Bradford Burbine v. A. Scribner , 445 F. App'x 923 ( 2011 )

FILED
NOT FOR PUBLICATION AUG 02 2011
MOLLY C. DWYER, CLERK
UNITED STATES COURT OF APPEALS U .S. C O U R T OF APPE ALS
FOR THE NINTH CIRCUIT
BRADFORD G. BURBINE, No. 09-17329
Petitioner - Appellant, D.C. No. 2:04-cv-01691-LKK-
EFB
v.
A.K. SCRIBNER, MEMORANDUM *
Respondent - Appellee.
Appeal from the United States District Court
for the Eastern District of California
Lawrence K. Karlton, District Judge, Presiding
Argued and Submitted May 13, 2011
San Francisco, California
Before: B. FLETCHER and THOMAS, Circuit Judges, and ROSENTHAL,
District Judge.**
*
This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.
**
The Honorable Lee H. Rosenthal, District Judge for the U.S. District
Court for Southern Texas, Houston, sitting by designation.
Bradford G. Burbine appealed the district court’s judgment dismissing his
28 U.S.C. § 2254 habeas petition. Burbine’s counsel has notified this court that
Burbine died on May 12, 2011. We must dismiss an appeal as moot if we lack
power to grant relief. See Picrin-Peron v. Rison, 930 F.2d 773, 775 (9th Cir.
1991). Burbine’s counsel, citing United States v. Oberlin, 718 F.2d 894 (9th Cir.
1983), argues that her client’s death requires abating not only this appeal but also
the underlying state-court criminal proceedings, including the conviction. The
Oberlin court observed that “[d]eath pending appeal of a criminal conviction
abates not only the appeal but all proceedings in the prosecution from its
inception.” Id. at 895 (citing Durham v. United States, 401 U.S. 481, 483 (1971)
(per curiam)) (emphasis added). But abatement does not apply once a convicted
defendant has exhausted the appeals available as a matter of right in the underlying
criminal case. See Dove v. United States, 423 U.S. 325, 325 (1976) (per curiam)
(dismissing, without abatement, a certiorari petition from an appellate decision in
the criminal proceedings after the defendant’s death and explicitly overruling
Durham to the extent the cases conflict); Krantz v. United States, 224 F.3d 125,
126–27 (2d Cir. 2000) (per curiam) (refusing to abate the criminal proceedings
when the petitioner died after the filing of a notice of appeal from the denial of his
§ 2255 motion, but before a certificate of appealability was granted). Burbine’s
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death during this appeal from the denial of his § 2254 motion requires dismissing
the appeal as moot, but does not require abating the prosecution “from its
inception.”
DISMISSED AS MOOT.
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