Guereca v. Benov

Filing 16

ORDER DISMISSING PETITION for Writ of Habeas Corpus AS MOOT signed by Magistrate Judge Michael J. Seng on 1/2/2014. CASE CLOSED. Certificate of Appealability not required. (Jessen, A)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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1:12-cv-01910 MJS HC
JUAN FRANCISCO ORTIZ
GUERECA,

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ORDER DISMISSING PETITION FOR WRIT
OF HABEAS CORPUS AS MOOT
Petitioner,

v.

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MICHAEL L. BENOV,
Respondent.

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Petitioner is a federal prisoner proceeding pro se with a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2241.
On November 26, 2012, Petitioner filed the instant petition for writ of habeas
corpus challenging the calculation of his release date. On August 30, 2013, the Court
ordered Respondent to show cause why the petition should not be granted. In response,
Respondent explained that Petitioner had been released from prison to immigration
authorities on May 12, 2013, and was no longer in the custody of the Bureau of Prisons.
Accordingly, on November 22, 2013, the Court issued an order to show cause
why the petition should not be dismissed as moot. (Order, ECF No. 15.) Petitioner did
not respond to the order to show cause, and on December 13, 2013, the order was
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returned to the Court as undeliverable because Petitioner was no longer housed at the

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correctional institution.

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I.

DISCUSSION

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The case or controversy requirement of Article III of the Federal Constitution

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deprives the Court of jurisdiction to hear moot cases. Iron Arrow Honor Soc'y v. Heckler,

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464 U.S. 67, 70 (1983); NAACP., Western Region v. City of Richmond, 743 F.2d 1346,

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1352 (9th Cir. 1984). A case becomes moot if the "the issues presented are no longer

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'live' or the parties lack a legally cognizable interest in the outcome." Murphy v. Hunt,

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455 U.S. 478, 481 (1984). The Federal Court is "without power to decide questions that

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cannot affect the rights of the litigants before them." North Carolina v. Rice, 404 U.S.

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244, 246 (1971).

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A petition for writ of habeas corpus becomes moot when it no longer presents a

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case or controversy under Article III, § 2 of the Constitution. Wilson v. Terhune, 319 F.3d

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477, 479 (9th Cir. 2003). A petition for writ of habeas corpus is moot where a petitioner’s

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claim for relief cannot be redressed by a favorable decision of the court issuing a writ of

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habeas corpus. Burnett v. Lampert, 432 F.3d 996, 1000-01 (9th Cir. 2005) (quoting

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Spencer v. Kemna, 523 U.S. 1, 7 (1998)). Mootness is jurisdictional. See Cole v. Oroville

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Union High School District, 228 F.3d 1092, 1098-99 (9th Cir. 2000). Thus, a moot

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petition must be dismissed because nothing remains before the Court to be remedied.

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Spencer, 523 U.S. at 18.

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A case becomes moot because of the absence of an actual case or controversy

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where the petitioner no longer suffers or anticipates an injury traceable to the respondent

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which is likely to be redressed by a judicial decision. Spencer, 523 U.S. at 11. Although a

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habeas claim for credit on a sentence may be mooted by the petitioner’s release, it is

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also possible that the claim remains viable. For example, a habeas challenge to a term

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of imprisonment is not mooted by a petitioner’s release where the petitioner remains on

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supervised release and there is a possibility that the petitioner could receive a reduction

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in his term of supervised release. Reynolds v. Thomas, 603 F.3d 1144, 1148 (9th Cir.
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2010). In Reynolds, it was held that a proceeding pursuant to 28 U.S.C. § 2241

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challenging a decision of the BOP denying the petitioner’s request for credit towards his

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federal sentence for days spent in state custody was not moot where the petitioner was

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released and remained on supervised release, and the BOP’s internal, favorable

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decision did not recalculate the petitioner’s release date as the petitioner had requested.

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Here, the Court ordered to show cause why the petition should not be dismissed

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as moot. Petitioner has been released from custody, and did not respond to the order to

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show cause to describe any collateral consequences that may exist from his custody.

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Accordingly, the Court dismisses the petition for writ of habeas corpus as moot.

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II.

CERTIFICATE OF APPEALABILITY

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"The plain language of [28 U.S.C.] § 2253(c)(1) does not require a petitioner to

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obtain a [certificate of appealability] in order to appeal the denial of a § 2241 petition."

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Harrison v. Ollison, 519 F.3d 952, 958 (9th Cir. 2008). "Nor is there any other statutory

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basis for imposing a [certificate of appealability] requirement on legitimate § 2241

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petitions. Although state prisoners proceeding under § 2241 must obtain a [certificate of

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appealability], see § 2253(c)(1)(A), there is no parallel requirement for federal prisoners."

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Id.

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Accordingly, because Petitioner is a federal prisoner bringing a legitimate § 2241

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petition, a certificate of appealability is not required.

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III.

ORDER

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Accordingly, IT IS HEREBY ORDERED that:

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The Petition for Writ of Habeas Corpus is DISMISSED as MOOT; and

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The Clerk of Court is ORDERED to enter judgment and close the case.

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IT IS SO ORDERED.

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Dated:

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January 2, 2014

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE
DEAC_Signature-END:

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