Opinion
No. 2:13-cv-0138 LKK CKD P
2013-10-11
RONALD JAMES LUCERO, Petitioner, v. LINDA PERSONS, Respondent.
ORDER AND
FINDINGS AND RECOMMENDATIONS
Petitioner is proceeding with an application for writ of habeas corpus under 28 U.S.C. § 2254. On February 26, 2002, the Superior Court of Solano County found petitioner not guilty by reason of insanity of committing certain offenses including assault with a deadly weapon by a prisoner. Pursuant to that finding, petitioner was committed to the California Department of State Hospitals under California Penal Code § 1026.
In this action, petitioner challenges a 2011 denial of a petition for restoration of sanity filed under California Penal Code § 1026.2. On October 10, 2013, respondent filed a motion to dismiss in which respondent provides proof that on October 2, 2013 a subsequent motion for restoration of sanity was granted by the Superior Court of Solano County and petitioner was ordered released from the Department of State Hospitals to the custody of the California Department of Corrections and Rehabilitation.
In light of these facts, the court will recommend that petitioner's application for writ of habeas corpus be dismissed as moot. The court notes that petitioner has filed a motion for an evidentiary hearing. In light of the foregoing, that motion will be denied.
Accordingly, IT IS HEREBY ORDERED that petitioner's motion for an evidentiary hearing (ECF No. 20) is denied.
IT IS HEREBY RECOMMENDED that:
1. Respondent's motion to dismiss (ECF No. 21) be granted;
2. Petitioner's application for a writ of habeas corpus be dismissed; and
3. This case be closed.
These findings and recommendations are submitted to the United States District Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days after being served with these findings and recommendations, any party may file written objections with the court and serve a copy on all parties. Such a document should be captioned "Objections to Magistrate Judge's Findings and Recommendations." In his objections petitioner may address whether a certificate of appealability should issue in the event he files an appeal of the judgment in this case. See Rule 11, Federal Rules Governing Section 2254 Cases (the district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant). Any response to the objections shall be served and filed within fourteen days after service of the objections. The parties are advised that failure to file objections within the specified time may waive the right to appeal the District Court's order. Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991).
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CAROLYN K. DELANEY
UNITED STATES MAGISTRATE JUDGE