(HC) Cook v. Clark et al, No. 2:2006cv00070 - Document 27 (E.D. Cal. 2009)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Charlene H. Sorrentino on 12/28/09, RECOMMENDING that respondent's 12/16/09 motion to dismiss be granted, and the petitioner's appl for writ of hc be dismissed. MOTION to DISMISS refe rred to Judge Burrell. Within 20 days after being served with these f&r's, any party may file written objections with the court and serve a copy on all parties. Any reply to the objections shall be served and filed within 10 days after service of the objections. (Kastilahn, A)

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(HC) Cook v. Clark et al Doc. 27 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 DOUGLAS K. COOK, 11 12 13 14 15 16 Petitioner, No. CIV S-06-0070 GEB CHS P vs. KEN CLARK, Acting Warden, Respondent. FINDINGS AND RECOMMENDATIONS / Petitioner Douglas K. Cook filed the pending petition for writ of habeas corpus 17 pursuant to 28 U.S.C. §2254, challenging the constitutionality of his 2003 convictions entered in 18 Sacramento County, case number 02F01771. 19 On November 25, 2009, the parties were directed to file a status report and on 20 December 16, 2009, respondent filed a motion to dismiss accompanied by a certified 21 confirmation of petitioner’s death on February 17, 2009, issued by the County of Sacramento 22 Coroner’s Office. The file reflects that the petitioner had been paroled in December of 2007. 23 Article III of the Constitution limits federal courts to the adjudication of actual, 24 ongoing controversies between litigants. Deakins v. Monaghan, 484 U.S. 193, 199 (1988). The 25 basic question in determining mootness is “whether there is a present controversy as to which 26 effective relief can be granted.” Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 1 Dockets.Justia.com 1 900 (9th Cir. 2007). Due to the death of the petitioner in this action, there is no longer a present 2 controversy in this case. The pending petition should be dismissed. See Griffey v. Lindsey, 349 3 F.3d 1157 (9th Cir. 2003). 4 Accordingly, IT IS HEREBY RECOMMENDED that respondent’s December 16, 5 2009 motion to dismiss be granted, and the petitioner’s application for writ of habeas corpus be 6 DISMISSED. 7 These findings and recommendations are submitted to the United States District 8 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within twenty 9 days after being served with these findings and recommendations, any party may file written 10 objections with the court and serve a copy on all parties. Such a document should be captioned 11 “Objections to Magistrate Judge’s Findings and Recommendations.” Any reply to the objections 12 shall be served and filed within ten days after service of the objections. Failure to file objections 13 within the specified time may waive the right to appeal the District Court’s order. Martinez v. 14 Ylst, 951 F.2d 1153 (9th Cir. 1991). 15 DATED: December 28, 2009 16 CHARLENE H. SORRENTINO UNITED STATES MAGISTRATE JUDGE 17 18 19 20 21 22 23 24 25 26 2

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