                                                                           FILED
                              NOT FOR PUBLICATION                           AUG 02 2011

                                                                        MOLLY C. DWYER, CLERK
                     UNITED STATES COURT OF APPEALS                      U .S. C O U R T OF APPE ALS




                              FOR THE NINTH CIRCUIT



BRADFORD G. BURBINE,                             No. 09-17329

               Petitioner - Appellant,           D.C. No. 2:04-cv-01691-LKK-
                                                 EFB
  v.

A.K. SCRIBNER,                                   MEMORANDUM *

               Respondent - Appellee.



                    Appeal from the United States District Court
                       for the Eastern District of California
                   Lawrence K. Karlton, District Judge, Presiding

                           Argued and Submitted May 13, 2011
                                San Francisco, California

       Before: B. FLETCHER and THOMAS, Circuit Judges, and ROSENTHAL,

       District Judge.**




        *
             This disposition is not appropriate for publication and is not precedent
except as provided by 9th Cir. R. 36-3.

        **
            The Honorable Lee H. Rosenthal, District Judge for the U.S. District
Court for Southern Texas, Houston, sitting by designation.
      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

Burbine 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 (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 (1976) (per curiam)

(dismissing, without abatement, a certiorari petition from an appellate decision in

the criminal proceedings after the defendant’s death and explicitly overruling

Durham to the extent the cases conflict); Krantz v. United States, 224 F.3d 125,

126–27 (2d Cir. 2000) (per curiam) (refusing to abate the criminal proceedings

when the petitioner died after the filing of a notice of appeal from the denial of his

§ 2255 motion, but before a certificate of appealability was granted). Burbine’s


                                           2
death during this appeal from the denial of his § 2254 motion requires dismissing

the appeal as moot, but does not require abating the prosecution “from its

inception.”

      DISMISSED AS MOOT.




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