(DP) Avila v. Chappell ( 2020 )

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 EASTERN DISTRICT OF CALIFORNIA 9 10 JOHNNY AVILA, JR., Case No. 1:11-cv-01196-AWI-SAB 11 Petitioner, DEATH PENALTY CASE 12 v. FINDINGS AND RECOMMENDATION RECOMMENDING GRANTING 13 RON DAVIS, Warden of California State PETITIONER’S MOTION TO DISMISS Prison at San Quentin, PETITION AS MOOT 14 Respondent.1 (ECF No. 67) 15 FOURTEEN (14) DAY DEADLINE TO 16 OBJECT 17 18 Petitioner, Johnny Avila Jr., was convicted and sentenced to death in Fresno County 19 Superior Court on March 21, 1995. The judgment of conviction and sentence was affirmed by 20 the California Supreme Court on December 21, 2006. The United States Supreme Court denied 21 the petition for writ of certiorari on March 26, 2007. Petitioner’s state habeas petition was 22 denied on June 15, 2011. On July 19, 2011, Petitioner initiated this action by filing requests for 23 appointment of counsel, stay of execution, and in forma pauperis status. On June 14, 2012, 24 Petitioner, through counsel, filed his federal habeas petition pursuant to 28 U.S.C. § 2254. On 25 September 7, 2012, these proceedings were stayed for state exhaustion. The exhaustion petition 26 27 1 Pursuant to Fed. R. Civ. P. 25(d), Ron Davis, Warden of San Quentin State Prison, is substituted as Respondent in WOOO 4.441 UV VALI PAVED OWFAWD bMVVULITICIIL VO VeiVvercy Payee ¢e¢vic 1 | filed in the California Supreme Court remains pending. 2 On August 25, 2020, counsel for Petitioner filed a motion to dismiss the petition filed in 3 | this action as moot, based upon Petitioner’s death on June 26, 2020. The motion attaches 4 | Petitioner’s certificate of death as Exhibit A thereto. 5 As this Court has observed: 6 Federal courts have jurisdiction to hear cases and controversies. U.S. Const. art. Ill, § 2. An actual controversy must exist between the parties throughout all 7 stages of the proceeding. Alvarez v. Smith, —-U.S. ——, ——, 130 S.Ct. 576, 580, 175 L.Ed.2d 447 (2009). An action becomes moot when the issues “are no 8 longer ‘live,’ ” 1.e., when the “parties lack a legally cognizable interest in the outcome.” Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 23 L.Ed.2d 9 491 (1969). I[n] these habeas proceedings the relief sought, i.e., petitioner’s immediate release from custody, is unique to the petitioner himself and cannot be 10 transferred. “In other words, the claims [are] extinguished upon [a] petitioner’s death and no party can be substituted for him.” Pennewell v. Carey, No. 2:06- 11 cv0598 JKS EFB, 2008 WL 1860166, at *1 (E.D. Cal. Apr.23, 2008) (citing Fed. R. Civ. P. 25(a)). “Because petitioner’s death renders this case moot, the petition 12 for writ of habeas corpus should be dismissed as moot.” Garceau_v. Woodford, 399 F.3d 1101 (9th Cir.2005). See also Dove v. United States, 423 U.S. 325, 96 13 S.Ct. 579, 46 L.Ed.2d 531 (1976) (dismissing a certiorari petition because petitioner had died); Griffey v. Lindsey, 349 F.3d 1157 (9th Cir.2003) (dismissing 14 a petition for writ of habeas corpus as moot because petitioner had died). 15 | Germino v. Marshall, No. CIV S-08-3010, 2010 WL 5393907, at *1 (E.D. Cal. Dec. 21, 2010). 16 Accordingly, it is hereby recommended that the motion to dismiss the petition be granted 17 | and that this action be dismissed as having been rendered moot by Petitioner’s death. These 18 | Findings and Recommendation will be submitted to the United States District Judge assigned to 19 | the case, pursuant to the provisions of 28 U.S.C. § 636(b)(). Within fourteen (14) days after the 20 | filed date of these Findings and Recommendation, Respondent may file written objections with 21 | the Court. The document should be captioned “Objections to Magistrate Judge’s Findings and 22 | Recommendation.” Any failure to file objections within the specified time may result in the 23 | waiver of rights on appeal. Wilkerson v. Wheeler, 772 F.3d 834, 838-39 (9th Cir. 2014), citing 24 | Baxter v. Sullivan, 923 F.2d 1391, 1394 (9th Cir. 1991), 25 26 IT IS SO ORDERED. TA. ee 27 | Dated: _ September 1, 2020 UNITED STATES MAGISTRATE JUDGE 28