John Valerio v. Scott Frauenheim

Opinion

1 2 3 4 5 6 7 UNITED STATES DISTRICT COURT 8 CENTRAL DISTRICT OF CALIFORNIA 9 10 11 JOHN VALERIO, Case No. 2:17-cv-07706-MAA 12 Petitioner, MEMORANDUM DECISION 13 AND ORDER DISMISSING AS 14 v. MOOT PETITION FOR WRIT OF HABEAS CORPUS 15 SCOTT FRAUENHEIM, Warden, 16 Respondent. 17 18 19 I. INTRODUCTION AND BACKGROUND 20 On October 20, 2017, Petitioner John Valerio (“Petitioner”) filed a counseled 21 Petition for Writ of Habeas Corpus by a Person in State Custody pursuant to 28 22 U.S.C. § 2254. (“Petition,” ECF No. 1.) The Petition challenges a 2014 judgment 23 of conviction Petitioner sustained in the Los Angeles County Superior Court. 24 (“Petition MP&A,” ECF No. 1-2, at 9-10.)1 On November 25, 2019, this Court 25 entered an Order denying the Petition on the merits. (ECF No. 44.) The same day, 26 the Court entered judgment denying the Petition with prejudice. (ECF No. 45.) 27 1 Pinpoint citations of documents in this Order refer to the page numbers appearing 28 1 On March 26, 2021, the United States Court of Appeals for the Ninth Circuit 2 granted a certificate of appealability and set a briefing schedule for Petitioner’s 3 appeal. (See ECF No. 49.) Order, Valerio v. Frauenheim, No. 19-56480, ECF No. 4 2 (9th Cir. Mar. 26, 2021). On October 1, 2021, Petitioner’s counsel filed a notice 5 informing the Ninth Circuit and Respondent’s counsel of Petitioner’s death. 6 Notice, Valerio v. Frauenheim, No. 19-56480, ECF No. 15 (9th Cir. Oct. 1, 2021). 7 On November 12, 2021, the Ninth Circuit issued an order dismissing the appeal as 8 moot in light of Petitioner’s death and remanding the action to this Court “for 9 further proceedings as may be required, including dismissal of the petition as 10 moot.” (ECF No. 51.) Order, Valerio v. Frauenheim, No. 19-56480, ECF No. 16 11 (9th Cir. Nov. 12, 2021). 12 On November 30, 2021, the Court issued an Order to Show Cause (“OSC”) 13 why the Petition should not be dismissed as moot in light of Petitioner’s death. 14 (Nov. 30, 2021 OSC, ECF No. 52.) In response to the OSC, on December 8, 2021, 15 Petitioner’s counsel and Respondent filed a Joint Stipulation requesting that the 16 case be dismissed. (Jt. Stip., ECF No. 54.) 17 18 II. DISCUSSION 19 In accordance with the Ninth Circuit’s remand instructions and at the request 20 of the parties, it is hereby ORDERED that the Petition is DISMISSED as moot 21 due to Petitioner’s death. See Griffey v. Lindsey, 349 F.3d 1157 (9th Cir. 2003) 22 (petition for writ of habeas corpus dismissed as moot after petitioner’s death); see 23 also McMann v. Ross, 396 U.S. 118 (1969) (per curiam) (same). 24 /// 25 /// 26 /// 27 /// 28 /// 1 III. CONCLUSION 2 IT THEREFORE IS ORDERED that the Petition is DISMISSED. 3 4 DATED: December 9, 2021 5 6 MARIA A. AUDERO 7 UNITED STATES MAGISTRATE JUDGE 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28