(HC) Rojas-Tena v. Benov, No. 1:2013cv00488 - Document 28 (E.D. Cal. 2014)

Court Description: FINDINGS and RECOMMENDATIONS Recommending that Respondent's 26 Motion to Dismiss be Granted and the 1 Petition for Writ of Habeas Corpus be Dismissed as Moot signed by Magistrate Judge Stanley A. Boone on 12/22/2014. Referred to Judge Lawrence J. O'Neill. Objections to F&R due by 1/26/2015. (Sant Agata, S)

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1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 11 ALFONZO ROJAS-TENA, Petitioner, 12 13 14 15 Case No. 1:13-cv-00488-LJO-SAB-HC FINDINGS AND RECOMMENDATION REGARDING RESPONDENT’S MOTION TO DISMISS v. MICHAEL L. BENOV, (ECF No. 26) Respondent. 16 17 Petitioner was formerly in the custody of the Federal Bureau of Prisons (BOP) 18 proceeding pro se with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. 19 Respondent is represented in this action by Melanie L. Alsworth of the Office of the United 20 States Attorney for the Eastern District of California. 21 I. 22 BACKGROUND 23 Petitioner was in the custody of the BOP at the Taft Correctional Institution located in 24 Taft, California, pursuant to a judgment of the United States District Court, District of Idaho, for 25 conspiracy to distribute 50 grams or more of methamphetamine, in violation of 21 U.S.C. § 846 26 and 21 U.S.C. § 841(a)(1). Petitioner was sentenced to serve a determinate prison term of 27 seventy months in federal prison. (Motion to Dismiss, Ex. 1, ECF No. 13). 28 On April 4, 2013, Petitioner filed the instant petition for writ of habeas corpus in this 1 1 Court. Petitioner challenges a disciplinary proceeding, in which he was found guilty of 2 possession of stolen property and sanctioned with a loss of twenty-seven days of good conduct 3 credits and six months of commissary privileges. On October 22, 2013, this Court entered an order adopting the findings and 4 5 recommendation to dismiss the petition for writ of habeas corpus. (ECF No. 18). On November 6 4, 2013, Petitioner filed an appeal with the Ninth Circuit Court of Appeals. (ECF No. 20). In 7 February 2014, Petitioner requested that the challenged incident report be reconsidered for code 8 violation 305, Possession of Anything Not Authorized. (Motion to Dismiss at 2). On April 30, 9 2014, Christopher Cruz, a Disciplinary Hearing Officer, conducted a disciplinary rehearing and 10 found that the Petitioner committed the act of Possession of Anything Not Authorized. (Motion 11 to Dismiss, Ex. 1). The Ninth Circuit Court of Appeals granted Respondent’s unopposed motion 12 for remand and the judgment of the district court was vacated. (ECF Nos. 23 and 24). On October 21, 2014, Respondent filed the instant motion to dismiss. Respondent argues 13 14 that Petitioner’s claims are now moot, because he is no longer serving a sentence and there are 15 no further consequences for his challenged disciplinary proceeding. Respondent has provided 16 the Court with a copy of Petitioner’s Inmate Profile showing that Petitioner was released from 17 the custody of BOP and transferred to the custody of the Immigration and Naturalization Service 18 (INS) on July 17, 2014. (Motion to Dismiss, Ex. 2). Therefore, Petitioner is no longer in the 19 custody of which he complains, and the petition is moot. 1 The case or controversy requirement of Article III of the Federal Constitution deprives 20 21 the Court of jurisdiction to hear moot cases. See Iron Arrow Honor Soc’y v. Heckler, 464 U.S. 22 67, 70, 104 S.Ct. 373, 374-75 (1983) (per curiam). A case becomes moot if “the issues presented 23 are no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Murphy v. 24 Hunt, 455 U.S. 478, 481, 102 S.Ct. 1181, 1183 (1982) (per curiam) (internal citations omitted). 25 Federal courts are “without power to decide questions that cannot affect the rights of the litigants 26 before them.” North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 404 (1971) (per curiam). 27 1 Even if Petitioner was still in the custody of which he complains, the Petition would still be moot because 28 Petitioner received a rehearing for the challenged disciplinary proceeding and his good conduct time was restored. 2 1 When a petitioner is released from the custody of which he complains, there is no further relief a 2 habeas court can grant, and the habeas petition is moot. Picrin-Peron v. Rison, 930 F.2d 773, 3 776 (9th Cir. 1991). Therefore, because Petitioner is no longer in custody, the petition is moot. 4 II. 5 RECOMMENDATION 6 7 Accordingly, the Court RECOMMENDS that: 8 1. Respondent’s motion to dismiss be GRANTED; and 9 2. The petition for writ of habeas corpus be DISMISSED as moot. This Findings and Recommendation is submitted to the assigned United States District 10 11 Court Judge, pursuant to the provisions of 28 U.S.C. § 636(b)(1)(B) and Rule 304 of the Local 12 Rules of Practice for the United States District Court, Eastern District of California. Within 13 thirty (30) days after being served with a copy, any party may file written objections with the 14 Court. Such a document should be captioned “Objections to Magistrate Judge’s Findings and 15 Recommendation.” Replies to the objections shall be served and filed within fourteen (14) days 16 after service of the objections. The Court will then review the Magistrate Judge’s ruling 17 pursuant to 28 U.S.C. § 636(b)(1)(C). The parties are advised that failure to file objections 18 within the specified time may result in the waiver of rights on appeal. Wilkerson v. Wheeler, __ 19 F.3d __, __, No. 11-17911, 2014 WL 6435497, at *3 (9th Cir. Nov. 18, 2014) (citing Baxter v. 20 Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991)). 21 22 23 IT IS SO ORDERED. 24 Dated: December 22, 2014 UNITED STATES MAGISTRATE JUDGE 25 26 27 28 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 4

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