Clarine v. Thomas, No. 3:2008cv00890 - Document 29 (D. Or. 2009)
Court Description: OPINION AND ORDER: Respondent's motion to dismiss # 20 is GRANTED, and petitioner's petition for writ of habeas corpus # 1 is DENIED and this proceeding is DISMISSED with prejudice. IT IS SO ORDERED. Signed on July 31, 2009 by Judge Malcolm F. Marsh. (kt)
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IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF OREGON GEOFFREY ALLEN CLARINE, Petitioner, CV. 08-890-MA OPINION AND ORDER v. J.E. THOMAS, Warden, FCI Sheridan, Respondent. STEPHEN SADY Chief Deputy Federal Defender 101 S.W. Main Street, Suite 1700 Portland, OR 97204 Attorney for Petitioner KENT S. ROBINSON Acting United States Attorney District of Oregon SUZANNE A. BRATIS Assistant United States Attorney United States Attorney's Office 1000 S.W. Third Avenue, Suite 600 Portland, Oregon 97204 Attorneys for Respondent MARSH, Judge Respondent J.E. Thomas moves the court to dismiss the petition for writ of habeas corpus filed by petitioner under 28 U.S.C. 1 - OPINION AND ORDER § 2241. Peti tioner inmates who filed challenging the inmate Geoffrey Allen petitions Bureau of placement in Clarine seeking Prisons' residential is habeas one of several corpus relief (BOP's) policies concerning reentry centers (RRCs).l Respondent contends that because petitioner has been transferred to an RRC, there is no additional relief available and his case is now moot. For the reasons that follow, respondent's motion to dismiss is GRANTED, petitioner's petition for writ of habeas corpus is DENIED and this proceeding is DISMISSED. BACKGROUND Petitioner was sentenced on April 10, 2003 to a 96-month term of imprisonment, Use/Brandishing followed by five a Firearm Trafficking Crime. During years and supervised release in Relation to a for Drug Peti tioner has a proj ected release date of August 30, 2009, via good time credits. Petitioner filed a petition for writ of habeas corpus on July 25, 2008. His petition challenges the BOP's refusal to consider lThe sixteen other related cases before me include: Sass v. Thomas, 08-300-MAi Calloway v. Thomas, 08-544-MAi Pierce v. Thomas, 08-705i Laney v. Thomas, 08-583-MAi Stone v. Thomas, 08496-MAi Murray v. Thomas, 08-527-MAi Sherman v. Thomas, 08-438MAi Sonobe v. Thomas, 08-560-MAi Beaman v. Thomas, 08-492-MAi Sacora v. Thomas, 08-578-MAi Fuentes v. Thomas, 08-830-MAi Moore v. Thomas, 08-810-MAi Whitfield v. Thomas, 08-310-MAi Limani v. Thomas, 08-270-MAi Close v. Thomas, 08-261-MA, and Badger v. Thomas, 08-1324-MA. See also McGee v. Thomas, 09-455-MA (decided July 23, 2009) (McGee Docket Entry #14) (not represented by the Federal Public Defender) . 2 - OPINION AND ORDER placing him in an RRC for twelve months and sought immediate consideration for a longer placement in an RRC. On March 4, 2009, petitioner was transferred to an RRC. On April 16, 2009, respondent filed the current motion to dismiss. DISCUSSION Article federal I II courts Const. art. of to the United deciding III; Allen v. States Constitution limits "cases" and "controversies." Wright, 468 U.S. Mootness is a threshold jurisdictional issue. 737, 750 the U.S. (1984). Burnett v. Lampert, 432 F.3d 996,999 (9 th Cir. 2005); Qureshi v. Sanders, 563 F.Supp.2d 1154, 1156 (C.D. Cal. 2008). "This means that, throughout the litigation, the [petitioner] must have suffered, or be threatened with an actual injury traceable to the [respondent] and likely to be redressed by a favorable judicial decision." Spencer v. Kemna, 523 U.S. 1, 7 (1998) (internal quotations omitted). Thus, if events transpire during the litigation that render the court unable to grant the requested relief, the case becomes moot, and the court is without jurisdiction to hear the case. Calderon v. Moore, 518 U.S. 149, 150 (1996). Petitioner was transferred to an RRC on March 4, 2009, and petitioner is scheduled to be released from custody on August 30, 2009. Accordingly, moot because there provide. petitioner's claims under § 3624(c) is no effective relief that this are now court can Calderon, 518 U.S. at 150; Miller v. Whitehead, 527 F.3d 3 - OPINION AND ORDER 752, 757 (8th Cir. 2008) (determining that claims by inmates who had been transferred to an RRC subsequent to filing appeal were moot because the relief they sought had been granted); Qureshi, F. Supp. 2d at 1157 (claim by inmate 563 seeking RRC placement moot because released from custody); Rumbaugh v. Dewalt, 2009 WL 704285 (E.D. Ky. March 16, 2009) (same). See also Tanner v. Deboo, 2009 WL 1026027 (E.D. Cal. Apr. 15, 2009), adopted in full, 2009 WL 1459040 (May 26, 2009) (inmate's case moot where he received all the relief court could grant-RRC consideration under In so holding, I §§ 3621(b) and 3624(c)). recognize that the Ninth Circuit has held repeatedly that an inmate's placement on supervised release during the pendency of litigation does not necessarily moot an action. Gunderson v. Hood, 268 F.3d 1149, 1153 (9th Cir. 2001) (challenging denial of admission into early release drug and alcohol program); Mujahid v. Daniels, 413 F.3d 991, 994-96 (9th Cir. 2005), cert. denied, 547 U.S. 1149 (2006) (challenging denial of good time credits); Serrato v. Clark, 486 F.3d 560, 565 (9 th Cir. 2007) (challenging termination of boot camp program that reduced sentences up to six months) . For example, calculation of in Muj ahid, good time the credits inmate challenged the and was placed on supervised release during the pendency of his litigation. BOP's Although the Ninth Circuit recognized that it could not grant relief in the form of a reduction in the term of his sentence or supervised release, 4 - OPINION AND ORDER it held that the case was not moot because the "possibility" of relief remained available in the form of a reduction in Mujahid's term of supervised relief in a separate action before the sentencing court unde r 18 U. S . C. 3583 (e) (2) § However, case the reasoning in Mujahid is not applicable to this because petitioner incarceration, nor has is not he challenging suffered the length of his "over-incarceration. u Consequently, I find the reasoned analysis of Demis v. Sniezek, 558 F.3d 508 (6 th Cir. 2009) persuasive. In Demis, the petitioner inmate sought habeas relief due to the BOP's refusal to consider his transfer to an RRC. While his case was pending at the district court, he was transferred to an RRC. While his case was on appeal, the petitioner was released from custody. Demis, 558 F.3d at 511. The Demis court concluded that because no actual injury remained for the court to redress, dismissed his appeal. it was unable to grant any relief and In so doing, it distinguished Mujahid: While shortening the term of supervised release may well be appropriate for a petitioner who challenges the length of his sentence, such relief does not address the particular injuries Demis complains of here. Indeed, now that he is no longer incarcerated or in a CCC, shortening the period of his supervised release will not restore Demis' alleged foregone" opportuni ties to transition into the community." Id. at 515 (internal citations and quotations omitted). Peti tioner' s contention that his case is not moot because there is a "possibility" for a shortened supervised release term is 5 - OPINION AND ORDER unconvincing. Petitioner argues that he has been in custody longer than necessary, in that he received community placement for only five and a half months instead of twelve. However, petitioner's position misses the critical distinction between pre-release RRC time and an actual sentence reduction. observed, supervised purposes. Because United release States and v. As the Supreme Court has incarceration Johnson, 529 U.S. serve 53, an RRC constitutes peti tioner' s time in community confinement does not incarceration, length of petitioner's incarceration whatsoever. the 59 distinct (2000). length of impact the See Rodriguez v. Smith, 541 F.3d 1180, 1185 n.5 (9 th Cir. 2008) (noting that the BOP recognizes RRCs as available facilities for confinement) Indeed, petitioner will be released in accordance with the sentencing court's U.S.C. infer § a 3624(c) sentence recommendation. Nothing in language of 18 regarding RRC placements can be interpreted to reduction. Compare 18 U.S.C. § 3621(e) (2) (B) (providing a sentence reduction by up to one year for successful completion of a residential substance abuse treatment program). Thus, in the absence of an "over-incarceration" as was present in Muajhid, Gunderson, and Serrato, and because supervised release is not a proper remedy here, petitioner's claims are moot. 6 - OPINION AND ORDER the reduction in I conclude that Petitioner has not alleged any ongoing collateral consequences that have resulted from the challenged BOP policies, nor does the court discern any. Demis, 558 F.3d at 516. There is an exception to mootness, repetition, apply, yet evading review" exception. petitioner challenged known as the "capable of action must was demonstrate in its two duration For this doctrine to elements: too short '" to (1) be the fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subj ected to the same action again.'" 478, 482 Murphy v. Hunt, 455 U.S. (1982), quoting Weinstein v. Bradford, 423 U.S. 147, 149 (1975) (emphasis added); Cox v. McCarthy, 829 F.2d 800,803 (9 th Cir. 1987). Accord mootness is Burnett, inapplicable 432 here F.3d at because 999. it This does not exception appear to that petitioner is likely to be subject to the BOP's RRC policies again. Demis, 558 F.3d at 516; Qureshi, 563 F.Supp.2d at 1157. Courts have been reluctant to find a reasonable probability of repetition where the action will be repeated based on the petitioner's own wrongdoing. Reimers v. State of Oregon, 863 F.2d 630, 632 (9 th Cir. 1988); Cox, 829 F.2d at 804 n.3; Hirakawa v. Thomas, 2009 WL 564701 (D. Hawaii, March 5, 2009). III III III 7 - OPINION AND ORDER CONCLUSION Based on the foregoing, is GRANTED, respondent's motion to dismiss (#20) and petitioner's petition for writ of habeas corpus (#1) is DENIED and this proceeding is DISMISSED with prejudice. IT IS SO ORDERED. DATED this .3 I day of July, 2009. Malcolm F. Marsh United States District Judge 8 - OPINION AND ORDER
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