Stone v. Thomas

Filing 25

ORDER. Petitioner's petition for writ of habeas corpus 1 is DENIED as moot, and this proceeding is DISMISSED with prejudice. Signed on 4/8/11 by Judge Malcolm F. Marsh. (dmd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF OREGON
PORTLAND DIVISION
CV. 08-496-MA

KENNETH W. STONE,
Petitioner,

ORDER

v.
J. E. THOMAS,
Respondent.
MARSH, Judge
Petitioner

Kenneth

W.

Stone

proceeding pursuant to 28 U.S.C.
Prisons'

(BOP's)

refusal

to

§

brings

this

corpus

2241, challenging the Bureau of

grant

him

12

months

placement in a residential reentry center (RRC).
that follow,

habeas

pre-release

For the reasons

petitioner's habeas corpus petition is DENIED,

and

this proceeding is DISMISSED.
BACKGROUND

Petitioner is serving a 60-month term of imprisonment to be
followed by five years of supervised release.
petitioner at FPC Sheridan, Oregon.

1 - ORDER

The BOP placed

The parties have informed the

court that petitioner was released from custody on August 27, 2010.
Petitioner is one of seventeen Fcr Sheridan inmates who has
challenged the BOP's policies for determining when an inmate will
be designated for placement in an RRC following the Second Chance
Act, Pub. Law 110-199,
court has
Thomas,

231, 122 Stat. 657 (April 9, 2008).

§

issued decisions in three

No.

08-705-MA,

adhered to on recon.,

2009

related cases:

WL 1925469

2009 WL 2476606

(D.
(D.

Or.
Or.

Pierce v.

July 1,
Aug.

This

10,

2009),
2009),

Sacora v. Thomas, No. 08-578-MA, D. Or. June 16, 2010 (Opinion and
Order #57), and Sass v. Thomas, No. 08-300, 2009 WL 2230759 (D. Or.
July

23,

2009).

Notably,

in

Pierce,

r

determined

that

the

petitioner's transfer to an RRC rendered his case moot because
Pierce was challenging only the location of his imprisonment, not
the length of his sentence, and there was no effective remedy that
this court could provide.
On August 3,

2010,

Pierce, 2009 WL 1925469 at *3-4.
r entered an order to stay petitioner's

case pending resolution of Sacora, Pierce, and Sass on appeal to
the Ninth Circuit.

The Ninth Circuit has now affirmed these cases.

Sacora v. Thomas, 628 F.3d 1059 (9th Cir. 2010); Pierce v. Thomas,
No. 09-35781, 400 Fed. Appx. 259 (9th Cir. 2010); Sass v. Thomas,
No. 09-35830, 2010 WL 5034102

(9th Cir. Dec. 8, 2010).

On March

10, 2011, r vacated the stay and ordered petitioner to show cause
why this case should not be dismissed as moot based on the decision
in Pierce.
2 - ORDER

The parties have submitted the requested briefing.

DISCUSSION

Respondent

submits

that

petitioner's

release

from

custody

renders this case moot based on the reasoning set forth in Pierce.
Petitioner argues that Pierce is not controlling because the Ninth
Circuit's determination was not selected for publication and is not
precedent under Ninth Circuit Rule 36-3.
Although

the

Ninth

Circuit's

decision

in

Pierce

is

not

precedent under Rule 36-3(a), it nevertheless affirmed this court's
decision and reasoning.

Accordingly,

I

adhere

to my previous

rationale articulated in Pierce, 2009 WL 1925469.
Petitioner also contends that his case is not moot based on
the reasoning in Serrato v. Clark, 486 F.3d 560
According

to

petitioner,

distinguished Serrato.
As

I

explained

current claim.

my

decision

in

(9th Cir. 2007).

Pierce

incorrectly

I disagree.

in

Pierce,

In Serrato,

Serrato

is

unlike petitioner's

the petitioner was challenging the

termination of a boot camp program, under which Serrato would have
been eligible for a six month sentence reduction.
F.3d at 562-63 & n.1.

Serrato,

486

The court reasoned that Serrato's transfer

to supervised release did not moot her case because Serrato was
challenging a program which impacted the length of her sentence.
Indeed, if Serrato had completed boot camp, her sentence may have
been reduced,
sooner.

thereby starting

her

term of

supervised

release

It was Serrato's over-incarceration which made the injury

3 - ORDER

redressable in a motion to reduce her term of supervised release
under 18 U.S.C.
moot.

§

3583(e) (2), and prevented the case from becoming

Accord Muiahid v.

Daniels,

413 F.3d 991,

994-96 (9th Cir.

2005), cert. denied, 547 U.S. 1149 (2006) (challenging the denial of
good

time

credits;

case

not

moot

upon

transfer

to

supervised

release) .
Unlike the boot camp in Serrato, neither statutory provision
petitioner

challenges

in

this

action

operates

petitioner's term of supervised release any sooner.
§§

3621 (b)

&

3624 (c) .

to

commence

See 28 U.S.C.

It is undisputed that petitioner's release

date remained the same whether was is in an RRC, home confinement
or in prison at Sheridan.

Because there are no over-incarceration

concerns at issue in this case, Serrato does not govern.
For the reasons stated above, and for the additional reasons
stated

in my decision in

Pierce,

I

conclude that petitioner's

transfer to home confinement on December 6, 2010, leaves this court
with no effective remedy it can provide.

Accordingly, petitioner's

case is now moot, and this court lacks jurisdiction.!

!I note that petitioner's substantive arguments were
rejected in Sacora v. Thomas, 628 F.3d 1059 (9th Cir. 2010).
I
deny petitioner's renewed request to stay this case pending the
outcome of a petition for writ of certiorari in Sacora.
4 - ORDER

CONCLUSION

Based on the foregoing,
habeas

corpus

(#1)

is

petitioner IS petition for writ of

DENIED as moot,

and this

proceeding is

DISMISSED with prejudice.
IT IS SO ORDERED.
DATED this

? day

of APRIL, 2011.

Malcolm F. Marsh
United States District Judge

5 - ORDER