United States District Court, D. South Carolina, Anderson/Greenwood Division
REPORT AND RECOMMENDATION OF MAGISTRATE
JACQUELYN D. AUSTIN, Magistrate Judge.
matter is before the Court on Respondent's motion to
dismiss or, in the alternative, for summary judgment. [Doc.
12.] At the time the Petition was filed, Petitioner was a
federal prisoner, proceeding pro se, seeking relief pursuant
to 28 U.S.C. Â§ 2241. [Doc. 1.] Pursuant to the provisions of
28 U.S.C. Â§ 636(b)(1)(B) and Local Civil Rule 73.02(B)(2)(c),
D.S.C., this magistrate judge is authorized to review
post-trial petitions for relief and submit findings and
recommendations to the District Court.
filed this Petition for writ of habeas corpus on August 11,
2015. On October 15, 2015, Respondent filed
a motion to dismiss or, in the alternative, for summary
judgment. [Doc. 12.] On October 16, 2015, pursuant to
Roseboro v. Garrison, 528 F.2d 309 (4th Cir.1975),
Petitioner was advised to respond to the motion and of the
possible consequences if he failed to adequately respond.
[Doc. 13.] Petitioner's response in opposition was filed
on October 28, 2015. [Doc. 19.] Petitioner has now filed a
change of address [Doc. 24] to notify the Court that he is
residing at a private address in Harlingen, Texas, and the
Bureau of Prison's website confirms that Petitioner has
been released from prison. Accordingly, the Petition must be
dismissed as moot.
challenges his disciplinary action for the prohibited act of
Use of the Mail for Illegal Purposes in violation of Code
196. [Doc. 1 at 2.] Petitioner received the disciplinary
conviction while incarcerated at the McRae Correctional
Facility in McRae, Georgia. Petitioner seeks an order of
expungement of the incident report and the restoration of
forty-one days good time credit. [ Id. at 8.]
Petitioner was incarcerated at the Federal Correctional
Institution Williamsburg, in Salters, South Carolina, when he
filed the instant Petition. On November 9, 2015, Petitioner
was released from federal custody due to the expiration of
his sentence. [Doc. 24 (notice of Petitioner's change of
address to a private address); see also
https://www.bop.gov (BOP Inmate Locator indicating Petitioner
was released on November 9, 2015).]
Construction of Pro Se Petition
brought this action pro se, which requires the Court to
liberally construe his pleadings. Erickson v.
Pardus, 551 U.S. 89 (2007); Estelle v. Gamble,
429 U.S. 97, 106 (1976). Pro se pleadings are held to a less
stringent standard than those drafted by attorneys.
Haines v. Kerner, 404 U.S. 519, 520 (1972) (per
curiam); Gordon v. Leeke, 574 F.2d 1147, 1151 (4th
Cir. 1978). Even under this less stringent standard, however,
the pro se petition is still subject to summary dismissal.
Haines, 404 U.S. at 520-21. The mandated liberal
construction means only that if the court can reasonably read
the pleadings to state a valid claim on which the petitioner
could prevail, it should do so. Barnett v. Hargett,
174 F.3d 1128, 1133 (10th Cir. 1999). A court may not
construct the petitioner's legal arguments for him.
Small v. Endicott, 998 F.2d 411, 417-18 (7th Cir.
1993). Nor should a court "conjure up questions never
squarely presented." Beaudett v. City of
Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985).
to Dismiss Standard
Rule 12(b)(6) of the Federal Rules of Civil Procedure, a
motion to dismiss for failure to state a claim should not be
granted unless it appears certain that the petitioner can
prove no set of facts which would support his claim and
entitle him to relief. When considering a motion to dismiss,
the court should "accept as true all well-pleaded
allegations and should view the [petition] in a light most
favorable to the [petitioner]." Mylan Labs., Inc. v.
Matkari, 7 F.3d 1130, 1134 (4th Cir. 1993). However, the
court "need not accept the legal conclusions drawn from
the facts" nor "accept as true unwarranted
inferences, unreasonable conclusions, or arguments."
Eastern Shore Mkts., Inc. v. J.D. Assocs. Ltd.
P'ship, 213 F.3d 175, 180 (4th Cir. 2000). Further,
for purposes of a Rule 12(b)(6) motion, a court may rely on
only the [petition's] allegations and those documents
attached as exhibits or incorporated by reference.
See Simons v. Montgomery Cty. Police
Officers, 762 F.2d 30, 31 (4th Cir. 1985). If on a
motion pursuant to Rule 12(b)(6), matters outside the
pleadings are presented to and not excluded by the court, the
motion shall be treated as one for summary judgment under
Rule 56. See Fed.R.Civ.P. 12(d).
habeas corpus petition is moot when it no longer presents a
case or controversy under Article III, Â§ 2, of the
Constitution." Aragon v. Shanks, 144 F.3d 690,
691 (10th Cir. 1998) (citing Spencer v. Kemna, 523
U.S. 1, 7 (1998)). A case becomes moot when the issues
presented are no longer live, or when the parties lack a
cognizable interest in the outcome. Nakell v. Att'y
Gen. of N.C. , 15 F.3d 319, 322 (4th Cir.1994); Lane
v. Williams, 455 U.S. 624, 631 (1982) (holding that
habeas petitions were moot after prisoners' sentences
expired and where prisoners had attacked only their
sentences). Federal courts are "without power to decide
questions that cannot affect the rights of litigants in the
case before them." Incumaa v. Ozmint, 504 F.3d
281, 286 (4th Cir. 2007) (citing DeFunis v.
Odegaard, 416 U.S. 312, 316 (1974) (per curiam)).
well-settled that an individual must be "in
custody" under the conviction or sentence under attack
in order to be eligible for federal habeas corpus relief. 28
U.S.C. Â§ 2241(c). The "in custody" requirement must
be satisfied at the time the petition is filed with the
federal district court. Maleng v. Cook, 490 U.S.
488, 490-91 (1989). It is undisputed that Petitioner was in
custody when he filed this Petition. However, the issue is
whether Petitioner's release moots his Petition because
it no longer presents a case or controversy under Article
III, Â§ 2, of the Constitution. "This case-or-controversy
requirement subsists through all stages of federal judicial
proceedings, trial and appellate.... The parties must
continue to have a personal stake in the outcome' of the
lawsuit." Lewis v. Cont'l Bank Corp., 494
U.S. 472, 477-478 (1990).
habeas petition to present a live case and controversy after
a petitioner has been released from custody, the petitioner
must continue to suffer actual collateral consequences from
his conviction or deportation. Abdala v. I.N.S., 488
F.3d 1061, 1064 (9th Cir. 2007). In other words, "there
must be some remaining collateral consequence' that may
be redressed by success on the petition." Id.
"The test for mootness is whether the relief sought
would, if granted, make a difference to ...