(HC) Vivanco-Zambrano v. Warden

Opinion

FERNANDO VIVANCO-ZAMBRANO, No. 1:23-cv-01328 JLT SKO (HC) Petitioner, ORDER ADOPTING FINDINGS AND RECOMMENDATIONS, GRANTING v. RESPONDENT’S MOTION TO DISMISS, DISMISSING PETITION FOR WRIT OF HABEAS CORPUS, AND DIRECTING WARDEN, FCI-MENDOTA, CLERK OF COURT TO ENTER JUDGMENT Respondent. (Docs. 10, 13)

Fernando Vivanco-Zambrano is a federal prisoner proceeding pro se and in forma pauperis with a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. Respondent moved to dismiss the petition. (Doc. 10.) The assigned magistrate judge found the underlying petition was moot, because evidence provided by Respondent demonstrated Petitioner received the requested relief and was released from custody on November 17, 2023. (Doc. 13 at 2.) Therefore, the magistrate judge recommended the motion to dismiss be granted. (Id. at 3.) The Court served the Findings and Recommendations at the only address on record for Petitioner—at FCI Mendota—and the document was returned as “Undeliverable, No Longer at this Address,” consistent with his release from custody. Despite the mail return, the Court finds service shall be deemed fully effective pursuant to Local Rule 182(f). According to 28 U.S.C. § 636(b)(1)(C), this Court performed a de novo review of this case. Having carefully reviewed the matter, the Court concludes the Findings and Recommendations are supported by the record and proper analysis. In the event a notice of appeal is filed, a certificate of appealability will not be required because this is an order denying a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241, nota final order in a habeas proceeding in which the detention complained of arises out of process issued by a state court. Forde v. U.S. Parole Commission, 114 F.3d 878 (9th Cir. 1997); see Ojo v. INS, 106 F.3d 680, 681-682 (Sth Cir. 1997); Bradshaw v. Story, 86 F.3d 164, 166 (10th Cir. 1996). Thus, the Court ORDERS: 1. The Findings and Recommendations issued on January 5, 2024 (Doc. 13) are ADOPTED in full. 2. Respondent’s motion to dismiss (Doc. 10) is GRANTED. 3. The petition for writ of habeas corpus is DISMISSED with prejudice. 4. The Clerk of Court is directed to enter judgment and close the case. 5. In the event a notice of appeal is filed, no certificate of appealability is required. Dated: _February 9, 2024 Charis [Tourn TED STATES DISTRICT JUDGE