GEORGE H. BENNETT, Petitioner, Appellee,
UNITED STATES OF AMERICA, Respondent, Appellant.
FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF
MAINE [Hon. George Z. Singal, U.S. District Judge]
Margaret D. McGaughey, Assistant United States Attorney, with
whom Thomas E. Delahanty II, United States Attorney, was on
brief, for appellant.
S. Nixon, Assistant Federal Defender, with whom Federal
Defender Office -- Bangor Branch was on brief, for appellee.
Barron, Circuit Judge, Souter, Associate Justice, [*] and Selya, Circuit
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, ___ F.3d ___, 2017 WL
2857620. 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.
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 (1962)
(denying, without opinion, motion to abate Court's
judgment overturning appellant-defendant's state court
conviction where the judgment had issued after
appellant's death but before notice to the Court of
appellant's death (with three justices dissenting)) and
13B Charles Alan Wright, et al., Federal Practice and
Procedure § 3533.1 (3d ed.)("If a case
actually is decided before the court learns of an event that
mooted the dispute before decision, it is possible to vacate
the decision, but this course is not uniformly
followed."), with United States v. Juvenile
Male, 564 U.S. 932 (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)(stating, in dicta, that, even where
mooting event occurred before decision issued, but request to
dismiss case for mootness was filed after decision issued,
"dismissing an appeal after rendering our decision is an
exercise within our discretion"); but see In re
Pattullo, 271 F.3d 898, 902 (9th Cir. 2001)(stating
that, where court learned of mooting event before mandate
issued, "[w]e lack jurisdiction over this case and must
accordingly vacate our memorandum disposition and dismiss
this appeal"); Commodity Futures Trading Comm'n
v. Board of Trade of City of Chicago, 701 F.2d 653, 658
(7th Cir. 1983)(stating that "since mootness is
jurisdictional, " appeals court was "required"
to consider whether suit was moot at the time that appeal
court decision issued).
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 Cir. 2015); Griffey v. Lindsey, 349 F.3d
1157 (9th Cir. 2003); Gornto v. MacDougall, 482 F.2d
361 (5th Cir. 1973).
that, while the motion for withdrawal of the opinion has been
pending, another panel of this court "endorse[d] and
adopt[ed]" the "reasoning" of the July 5, 2017
Bennett opinion as its own. See United States v.
Windley, 864 F.3d 36, 37 n.2 (1st Cir. 2017). Although
that Bennett opinion is withdrawn as moot, it will
remain accessible, for the benefit of those who desire to
learn in detail the "reasoning" that the
Windley decision chose to "endorse and
Hon. David H. Souter, Associate Justice (Ret.) of the Supreme
Court of the United States, sitting ...