Tun v. Zuniga

Filing 22

ORDER Regarding Respondent's Motion to Dismiss 21 , signed by Magistrate Judge Michael J. Seng on 04/07/15. CASE CLOSED. (Gonzalez, R)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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Case No. 1:14-cv-01810 MJS (HC)
KHINE NYAN TUN,

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ORDER REGARDING RESPONDENT’S
Petitioner, MOTION TO DISMISS

v.

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[Doc. 21]
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RAFAEL ZUNIGA,
Respondent.

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Petitioner is a federal prisoner proceeding pro se and in forma pauperis with a

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petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241. The parties have

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consented to Magistrate Judge jurisdiction under 28 U.S.C. § 636(c). (ECF Nos. 4, 8.)

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Pending before the Court is Respondent's February 26, 2015 motion to dismiss the

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petition as moot. (ECF No. 21.) Petitioner did not file a response to the motion.

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I.

BACKGROUND

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Petitioner, a federal inmate, was formerly housed at Taft Correctional Institution

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("TCI"). He challenges the disallowance of twenty-seven (27) days of good conduct time

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credit that he suffered as a result of a prison disciplinary finding made at TCI on or about

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April 19, 2013. Petitioner was engaged in prohibited conduct, namely fighting with other

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inmates. (Pet., Ex. 2.) Petitioner challenges the loss of time credits and seeks
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invalidation of the sanctions. Petitioner claims that because the disciplinary hearing

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officer (DHO) was not an employee of the Federal Bureau of Prisons (BOP) and thus

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lacked the authority to conduct the disciplinary hearings and make findings resulting in

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punishment, including disallowance of good time credit, Petitioner suffered a violation of

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his right to due process of law. (Id. at 3.)

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Respondent moves for dismissal of the petition as moot because the disciplinary

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charges were reheard on July 24, 2014, by a certified disciplinary hearing officer of the

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BOP. At the rehearing, the BOP DHO found that Petitioner had committed the prohibited

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act of fighting. Petitioner was again sanctioned with a loss of twenty-seven (27) days of

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good conduct time credits and two months of disciplinary segregation. (Carol Cole Decl.,

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Attachs. 1-3, ECF No. 21-1.)

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II.

MOOTNESS

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Federal courts lack jurisdiction to decide cases that are moot because the courts'

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constitutional authority extends to only actual cases or controversies. Iron Arrow Honor

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Society v. Heckler, 464 U.S. 67, 70-71, 104 S. Ct. 373, 78 L. Ed. 2d 58 (1983). Article III

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requires a case or controversy in which a litigant has a personal stake in the outcome of

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the suit throughout all stages of federal judicial proceedings and has suffered some

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actual injury that can be redressed by a favorable judicial decision. Id. A petition for writ

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of habeas corpus becomes moot when it no longer presents a case or controversy under

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Article III, § 2 of the Constitution. Wilson v. Terhune, 319 F.3d 477, 479 (9th Cir. 2003).

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A petition for writ of habeas corpus is moot where a petitioner's claim for relief cannot be

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redressed by a favorable decision of the court issuing a writ of habeas corpus. Burnett v.

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Lampert, 432 F.3d 996, 1000-01 (9th Cir. 2005) (quoting Spencer v. Kemna, 523 U.S. 1,

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7, 118 S. Ct. 978, 140 L. Ed. 2d 43 (1998)). Mootness is jurisdictional. See, Cole v.

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

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moot petition must be dismissed because nothing remains before the Court to be

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remedied. Spencer v. Kemna, 523 U.S. 1, 18, 118 S. Ct. 978, 140 L. Ed. 2d 43.

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Here, documentation submitted by Respondent in support of the motion to
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dismiss demonstrates that the claim initially alleged by Petitioner is no longer in

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controversy. The charge was reheard by an officer who had the precise qualifications

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that Petitioner had alleged were required by principles of due process of law and the

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pertinent regulations. It is undisputed that the findings and sanctions that constituted the

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object of Petitioner's challenge in the petition have now been superseded by the findings

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and sanctions of the certified BOP DHO.

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When, because of intervening events, a court cannot give any effectual relief in

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favor of the petitioner, the proceeding should be dismissed as moot. Calderon v. Moore,

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518 U.S. 149, 150, 116 S. Ct. 2066, 135 L. Ed. 2d 453 (1996). In the present case, it

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appears that the only relief that Petitioner sought was invalidation of the findings and

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associated sanctions. It has been demonstrated that the rehearing of the incident report

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by an indisputably qualified DHO has effectuated the relief sought by Petitioner. Thus, it

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is no longer possible for this Court to issue a decision redressing the injury.

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In summary, Petitioner has not asserted any factual or legal basis that would

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preclude a finding of mootness. The Court thus concludes that the matter is moot

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because the Court may no longer grant any effective relief. See, Badea v. Cox, 931 F.2d

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573, 574 (9th Cir. 1991) (holding that a habeas claim was moot where a former inmate

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sought placement in a community treatment center but was subsequently released on

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parole and no longer sought such a transfer); Kittel v. Thomas, 620 F.3d 949 (9th Cir.

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2010) (dismissing as moot a petition seeking early release where the petitioner was

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released and where there was no live, justiciable question on which the parties

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disagreed).

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Accordingly, the motion to dismiss the petition as moot is granted.
III.

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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IV.

ORDER

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Accordingly, IT IS HEREBY ORDERED that:

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1) Respondent's Motion to Dismiss be GRANTED;

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2) The petition for writ of habeas corpus be DISMISSED as moot; and

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3) The Clerk be DIRECTED to close the action.

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IT IS SO ORDERED.
Dated:

April 7, 2015

/s/

Michael J. Seng

UNITED STATES MAGISTRATE JUDGE

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