Bennett v. United States, 16-2039.
Decision Date | 05 September 2017 |
Docket Number | No. 16-2039.,16-2039. |
Parties | George H. BENNETT, Petitioner, Appellee, v. UNITED STATES of America, Respondent, Appellant. |
Court | U.S. Court of Appeals — First Circuit |
Margaret D. McGaughey, Assistant United States Attorney, with whom Thomas E. Delahanty II, United States Attorney, was on brief, for appellant.
James S. Nixon, Assistant Federal Defender, with whom Federal Defender Office—Bangor Branch was on brief, for appellee.
Before Barron, Circuit Judge, Souter, Associate Justice,* and Selya, Circuit Judge.
On July 5, 2017, this court's opinion issued affirming the district court's decision granting petitioner George H. Bennett's motion pursuant to 28 U.S.C. § 2255. See Bennett v. United States, 868 F.3d 1, 2017 WL 2857620 (2017). On July 11, 2017, respondent-appellant filed a "Notice of Death," informing this court that Bennett had died on June 30, 2017, before the opinion issued. Respondent-appellant filed a motion for the withdrawal of the July 5, 2017 opinion. Counsel for petitioner-appellee filed an opposition to the motion.
We assume, without deciding, that we had jurisdiction at the time that the opinion issued and that we are not required, because of the post-decision notice of Bennett's death, to withdraw the opinion and vacate the judgment as moot. Compare Robinson v. California, 371 U.S. 905, 83 S.Ct. 202, 9 L.Ed.2d 166 (1962) ( ) and 13B Charles Alan Wright, et al., Federal Practice and Procedure§ 3533.1 (3d ed.) (), with United States v. Juvenile Male, 564 U.S. 932, 131 S.Ct. 2860, 180 L.Ed.2d 811 (2011) (per curiam)(vacating judgment of Ninth Circuit on grounds that appeal had been rendered moot by events that occurred more than a year before decision issued, but were unknown to the court at time of issuance); see also Independent Living Center of Southern California, Inc. v. Maxwell-Jolly, 590 F.3d 725, 728 (9th Cir. 2009) ( ); but see In re Pattullo, 271 F.3d 898, 902 (9th Cir. 2001) ( ); Commodity Futures Trading Comm'n v. Board of Trade of City of Chicago, 701 F.2d 653, 658 (7th Cir. 1983) ( ).
We choose, however, to exercise our discretion to grant the respondent-appellant's motion for withdrawal of our July 5, 2017 opinion because the case is now moot. Counsel for petitioner-appellee has failed to identify any collateral consequences that continue to flow from the sentence enhancement challenged by petitioner. In light of petitioner's death, the opinion of July 5, 2017 is withdrawn, and the judgment of the same date is vacated as moot. The case is remanded to the district court with instructions to dismiss the habeas petition as moot. See Medina v. Chappell, 782 F.3d 1115 (9th...
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