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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UNITED STATES DISTRICT COURT

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SOUTHERN DISTRICT OF CALIFORNIA

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DAVID GARLAND ATWOOD II,

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CASE NO. 17cv1320-LAB (WVG)

Petitioner,

ORDER GRANTING MOTION TO
SUPPLEMENT MOTION TO DISMISS;
AND

vs.
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UNITED STATES OF AMERICA, et al.,

ORDER OF DISMISSAL

Respondents.

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The United States moved to dismiss Petitioner David Atwood’s petition for writ of

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mandamus. When Atwood failed to oppose the motion, the Court ordered him to show cause

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why the motion should not be granted. (See Docket no. 24.) He was required to file an

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opposition by December 15. The Court’s order warned him that if he did not do so, his non-

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opposition would be deemed consent to the motion’s being granted, as provided by

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applicable local rules. Since then, he has filed nothing.

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The United States recently filed an ex parte application (Docket no. 25) to supplement

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its earlier motion to dismiss. That application is GRANTED. In its supplemental filing, the

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government informed the Court that Atwood’s supervised release was revoked and he was

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remanded into custody for a period of 72 months. The Court has reviewed the docket in the

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related criminal case, United States v. Atwood, 15cr45-HTW-FKB (S.D. Miss.) and takes

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notice of the records in that case as provided by Fed. R. Evid. 201. See United States v.

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17cv1320

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Howard, 381 F.3d 873, 876 n.1 (9th Cir. 2004) (court may take judicial notice of court

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records in another case).

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The records confirm the government’s representations. On January 5 of this year,

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Judge Henry Wingate issued his judgment of revocation. (Docket no. 308.) Atwood has

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filed a notice of appeal of that court’s decision. The government suggests that this renders

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Atwood’s claim moot, although it might also be said that Atwood’s claim has become unripe

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for adjudication. Either way, the Court lacks jurisdiction to adjudicate it. See North Carolina

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v. Rice, 404 U.S. 244, 245–46 (1971) (holding that federal courts lack jurisdiction to decide

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moot questions); Austin v. City & Cty of Honolulu, 840 F.3d 678, 682 (9th Cir. 1988) (“Unless

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a claim is ripe, we do not have jurisdiction to hear it.”). Atwood either prevails on appeal or

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serves his 72-month sentence, the Court could not grant him any relief even if he could show

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he were eligible for it.

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The petition is DISMISSED without prejudice but without leave to amend, both for lack

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of jurisdiction, and also because Atwood by his non-opposition has consented to its

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dismissal. All other pending requests are DENIED AS MOOT and all pending dates are

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VACATED.

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IT IS SO ORDERED.
DATED: January 10, 2018

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HONORABLE LARRY ALAN BURNS
United States District Judge

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17cv1320