Opinion
C/A No. 0:18-1155-RBH-PJG
10-03-2018
Steven Spagnoli, Petitioner, v. Warden of the Perry Correctional Institution, Respondent.
REPORT AND RECOMMENDATION
Petitioner Steven Spagnoli, a self-represented state prisoner, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. This matter is before the court pursuant to 28 U.S.C. § 636(b) and Local Civil Rule 73.02(B)(2) (D.S.C.) for a Report and Recommendation on the respondent's motion to dismiss in which he informs the court that Spagnoli is recently deceased. (ECF No. 29; see also Certificate of Death, ECF No. 29-1.)
A petitioner seeking relief under 28 U.S. C. § 2254 must be in custody to be entitled to relief. 28 U.S.C. § 2254. Thus, the death of the petitioner renders a habeas petition moot. See Dove v. United States, 423 U.S. 325 (1976) (per curiam) (dismissing a petition for certiorari when the Court was advised that the petitioner had died); see also Khingratsaiphon v. Bush, Civil Action No. 1:14-cv-01890-JMC, 2016 WL 6403431 (D.S.C. Oct. 28, 2016) (same).
Accordingly, the court recommends that Spagnoli's Petition be dismissed with prejudice.
/s/_________
Paige J. Gossett
UNITED STATES MAGISTRATE JUDGE October 3, 2018
Columbia, South Carolina
The parties' attention is directed to the important notice on the next page.
Notice of Right to File Objections to Report and Recommendation
The parties are advised that they may file specific written objections to this Report and Recommendation with the District Judge. Objections must specifically identify the portions of the Report and Recommendation to which objections are made and the basis for such objections. "[I]n the absence of a timely filed objection, a district court need not conduct a de novo review, but instead must 'only satisfy itself that there is no clear error on the face of the record in order to accept the recommendation.'" Diamond v. Colonial Life & Acc. Ins. Co., 416 F.3d 310 (4th Cir. 2005) (quoting Fed. R. Civ. P. 72 advisory committee's note).
Specific written objections must be filed within fourteen (14) days of the date of service of this Report and Recommendation. 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b); see Fed. R. Civ. P. 6(a), (d). Filing by mail pursuant to Federal Rule of Civil Procedure 5 may be accomplished by mailing objections to:
Robin L. Blume, Clerk
United States District Court
901 Richland Street
Columbia, South Carolina 29201
Failure to timely file specific written objections to this Report and Recommendation will result in waiver of the right to appeal from a judgment of the District Court based upon such Recommendation. 28 U.S.C. § 636(b)(1); Thomas v. Arn, 474 U.S. 140 (1985); Wright v. Collins, 766 F.2d 841 (4th Cir. 1985); United States v. Schronce, 727 F.2d 91 (4th Cir. 1984).