Korsh v. Marques
Filing
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MEMORANDUM OPINION AND ORDER that Korsh's Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241 [Doc. No. 1 ] is DENIED. (Written Opinion) Signed by Judge Susan Richard Nelson on 2/5/2019. (SMD)
UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
Michael Lloyd Korsh,
Case No. 18-cv-1229 (SRN/LIB)
Petitioner,
v.
MEMORANDUM OPINION
AND ORDER
Warden R. Marques,
Respondent.
Michael Lloyd Korsh, pro se.
Ana H. Voss, Ann M. Bildtsen, & David W. Fuller, United States Attorney’s Office, 300
South 4th Street, Suite 600, Minneapolis, MN 55415, for Respondent.
SUSAN RICHARD NELSON, United States District Judge
This matter comes before the Court on the Objection (“Objection”) [Doc. No. 15]
of Petitioner Michael Lloyd Korsh to Magistrate Leo Brisbois’s Report and
Recommendation (“R&R”) dated July 2, 2018 [Doc. No. 14]. In the R&R, Magistrate
Judge Brisbois recommended that Korsh’s Petition for Writ of Habeas Corpus under 28
U.S.C. § 2241 (“Petition”) [Doc. No. 1] be denied. For the reasons set forth below, and
after a de novo review, the Petition is denied as moot.
I.
Background
Petitioner pled guilty to possession of child pornography in violation of 18 U.S.C.
§§ 2252(a)(4)(B) and (b)(2). USA v. Korsh, No. 16-cr-261, Plea Agreement [Doc. No.
14]. Petitioner was sentenced to a thirty-month term of imprisonment and ten years of
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supervised release on April 27, 2017. Id.
When Petitioner filed this Petition on May 3, 2018, he was in the custody of the
Federal Correctional Institute (“FCI”) in Sandstone, Minnesota. (Petition at 1.) Petitioner
argues that the Bureau of Prisons (“BOP”) was arbitrary and capricious when it placed
him in a residential reentry center (“RRC”) in Edina, Minnesota on September 25, 2018,
instead of on his original placement date of July 31, 2018. (Petition at 6–7; Pet’r’s Mem.
in Supp. [Docket No. 3] at 7–13.) Petitioner claims that he was entitled to complete 180
days in the RRC, instead of the 123 days he was ultimately assigned. (Petition at 8.)
In his R&R, Magistrate Judge Brisbois recommended denying the Petition and
dismissing the action with prejudice. (R&R at 9.) Specifically, Magistrate Judge Brisbois
determined that the Court lacked subject matter jurisdiction to consider Petitioner’s
claims and that the BOP did not violate any federal statutes or the Constitution. (Id. at 7,
9.)
However, on January 25, 2019, Petitioner was released from custody and his
period of supervised release began. Korsh, No. 16-cr-261, Supervised Release:
Modification of Conditions [Doc. No. 51].
II.
Discussion
A.
Standard of Review
Upon issuance of an R&R, a party may “serve and file specific written objections
to the proposed findings and recommendations.” Fed. R. Civ. P. 72(b)(2). The objections
should specify the portion of the magistrate judge’s [R&R] to which objections are made
and provide a basis for those objections.” Mayer v. Walvatne, No. 07-cv-1958
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(JRT/RLE), 2008 WL 4527774, at *2 (D. Minn. Sept. 28, 2008). Then, the district court
will review de novo those portions of the R&R to which an objection is made, and it “may
accept, reject, or modify, in whole or in part, the findings or recommendations made by the
magistrate judge.” 28 U.S.C. § 636(b)(1)(C); Fed. R. Civ. P. 72(b)(3); D. Minn. LR
72.2(b)(3).
B.
Analysis
Article III of the Constitution grants jurisdiction over cases and controversies. Ali
v. Cangemi, 419 F.3d 722, 723 (8th Cir. 2005). If a subsequent development in a case
results in a court’s inability to “grant effective relief, the case is considered
moot.” Id. (citation omitted); see also Roberts v. Norris, 415 F.3d 816, 819 (8th Cir.
2005). A petitioner’s release from custody does not automatically render the petition
moot. Estrada-Heredia v. Holder, No. 12-cv-1157 SRN/SER, 2012 WL 4839113 (D.
Minn. Sept. 25, 2012), report and recommendation adopted, No. 12-cv-1157 SRN/SER,
2012 WL 4839019 (D. Minn. Oct. 11, 2012). Application of the mootness doctrine
requires a court to determine whether any of the four exceptions to the doctrine apply.
The Court should not dismiss a petition for writ of habeas corpus as moot if:
(1) secondary or “collateral” injuries survive after resolution of the primary
injury; (2) the issue is deemed a wrong capable of repetition yet evading
review; (3) the defendant voluntarily ceases an allegedly illegal practice but
is free to resume it at any time; or (4) it is a properly certified class action
suit.
Sayonkon v. Beniecke, No. 12-cv-0027 MJD/JJK, 2012 WL 1621149, at *2 (D. Minn.
Apr. 17, 2012) (quoting Riley v. I.N.S., 310 F.3d 1253, 1256 (10th Cir. 2002)).
In this case, none of the four exceptions apply. First, there are no collateral
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injuries. By all indications in the record, Petitioner has been fully released from custody.
Korsh, No. 16-cr-261, Supervised Release: Modification of Conditions. Although he is
subject to conditions of supervised release, these collateral limitations cannot be
construed as a residual effect of the BOP's placement of Petitioner in an RRC fifty-seven
days later than he had requested.
Second, there is no evidence that Petitioner's detention is capable of repetition yet
evading review, which is an “extraordinarily narrow” exception to the mootness
doctrine. Minn. Human Soc’y v. Clark, 184 F.3d 795, 797 (8th Cir. 1999). A finding that
an issue is capable of repetition yet evading review requires a court to find a “reasonable
expectation that the same complaining party will be subject to the same action
again.” Id. (citing Hickman v. Missouri, 144 F.3d 1141, 1142 (8th Cir. 1998)). Thus, the
second exception is inapplicable.
Third, there is no evidence that Respondent voluntarily ended an allegedly illegal
detention solely to deprive the Court of jurisdiction. This exception provides that, “if it is
clear that the [respondent] has not changed course simply to deprive the court of
jurisdiction,” the issue is moot. Nat’l Adver. Co. v. City of Miami, 402 F.3d 1329, 1333
(11th Cir. 2005) (per curiam). Therefore, the third exception does not apply.
Fourth and finally, as this is not a class action, the fourth exception is inapplicable.
Because the Court can no longer order the relief Petitioner requests, and because
none of the four exceptions to the mootness doctrine are present, no case or controversy
exists sufficient to grant this Court jurisdiction under Article III of the Constitution.
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III.
Conclusion
Based on the foregoing, and all the files, records and proceedings herein, IT IS
HEREBY ORDERED that:
1. Petitioner Korsh’s Petition for Writ of Habeas Corpus under 28 U.S.C. § 2241
[Doc. No. 1] is DENIED; and
2. This action is DISMISSED.
LET JUDGMENT BE ENTERED ACCORDINGLY.
Dated: February 5, 2018
s/ Susan Richard Nelson
SUSAN RICHARD NELSON
United States District Judge
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