December 11, 2013
Angel Alomar, Petitioner,
William Lee, Superintendent Green Haven Correctional Facility, Respondent.
The Honorable Nelson S. Román
Angel Alomar 06-A-2839 Upstate Correctional Facility 309 Bere Hill Road Malone, NY.
Andrew R. Kass, Esq. Orange County District Attorney's Office, Local Criminal Court Unit 18 Seward Avenue Middletown, NY.
REPORT AND RECOMMENDATION
LISA MARGARET SMITH, District Judge.
On October 7, 2009, Pro se Petitioner Angel Alomar filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his conviction on one count of criminal possession of a weapon in the second degree, two counts of criminal possession of a weapon in the third degree, and one count of reckless endangerment in the first degree. Docket # 1 ("Petition"). On April 20, 2010, the Court granted Petitioner's request for a stay of his habeas proceeding so that he could exhaust an ineffective assistance of counsel claim raised in a pending § 440.10 motion. Docket # 18. By letter dated November 25, 2013, a copy of which is attached hereto, Respondent informed the Court that Petitioner died while incarcerated on September 17, 2013. A copy of records from the New York State Department of Corrections and Community Supervision appended to Respondent's letter confirms the death. In light of Petitioner's death, Respondent moves to lift the stay and dismiss the Petition as moot.
This Court agrees that the Petition has been rendered moot by Petitioner's death. See, e.g., Zaker v. Artus, No. 04-CV-886A, 2007 WL 1521621 (W.D.N.Y. May 22, 2007) ("Because petitioner's death means that there is no relief that this Court can grant to him, his petition for a writ of habeas corpus has been rendered moot.") (citations omitted). Accordingly, I conclude, and respectfully recommend that Your Honor should conclude, that Respondent's motion should be granted, and the Petition should be dismissed.
For the foregoing reasons, I conclude, and respectfully recommend that Your Honor should conclude, that the instant Petition should be dismissed as moot based on Petitioner's death.
Pursuant to 28 U.S.C. § 636(b)(1), as amended, and Fed.R.Civ.P. 72(b), the parties shall have fourteen (14) days, plus an additional three (3) days, pursuant to Fed.R.Civ.P. 6(d), or a total of seventeen (17) days, see Fed.R.Civ.P. 6(a), from the date hereof, to file written objections to this Report and Recommendation. Such objections, if any, shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Nelson S. Román, at the United States District Court, Southern District of New York, United States Courthouse, 300 Quarropas Street, White Plains, New York, 10601, and to the chambers of the undersigned at the same address.
Failure to file timely objections to this Report and Recommendation will preclude later appellate review of any order of judgment that will be entered.
Requests for extensions of time to file objections must be made to Judge Román.