the 8 finding or recommendations made by the magistrate judge.” 28 U.S.C. § 636(b)(1); see 9 also United States v. Remsing, 874 F.2d 614, 617 (9th Cir. 1989). But “[t]he statute 10 makes it clear that the district judge must review the magistrate judge’s findings and 11 recommendations de novo if objection is made, but not otherwise.” United States v. 12 Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc) (emphasis in original). 13 In this case, the Court may adopt the Report on the basis that it is unopposed. See 14 Reyna-Tapia, 328 F.3d at 1121. Where a habeas petitioner dies while the petition is 15 pending, the petition must be dismissed as moot. Garceau v. Woodford, 399 F.3d 1101 16 (9th Cir. 2005); Griffey v. Lindsey, 349 F.3d 1157 (9th Cir. 2003). Respondent provided 17 proof that Mr. Keigwin died on August 8, 2016. (Dkt. No. 14 at 4.) Accordingly, the 18 Court ADOPTS the Magistrate Judge’s Report, GRANTS Respondent’s motion to 19 dismiss the Petition, and DISMISSES AS MOOT the Petition. 20 21 IT IS SO ORDERED. Dated: December 15, 2016 22 23 24 25 26 27 28 2 3:16-cv-01451-GPC-NLS

Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.

Why Is My Information Online?