(HC) Randall v. The State of California, No. 2:2010cv00580 - Document 23 (E.D. Cal. 2011)

Court Description: FINDINGS and RECOMMENDATIONS signed by Magistrate Judge Kendall J. Newman on 05/09/11 RECOMMENDING that the 1 Petition for Writ of Habeas Corpus be dismissed; Objections to these F&Rs due w/i 21 days; referred to Judge Garland E. Burrell, Jr. (Benson, A.)
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(HC) Randall v. The State of California Doc. 23 1 2 3 4 5 6 7 8 IN THE UNITED STATES DISTRICT COURT 9 FOR THE EASTERN DISTRICT OF CALIFORNIA 10 ROBERT BERT RANDALL, 11 12 13 14 15 16 Petitioner, No. 2: 10-cv-0580 GEB KJN P Respondent. FINDINGS AND RECOMMENDATIONS vs. RICK HILL, / Petitioner is a former state prisoner proceeding without counsel in this habeas 17 corpus action filed pursuant to 28 U.S.C. § 2254. By order filed March 31, 2011, this court noted 18 that petitioner had been released on parole, and thus directed petitioner to show cause why this 19 action should not be dismissed as moot. (Dkt. No. 22.) Petitioner was accorded thirty days 20 within which to respond to the court’s order. More than thirty days have passed, and petitioner 21 has not responded to the court’s order or otherwise communicated with the court. 22 “[T]he essence of habeas corpus is an attack by a person in custody upon the 23 legality of that custody, and . . . the traditional function of the writ is to secure release from 24 illegal custody.” Preiser v. Rodriguez, 411 U.S. 475, 484 (1973). A habeas petition is moot after 25 a prisoner’s release if the petition presents no remaining case or controversy. Nonnette v. Small, 26 316 F.3d 872, 876-77 (9th Cir. 2002). This action therefore appears to be moot, and petitioner 1 Dockets.Justia.com 1 has apparently abandoned it, thus warranting dismissal pursuant to Local Rule 110, and Federal 2 Rule of Civil Procedure 41(b). 3 4 Accordingly, IT IS HEREBY RECOMMENDED that petitioner’s application for a writ of habeas corpus be dismissed. 5 These findings and recommendations are submitted to the United States District 6 Judge assigned to the case, pursuant to the provisions of 28 U.S.C. § 636(b)(l). Within 21 days 7 after being served with these findings and recommendations, any party may file written 8 objections with the court and serve a copy on all parties. Such a document should be captioned 9 “Objections to Magistrate Judge’s Findings and Recommendations.” If petitioner files 10 objections, he shall also address whether a certificate of appealability should issue and, if so, why 11 and as to which issues. A certificate of appealability may issue under 28 U.S.C. § 2253 “only if 12 the applicant has made a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 13 2253(c)(3). Any response to the objections shall be filed and served within 14 days after service 14 of the objections. The parties are advised that failure to file objections within the specified time 15 may waive the right to appeal the District Court’s order. Martinez v. Ylst, 951 F.2d 1153 (9th 16 Cir. 1991). 17 DATED: May 9, 2011 18 19 _____________________________________ KENDALL J. NEWMAN UNITED STATES MAGISTRATE JUDGE 20 21 rand580.f&r.dsms 22 23 24 25 26 2