(HC) Benitez v. Rawers, et al., No. 1:2006cv00142 - Document 37 (E.D. Cal. 2010)

Court Description: ORDER VACATING 28 FINDINGS AND RECOMMENDATIONS; DISMISSING Petition for Writ of Habeas Corpus AS MOOT; ORDER Directing Clerk of Court to Terminate Action and ***DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY***, signed by District Judge Lawrence J. O'Neill on 04/8/2010. (Martin, S)

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(HC) Benitez v. Rawers, et al. Doc. 37 1 2 3 UNITED STATES DISTRICT COURT 4 EASTERN DISTRICT OF CALIFORNIA 5 VICTOR BENITEZ, 1:06-cv-00142 LJO SMS HC 6 Petitioner, ORDER VACATING FINDINGS AND RECOMMENDATION, DISMISSING PETITION FOR WRIT OF HABEAS CORPUS AS MOOT, DIRECTING CLERK OF COURT TO TERMINATE ACTION, AND DECLINING TO ISSUE CERTIFICATE OF APPEALABILITY 7 v. 8 9 10 SCOTT P. RAWERS, Warden, Respondent. 11 / [Doc. 28] 12 Petitioner is a state prisoner proceeding pro se with a petition for writ of habeas corpus 13 pursuant to 28 U.S.C. § 2254. 14 On January 28, 2010, the Magistrate Judge issued Findings and Recommendation that the 15 Petition for Writ of Habeas Corpus be GRANTED, and the Governor’s 2003 reversal of the 16 Board of Parole Hearings’ 2002 decision setting a parole release date be vacated. This Findings 17 and Recommendation was served on all parties and contained notice that any objections were to 18 be filed within thirty (30) days of the date of service of the order. 19 On March 30, 2010, Respondent filed timely objections to the Findings and 20 Recommendation. (Court Doc. 35.) Then, on April 7, 2010, Respondent filed a notice of 21 Petitioner’s removal from the United States. (Court Doc. 26.) 22 The case or controversy requirement of Article III of the Federal Constitution deprives the 23 Court of jurisdiction to hear moot cases. Iron Arrow Honor Soc’y v. Heckler, 464 U.S. 67, 70 24 104 S.Ct. 373, 374-75 (1983); NAACP., Western Region v. City of Richmond, 743 F.2d 1346, 25 1352 (9th Cir. 1984). A case becomes moot if the “the issues presented are no longer ‘live’ or 26 the parties lack a legally cognizable interest in the outcome.” Murphy v. Hunt, 455 U.S. 478, 27 481, 102 S.Ct. 1181, 1183 (1984). The Federal Court is “without power to decide questions that 28 1 Dockets.Justia.com 1 cannot affect the rights of the litigants before them” North Carolina v. Rice, 404 U.S. 244, 246, 2 92 S.Ct. 402, 406 (1971) per curiam, quoting Aetna Life Ins. Co. v. Hayworth, 300 U.S. 227, 3 240-241, 57 S.Ct. 461, 463-464 (1937). To satisfy the Article III case or controversy 4 requirement, a litigant “must have suffered some actual injury that can be redressed by a 5 favorable judicial decision.” Iron Arrow, 464 U.S. at 70, 104 S.Ct. at 375; Simon v. Eastern Ky. 6 Welfare Rights Org., 426 U.S. 26, 38, 96 S.Ct. 1617, 1924 (1976); NAACP, Western Region, 7 743 F.2d at 1353. Because Petitioner has been removed from the United States, the instant 8 challenge to his release on parole and/or credit toward his parole term in the United States is now 9 MOOT.1 10 Accordingly, IT IS HEREBY ORDERED that: 11 1. 12 The Findings and Recommendation issued January 28, 2010, is HEREBY VACATED; 13 2. The Petition for Writ of Habeas Corpus is DISMISSED as MOOT; 14 3. The Clerk of Court is directed to terminate this action in its entirety; and, 15 4. The Court declines to issue a Certificate of Appealability. 28 U.S.C. § 2253(c); 16 Slack v. McDaniel, 529 U.S. 473, 484 (2000) (in order to obtain a COA, 17 petitioner must show: (1) that jurists of reason would find it debatable whether the 18 petition stated a valid claim of a denial of a constitutional right; and (2) that jurists 19 of reason would find it debatable whether the district court was correct in its 20 procedural ruling. Slack v. McDaniel, 529 U.S. 473, 484 (2000). In the present 21 case, the Court does not find that jurists of reason would not find it debatable 22 whether the petition was properly dismissed as moot. Petitioner has not made the 23 required substantial showing of the denial of a constitutional right. 24 IT IS SO ORDERED. 25 Dated: b9ed48 April 8, 2010 /s/ Lawrence J. O'Neill UNITED STATES DISTRICT JUDGE 26 27 1 28 Petitioner was released from custody on April 9, 2009 to a 5-year determinate term, and subsequently deported to Mexico. (Court Docs. 30, 36 .) 2

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