Opinion
No. 12-15271
02-02-2015
BRIAN KERRY O'KEEFE, Petitioner - Appellant, v. DOUG GILLESPIE, Sheriff; et al., Respondents - Appellees.
NOT FOR PUBLICATION
D.C. No. 2:11-cv-02109-GMN-VCF MEMORANDUM Appeal from the United States District Court for the District of Nevada
Gloria M. Navarro, Chief District Judge, Presiding
Argued and Submitted November 20, 2014 San Francisco, California Before: THOMAS, Chief Judge, and REINHARDT and CHRISTEN, Circuit Judges.
This disposition is not appropriate for publication and is not precedent except as provided by 9th Cir. R. 36-3.
Brian Kerry O'Keefe appeals the district court's dismissal of his petition for a writ of habeas corpus due to lack of exhaustion. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253(a). Because the parties are familiar with the history of this case, we need not recount it here.
O'Keefe filed his petition under 28 U.S.C. § 2241, seeking to prevent an upcoming retrial on grounds that it would violate his right against double jeopardy. However, in the intervening time between his filing of the petition and our consideration of it, O'Keefe was retried and convicted in state court. His sought relief is therefore no longer available. Therefore, the appeal is moot.
We need not, and do not, address the government's arguments that O'Keefe's appeal is moot because he filed his petition under 28 U.S.C. § 2241 rather than § 2254. Nor need we address the merits of O'Keefe's double jeopardy claims. Our decision is without prejudice to the consideration of those claims in a properly filed § 2254 petition.
O'Keefe's pro se motions for judicial notice and for summary judgment are denied. Because O'Keefe is represented by counsel, we decline to entertain O'Keefe's other pro se motions and submissions.
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AFFIRMED.