United States District Court, D. Arizona
February 6, 2014
Roberto Carrasco Gamez, Jr., Petitioner,
Charles L. Ryan, et al., Respondents.
REPORT AND RECOMMENDATION
JACQUELINE M. RATEAU, Magistrate Judge.
Petitioner Roberto Carrasco Gamez, Jr., filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254. Now pending before the Court are Gamez's Motion for Stay and Abeyance (Doc. 18) and Motion to Expedite Ruling on Stay and Abeyance (Doc. 34). Because the motions are moot, the Magistrate Judge recommends that they be denied.
A federal court may not decide a moot question. Thus, when a court cannot provide any effectual relief in favor of the petitioner due to intervening events, the request for relief should be dismissed as moot. Calderon v. Moore, 518 U.S. 149, 150 (1996).
Petitioner appears to have succeeded in exhausting his state court remedies as to all the claims he seeks to raise. On December 3, 2013, Gamez notified the Court that the Arizona Court of Appeals had ruled on his previously unexhausted claims (Doc. 37). Thus, there is no longer any basis for a stay request and Gamez's request for a stay is moot. For the same reasons, Gamez's request for an expedited ruling on his stay request is also moot.
Based on the foregoing, the Magistrate Judge RECOMMENDS that the District Court, after its independent review, deny as moot Gamez's Motion for Stay and Abeyance (Doc. 18) and Motion to Expedite Ruling on Stay and Abeyance (Doc. 34).
The Magistrate Judge also recommends that the District Court, should it find Gamez's Motion for Stay and Abeyance Moot, order Respondents to answer the petition.
This Recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the District Court's judgment.
However, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the District Court. See 28 U.S.C. § 636(b)(1) and Rules 72(b), 6(a) and 6(e) of the Federal Rules of Civil Procedure. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Replies are not permitted without leave of court. If any objections are filed, this action should be designated case number: CV 12-0639-TUC-JGZ. Failure to timely file objections to any factual or legal determination of the Magistrate Judge may be considered a waiver of a party's right to de novo consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir.2003)( en banc ).