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vacating its opinion and remanding to the district court to dismiss the petition as moot after being notified of the death of the petitioner
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No. 99-17643.
Filed November 18, 2003.
Northern District of California, San Jose. D.C. No. CV-97-20703-JF.
Alyssa T. Koo, Heller Ehrman White McAuliffe, San Francisco, CA, for Petitioner-Appellant.
Ronald E. Niver, District Atty. Gen., Peggy S. Ruffra, San Francisco, CA, for Respondent-Appellee.
Before BEEZER, THOMAS, and CLIFTON, Circuit Judges.
ORDER
Wallace Levan Griffey appealed the United States District Court for the Northern District of California's denial of his petition for a writ of habeas corpus. The appeal was argued before us and submitted on February 10, 2003. We affirmed the district court's denial in a published opinion, Griffey v. Lindsey, 345 F.3d 1058 (9th Cir. 2003).
The court has been advised that Griffey died on August 22, 2003 in the custody of the Salinas Valley State Prison. Lindsey's petition for rehearing was filed on October 10, 2003. On October 16, 2003, Lindsey moved to vacate the filed opinion and dismiss the appeal.
It is ordered as follows:
(1) The above referenced opinion is vacated and the petition for rehearing is denied as moot. (2) The petition for a writ of habeas corpus should be dismissed as moot. See Gornto v. MacDougall, 482 F.2d 361, 361 (5th Cir. 1973) (per curiam) (vacating as moot published opinion where habeas appeal was argued and submitted prior to petitioner's death but where opinion was filed after petitioner's death); see also McMann v. Ross, 396 U.S. 118, 118, 90 S.Ct. 395, 24 L.Ed.2d 303 (1969) (per curiam); Hillman v. McCaughtry, 14 F.3d 350, 350-51 (7th Cir. 1994) (per curiam); Knapp v. Baker, 509 F.2d 922, 922-23 (5th Cir. 1975) (per curiam); Hann v. Hawk, 205 F.2d 839, 839-40 (8th Cir. 1953) (per curiam), reh'g denied, 207 F.2d 82 (8th Cir. 1953); (3) This appeal is remanded to the district court for dismissal of the petition for a writ of habeas corpus as moot and for further proceedings as are appropriate.
VACATED AND REMANDED WITH INSTRUCTIONS.