Atwood II v. United States of America et al

Filing 26

ORDER granting 25 Motion to Supplement Motion to Dismiss; and Order of Dismissal. The petition is dismissed without prejudice but without leave to amend, both for lack of jurisdiction, and also because Atwood by his non-opposition has consented to its dismissal. All other pending requests are denied as moot and all pending dates are vacated. Signed by Judge Larry Alan Burns on 1/10/2018. (All non-registered users served via U.S. Mail Service)(jdt)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 DAVID GARLAND ATWOOD II, 12 CASE NO. 17cv1320-LAB (WVG) Petitioner, ORDER GRANTING MOTION TO SUPPLEMENT MOTION TO DISMISS; AND vs. 13 14 15 UNITED STATES OF AMERICA, et al., ORDER OF DISMISSAL Respondents. 16 17 The United States moved to dismiss Petitioner David Atwood’s petition for writ of 18 mandamus. When Atwood failed to oppose the motion, the Court ordered him to show cause 19 why the motion should not be granted. (See Docket no. 24.) He was required to file an 20 opposition by December 15. The Court’s order warned him that if he did not do so, his non- 21 opposition would be deemed consent to the motion’s being granted, as provided by 22 applicable local rules. Since then, he has filed nothing. 23 The United States recently filed an ex parte application (Docket no. 25) to supplement 24 its earlier motion to dismiss. That application is GRANTED. In its supplemental filing, the 25 government informed the Court that Atwood’s supervised release was revoked and he was 26 remanded into custody for a period of 72 months. The Court has reviewed the docket in the 27 related criminal case, United States v. Atwood, 15cr45-HTW-FKB (S.D. Miss.) and takes 28 notice of the records in that case as provided by Fed. R. Evid. 201. See United States v. -1- 17cv1320 1 Howard, 381 F.3d 873, 876 n.1 (9th Cir. 2004) (court may take judicial notice of court 2 records in another case). 3 The records confirm the government’s representations. On January 5 of this year, 4 Judge Henry Wingate issued his judgment of revocation. (Docket no. 308.) Atwood has 5 filed a notice of appeal of that court’s decision. The government suggests that this renders 6 Atwood’s claim moot, although it might also be said that Atwood’s claim has become unripe 7 for adjudication. Either way, the Court lacks jurisdiction to adjudicate it. See North Carolina 8 v. Rice, 404 U.S. 244, 245–46 (1971) (holding that federal courts lack jurisdiction to decide 9 moot questions); Austin v. City & Cty of Honolulu, 840 F.3d 678, 682 (9th Cir. 1988) (“Unless 10 a claim is ripe, we do not have jurisdiction to hear it.”). Atwood either prevails on appeal or 11 serves his 72-month sentence, the Court could not grant him any relief even if he could show 12 he were eligible for it. 13 The petition is DISMISSED without prejudice but without leave to amend, both for lack 14 of jurisdiction, and also because Atwood by his non-opposition has consented to its 15 dismissal. All other pending requests are DENIED AS MOOT and all pending dates are 16 VACATED. 17 18 IT IS SO ORDERED. DATED: January 10, 2018 19 20 HONORABLE LARRY ALAN BURNS United States District Judge 21 22 23 24 25 26 27 28 -2- 17cv1320

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