Prator v. Neven et al

Filing 27

ORDER Granting 22 Motion to Dismiss. The petition for a writ of habeas corpus is DISMISSED WITH PREJUDICE. Petitioner is DENIED A CERTIFICATE OFAPPEALABILITY. Signed by Judge James C. Mahan on 6/28/2013. (Copies have been distributed pursuant to the NEF - SLR)

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UNITED STATES DISTRICT COURT

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DISTRICT OF NEVADA

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TYRONE PRATOR,
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Petitioner,
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vs.
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DWIGHT NEVEN, et al.,
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Respondents.
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____________________________________/

2:10-cv-01209-JCM-VCF
ORDER

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This action is a pro se petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254,
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by a Nevada state prisoner. Before the court is respondents’ motion to dismiss the petition. (ECF
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No. 22).
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I. Background
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On January 27, 2009, petitioner was involved in an incident which caused a correctional
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officer to charge him with disciplinary violations. (Exhibit 2).1 At a March 1, 2009, disciplinary

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hearing, petitioner was found guilty of three rule violations, and as a result, the Nevada Department
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of Corrections (NDOC) forfeited 90 days of good time credit on petitioner’s attempted murder
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The exhibits referenced in this order are found in the court’s record at ECF No. 15 (Exhibits
1-15) and at ECF No. 22 (Exhibits A-C).

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sentence. (Exhibits 4, 6, 7). The July 2, 2009, credit history report on the attempted murder

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sentence shows that on April 2, 2009, 90 days of good time credits were forfeited as a result of the

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January 27, 2009, incident. (Exhibit A). The instant petition for writ of habeas corpus concerns the

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forfeiture of those 90 days of good time credit. (ECF No. 1-1).

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II. Discussion

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Respondents have moved to dismiss the petition. (ECF No. 22). Petitioner did not file an

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opposition to the motion. The failure to oppose the motion constitutes consent to granting the

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motion. Local Rules, Part II, at Rule 7-2(d). Petitioner’s failure to oppose the motion to dismiss

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constitutes adequate grounds to grant the motion, however, the court will analyze the arguments

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made in the motion to dismiss.
Respondents argue that the petition is moot and must be dismissed. Article II, section 2 of

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the United States Constitution provides that the “exercise of judicial power depends on the existence

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of a case or controversy.” Liner v. Jafco, Inc., 375 U.S. 301, 306, n.3 (1964). “The case or

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controversy requirement subsists through all stages of federal judicial proceedings, trial and appellate

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. . . the parties must continue to have a personal stake in the outcome of the lawsuit.” Lewis v.

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Continental Bank Corp., 494 U.S. 472, 477-78 (1990) (internal quotations omitted). Mootness

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occurs when there is no longer a case or controversy. Spencer v. Kemna, 523 U.S. 1, 7 (1998). The

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question of mootness must be resolved by the federal court before it assumes jurisdiction. Henry v.

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Mississippi, 379 U.S. 443, 447 (1965); Liner v. Jafco, 375 U.S. at 304.

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In the instant case, respondents have presented evidence that the 90 days of good time credit

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have been restored to petitioner. Petitioner’s latest credit history report shows that on January 6,

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2012, the warden restored to petitioner the 90 days of forfeited credit at issue in the petition.

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(Exhibit B, at p. 14). The statutory restoration report also shows the restoration and posting of the 90

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days of credit previously forfeited as a result of the January 27, 2009, incident. (Exhibit C). Due to

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the restoration of the 90 days of good time credit, petitioner’s claims are moot, and the petition is

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dismissed with prejudice on this basis.

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III. Certificate of Appealability

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Pursuant to the December 1, 2009, amendment to Rule 11 of the Rules Governing Section

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2254 and 2255 Cases, district courts are required to rule on the certificate of appealability in the

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order disposing of a proceeding adversely to the petitioner or movant, rather than waiting for a notice

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of appeal and request for certificate of appealability to be filed. Rule 11(a). In order to proceed with

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any appeal, petitioner must receive a certificate of appealability. 28 U.S.C. § 2253(c)(1); Fed. R.

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App. P. 22; 9th Cir. R. 22-1; Allen v. Ornoski, 435 F.3d 946, 950-951 (9th Cir. 2006); see also United

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States v. Mikels, 236 F.3d 550, 551-52 (9th Cir. 2001). Generally, a petitioner must make “a

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substantial showing of the denial of a constitutional right” to warrant a certificate of appealability.

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Id.; 28 U.S.C. § 2253(c)(2); Slack v. McDaniel, 529 U.S. 473, 483-84 (2000). “The petitioner must

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demonstrate that reasonable jurists would find the district court's assessment of the constitutional

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claims debatable or wrong.” Id. (quoting Slack, 529 U.S. at 484). In order to meet this threshold

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inquiry, the petitioner has the burden of demonstrating that the issues are debatable among jurists of

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reason; that a court could resolve the issues differently; or that the questions are adequate to deserve

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encouragement to proceed further. Id. In the instant case, no reasonable jurist would find this

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court’s dismissal of the petition debatable or wrong. The court therefore denies petitioner a

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certificate of appealability.

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IV. Conclusion

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IT IS THEREFORE ORDERED that the respondents’ motion to dismiss (ECF No. 22) is
GRANTED. The petition for a writ of habeas corpus is DISMISSED WITH PREJUDICE.
IT IS FURTHER ORDERED that petitioner is DENIED A CERTIFICATE OF
APPEALABILITY.

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IT IS FURTHER ORDERED that the clerk SHALL ENTER JUDGMENT
ACCORDINGLY.
28th
Dated this ______ day of June, 2013.

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UNITED STATES DISTRICT JUDGE
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