(HC) Barrett v. Veal, No. 2:2008cv02049 - Document 18 (E.D. Cal. 2010)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Edmund F. Brennan on 2/3/2010 RECOMMENDING that this action be dismissed as moot. Referred to Judge Frank C. Damrell, Jr.; Objections to F&R due w/in 14 days. (Yin, K)

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(HC) Barrett v. Veal Doc. 18 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 ROBERT E. BARRETT 11 Petitioner, No. CIV S-08-2049 FCD EFB P Respondent. FINDINGS AND RECOMMENDATIONS 12 vs. 13 M. VEAL, 14 15 16 / Petitioner is a state prisoner without counsel seeking a writ of habeas corpus pursuant to 17 28 U.S.C. § 2254. Petitioner challenges a thirty day loss of credits. Pet. at 2. According to 18 respondent, however, prison officials restored the thirty days of lost credits in July 2008. Resp.’s 19 Mot. to Dism. at 3, Ex. C. Therefore, respondent asserts that this action should be dismissed 20 because there is no case or controversy underlying the petition. Id. at 1. On December 7, 2009, 21 the court ordered petitioner to show cause why this action should not be dismissed as moot. 22 Petitioner has not responded to the order. 23 Under Article III, § 2 of the federal Constitution, a federal court’s jurisdiction is limited 24 to those cases which present “cases-or-controversies.” Spencer v. Kemna, 523 U.S. 1, 7 (1998). 25 In habeas actions, the case-or-controversy requirement mandates that a petitioner must have 26 suffered, or be threatened with, an actual injury traceable to the respondent and redressable by 1 Dockets.Justia.com 1 issuance of the writ. See id. In general, a habeas petition challenging a prison disciplinary 2 action no longer presents such a case or controversy, and therefore becomes moot, when the 3 punishment for the action has been withdrawn or completed. Wilson v. Terhune, 319 F.3d 477, 4 479 (9th Cir. 2003). If a petitioner is no longer affected by a punishment, then there must be 5 some concrete and continuing injury other than the now-ended punishment--some “collateral 6 consequence” of the punishment--in order to avoid mootness. Spencer, 523 U.S. at 7. There is 7 no presumption of a collateral consequence in prison disciplinary proceedings. Wilson, 319 F.3d 8 at 481. 9 Petitioner does not challenge respondent’s assertion that petitioner’s lost credits were 10 restored. Nor does petitioner identify any collateral consequences or cognizable injury. 11 Therefore, this court cannot provide petitioner with any meaningful relief. 12 Accordingly, IT IS HEREBY RECOMMENDED that this action be dismissed as moot. 13 These findings and recommendations are submitted to the United States District Judge 14 assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within fourteen days 15 after being served with these findings and recommendations, any party may file written 16 objections with the court and serve a copy on all parties. Such a document should be captioned 17 “Objections to Magistrate Judge’s Findings and Recommendations.” Failure to file objections 18 within the specified time may waive the right to appeal the District Court’s order. Turner v. 19 Duncan, 158 F.3d 449, 455 (9th Cir. 1998); Martinez v. Ylst, 951 F.2d 1153 (9th Cir. 1991). In 20 his objections, petitioner may address whether a certificate of appealability should issue in the 21 event he files an appeal of the judgment in this case. See Rule 11, Federal Rules Governing 22 Section 2254 Cases (the district court must issue or deny a certificate of appealability when it 23 enters a final order adverse to the applicant). 24 Dated: February 3, 2010. 25 26 2

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