(HC) Hardney v. Lynch

UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF CALIFORNIA 8 JOHN HARDNEY, Case No. 2:23-cv-00462-WBS-JDP (HC) Petitioner, FINDINGS AND RECOMMENDATIONS

THAT RESPONDENT’S MOTION TO

v. DISMISS BE GRANTED LYNCH, ECF No. 17 Respondent. 14 Petitioner John Hardney, a state prisoner, filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254. Respondent has moved to dismiss it because he is no longer in custody pursuant to the conviction he is challenging. ECF No. 17. I agree and recommend dismissal on that basis. No habeas rule specifically applies to motions to dismiss. See Hillery v. Pulley, 533 F. Supp. 1189, 1194 (E.D. Cal. 1982) (“Motion practice in habeas corpus is not specifically provided for in the rules but must be inferred from their structure and the Advisory Committee Notes.”). The Ninth Circuit construes a motion to dismiss a habeas petition as a request for the court to dismiss under Rule 4 of the Rules Governing § 2254…