Opinion
No. CIV S-05-0941 LKK DAD P
03-27-2012
RICHARD WOOD, Petitioner, v. JEANNE S. WOODFORD, Director, California Department of Corrections, and ROBERT J. HERNANDEZ, Warden, Richard J. Donovan Correctional Facility, Respondents.
FINDINGS & RECOMMENDATIONS
Petitioner is a state prisoner proceeding through counsel with an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2254. In this federal habeas action petitioner challenged a 2002 judgment of conviction entered against him in the Siskiyou County Superior Court. He sought an order from this court vacating his conviction and ordering him to be retried within a reasonable time or released from custody.
However, in preparing to issue findings and recommendations with respect to the petition, the court has been advised that according to records of the California Department of Corrections and Rehabilitation, petitioner died in custody on June 22, 2009. Accordingly, the court will recommend that this action be dismissed as moot. See Garceau v. Woodford, 399 F.3d 1101 (9th Cir. 2005) ("Because petitioner's death renders this case moot, the petition for writ of habeas corpus should be dismissed as moot."); Griffey v. Lindsey, 349 F.3d 1157 (9th Cir. 2003) (remanding and directing the district court to dismiss a petition for writ of habeas corpus as moot in light of petitioner's death while in custody); Hawkins v. Pliler, No. CIV. S.-04-2495 MCE JFM P, 2007 WL 4374212, at *1 (E.D. Cal. Dec. 14, 2007); see also Dove v. United States, 423 U.S. 325 (1976) (dismissing certiorari petition due to the petitioner's death).
Accordingly, IT IS HEREBY RECOMMENDED that petitioner's application for a writ of habeas corpus be dismissed as moot.
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 twenty-one 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." Failure to file objections within the specified time may waive the right to appeal the District Court's order. Turner v. Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). In any objections filed, counsel for petitioner may address whether a certificate of appealability should issue 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).
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DALE A. DROZD
UNITED STATES MAGISTRATE JUDGE