Bradford Burbine v. A. Scribner

MEMORANDUM

Bradford G. Burbine appealed the district court’s judgment dismissing his 28 U.S.C. § 2254 habeas petition. Burbine’s counsel has notified this court that Bur-bine died on May 12, 2011. We must dismiss an appeal as moot if we lack power to grant relief. See Picrin-Peron v. Rison, 930 F.2d 773, 775 (9th Cir.1991). Burbine’s counsel, citing United States v. Oberlin, 718 F.2d 894 (9th Cir.1983), argues that her client’s death requires abating not only this appeal but also the underlying state-court criminal proceedings, including the conviction. The Oberlin court observed that “[d]eath pending appeal of a criminal conviction abates not only the appeal but all proceedings in the prosecution from its inception.” Id. at 895 (citing Durham v. United States, 401 U.S. 481, 483 , 91 S.Ct. 858 , 28 L.Ed.2d 200 (1971) (per curiam)) (emphasis added). But abatement does not apply once a convicted defendant has exhausted the appeals available as a matter of right in the underlying criminal case. See Dove v. United States, 423 U.S. 325, 325 , 96 S.Ct. 579 , 46 L.Ed.2d 531 (1976) (per curiam) (dismissing, without abatement, a certiora-ri petition from an appellate decision in the…