United States District Court, D. South Carolina
REPORT AND RECOMMENDATION MAGISTRATE JUDGE
GORDON BAKER UNITED STATES MAGISTRATE JUDGE.
Ronald Francis Croteau (“Petitioner” or
“Croteau”) filed this habeas action pursuant to
28 U.S.C. § 2241 on or about March 21, 2018, while
incarcerated at the Federal Correctional Institution in
Estill, South Carolina. (Dkt. No. 1.) Petitioner challenges
the delay of his entry into a “Half Way House”
and the failure to place him in the Federal Location
Monitoring (“FLM”) Program Home Confinement
Supervision (“Home Confinement”). (See Dkt. No. 1
at 2.) Based on Petitioner's submissions, it appears that
his Residential Reentry Center (“RCC”) date of
April 12, 2018, was changed to October 9, 2018, and he was
not given the opportunity to be placed in Home Confinement on
his eligible date of July 26, 2018. (Dkt. No. 1 at 2; Dkt.
No. 1-1 at 6-9.) The petition requests that the Court order
the Bureau of Prisons (“BOP”) to immediately
release him to RRC placement, or, in the alternative, to Home
Confinement. On August 28, 2018, Petitioner notified
the Clerk of Court via telephone that his address has changed
to Dismas Charities in Orlando, Florida. Additionally,
information on the Federal Bureau of Prison's website
establishes that Petitioner has been transferred to an RRC
facility in Orlando, Florida, with a release date of January
29, 2018, Respondent filed a Motion to Dismiss, (Dkt. No.
17), to which Petitioner responded on or about June 15, 2018
(Dkt. No. 23). Petitioner has also filed several motions: (1)
Motion to Amend the Petition on May 29, 2018 (Dkt. No. 16);
(2) Motion to Supplement the Record on May 30, 2018 (Dkt. No.
20); (3) Motion to Appoint Standby Counsel on June 15, 2018
(Dkt. No. 22); (4) Motion to Vacate Void Judgment on July 11,
2018 (Dkt. No. 26); (5) Motion for Hearing on July 18, 2018
(Dkt. No. 27); (6) Motion for Default Judgment on August 1,
2018 (Dkt. No. 29); (7) Motion to Stay pending address change
on August 9, 2018 (Dkt. No. 30); and (8) Motion to Stay on
August 10, 2018 (Dkt. No. 31).
to the provisions of Title 28, United States Code, Section
636(b)(1)(B), and Local Rule 73.02(B)(2)(c), D.S.C., this
magistrate judge is authorized to review the instant petition
for relief and submit findings and recommendations to the
District Court. For the reasons set forth herein, the
undersigned recommends dismissing the § 2241 petition
based on Petitioner's transfer to a RCC facility, thereby
rendering the petition moot. In the alternative, the
undersigned recommends granting Respondent's Motion to
Dismiss (Dkt. No. 17.) The undersigned further recommends
denying Petitioner's motions as moot. (Dkt. Nos. 16; 20;
22; 26; 27; 29; 30; 31.)
Se Habeas Review
pleadings are given liberal construction and are held to a
less stringent standard than formal pleadings drafted by
attorneys. Erickson v. Pardus, 551 U.S. 89, 94
(2007); De'Lonta v. Angelone, 330 F.3d 630, 633
(4th Cir. 2003); Gordon v. Leeke, 574 F.2d 1147,
1151 (4th Cir. 1978). However, “[t]he ‘special
judicial solicitude' with which a district court should
view . . . pro se filings does not transform the court into
an advocate. Only those questions which are squarely
presented to a court may properly be addressed.”
Weller v. Dep't of Soc. Servs., City of
Baltimore, 901 F.2d 387, 391 (4th Cir. 1990). Giving
“liberal construction” does not mean that the
Court can ignore a prisoner's clear failure to allege
facts that set forth a cognizable claim. “Principles
requiring generous construction of pro se complaints . . .
[do] not require . . . courts to conjure up questions never
squarely presented to them.” Beaudett v. City of
Hampton, 775 F.2d 1274, 1278 (4th Cir. 1985), cert.
denied, 475 U.S. 1088 (1986).
Motion to Dismiss
seeks dismissal under Rule 21(b)(1) of the Federal Rules of
Civil Procedure. (Dkt. No. 17 at 1.) Under Rule 12(b)(1), the
petitioner bears the burden of showing that federal
jurisdiction is appropriate when challenged by respondents.
McNutt v. General Motors Acceptance Corp., 298 U.S.
178, 189 (1936); Adams v. Bain, 697 F.2d 1213, 1219
(4th Cir. 1982). When the Rule 12(b)(1) motion attacks the
complaint as failing to state facts upon which subject matter
jurisdiction may be based, the facts in the complaint are
assumed to be true and the petitioner is afforded the same
protections he or she would receive under a Rule 12(b)(6)
motion. Adams, 697 F.2d at 1219. The Rule 12(b)(1) motion may
attack alternatively the existence of subject matter
jurisdiction in fact, apart from the complaint. Id.
This type of attack is used when a court's limited
jurisdiction precludes hearing the case brought. Materson
v. Stokes, 166 F.R.D. 368, 371 (E.D. Va. 1996) (citing
Mortensen v. First Fed. Sav. And Loan Ass'n, 549
F.2d 884, 891 (3rd Cir. 1977)); Adams, 697 F.2d at 1219.
Because the court's power to hear the case is at issue in
a Rule 12(b)(1) motion, the court is free to weigh the
evidence to determine the existence of jurisdiction.
Adams, 697 F.2d at 1219.
does not challenge the validity of his conviction. He
challenges only the delay of his entry into a “Half Way
House” and the failure to place him in Home
Confinement. (See Dkt. Nos. 1 at 2, 6; 1-1 at 6-9.) As
relief, Petitioner requests that the Court order the Bureau
of Prisons (“BOP”) to immediately release him to
RRC placement, or, in the alternative, to Home Confinement.
(Dkt. No. 1 at 8.) But the Federal Bureau of Prison's
website establishes that during the pendency of this action,
Petitioner was placed in a RCC and will be released on
January 11, 2019. Petitioner's placement in a RCC has
been further confirmed by Petitioner's notification of
his change in address to Dismas Charities, an organization
that operates state and federal residential re-entry
centers. Thus, the Court can no longer provide
Petitioner the relief he seeks. Williams, 716 F.3d
Article III of the Constitution, a federal court may
adjudicate “only actual, ongoing cases or
controversies.” Lewis v. Continental Bank
Corp., 494 U.S. 472, 477, 110 S.Ct. 1249, 108 L.Ed.2d
400 (1990). The case or controversy requirement continues
through all stages of federal judicial proceedings, and
requires that parties have a personal stake in the outcome.
Lewis, 494 U.S. at 477-478, 110 S.Ct. 1249, 108
L.Ed.2d 400. “This means that, throughout the
litigation, the plaintiff ‘must have suffered, or be
threatened with, an actual injury traceable to the defendant
and likely to be redressed by a favorable judicial
decision.'” Spencer v. Kemna, 523 U.S. 1,
7, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998) (quoting
Lewis, 494 U.S. at 477, 110 S.Ct. 1249, 108 L.Ed.2d
400). A federal court lacks the power to decide questions
that cannot affect the rights of litigants before it.
Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct.
1944, 23 L.Ed.2d 491 (1969) (“[A] claim is moot when
the issues presented are no longer ‘live' or the
parties lack a legally cognizable interest in the
outcome.”). “A change in factual circumstances
can moot a case on appeal, such as when the plaintiff
receives the relief sought in his or her claim,  or when an
event occurs that makes it impossible for the court to grant
any effectual relief to the plaintiff.” Williams v.
Ozmint, 716 F.3d 801, 809 (4th Cir. 2013) (citing
Simmons v. United Mortg. & Loan Inv.,
LLC, 634 F.3d 754, 763 (4th Cir. 2011); Church of
Scientology of Cal. v. United States, 506 U.S. 9, 12,
113 S.Ct. 447, 121 L.Ed.2d 313 (1992)).
Leonard v. Hammond, the Fourth Circuit noted that there are
two exceptions to the mootness doctrine: (1) the
“collateral consequences” exception; and (2) the
“capable of repetition, yet evading review”
exception. 804 F.2d 838, 842 (4th Cir. 1986). Under the
collateral consequences exception, a habeas claim is not moot
where a conviction results in collateral consequences that
survive the sentence. Id. “Where the criminal
conviction, for example, results in the continued denial of
important civil rights, such as the right-to-vote or the
right to be considered for jury duty, the claim for habeas
relief will remain a live controversy even after the prisoner
has been released from custody. Similarly, where the criminal
conviction may result in an enhanced sentence should the
petitioner later be convicted of another crime, h[is] stake
in habeas relief permits the court to exercise its judicial
function long after [ ]he has been freed.”
Broughton v. State of N.C., 717 F.2d 147, 148-149
(4th Cir. 1983) (internal citations omitted). Under the
capable of repetition, yet evading review exception, a
conviction is not moot where two elements are met: “(1)
the challenged action [is] in its duration too short to be
fully litigated prior to its cessation or expiration, and (2)
there [is] a reasonable expectation that the same complaining
party would be subjected to the same action again.”
Leonard, 804 F.2d at 842 (quoting Weinstein v.
Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 46 L.Ed.2d
350 (1975)) (alterations in original).
the Court can no longer provide Petitioner the relief he
seeks, Williams, 716 F.3d at 809, and there is no
basis to find that either exception to the mootness doctrine
applies, Leonard, 804 F.2d at 842, the undersigned recommends
that Petitioner's habeas claims be dismissed as
moot. See, e.g., McKinney-Bey v.
Hawk-Sawyer, No. 03-6455, 69 Fed.Appx. 113 (4th Cir. May
29, 2003) (unpublished per curiam decision) (affirming
dismissal of § 2241 petition as moot, where petitioner
sought immediate transfer from prison to half-way house, and
petitioner received transfer prior to consideration by Court
of Appeals); see also Walker v. Sanders, No.
09-56380, 2010 WL 2640358 (9th Cir. July 1, 2010) (affirming
district court's dismissal of § 2241 petition as
moot, where petition challenged BOP's determination
concerning RRC placement and sought immediate transfer to an
RRC, and petitioner was placed at an RRC during pendency of
the proceeding); Laor v. Federal Bureau of Prisons,
340 Fed.Appx. 771 (3rd Cir. Aug. 19, 2009) (holding that
federal prisoner's release to RRC rendered moot §
2241 petition challenging BOP's pre-release custody
policies and seeking placement in pre-release custody;
prisoner demonstrated no concrete and continuing injury or
collateral consequence that remained after placement in an
RRC); Miller v. Whitehead, 527 F.3d 752, 756 (8th
Cir. 2008) (dismissing § 2241 appeal as moot because
inmates had received the requested relief of placement in an
RRC); Hildreth, 2011 WL 5117423, at *5 (finding
federal prisoner's placement at a RRC rendered moot
§ 2241 petition, where petition challenged BOP's
determination concerning RRC placement).
event the District Court prefers not to adopt a
recommendation based on sua sponte review, the undersigned
proceeds to address Respondent's Motion to Dismiss.
Motion to Dismiss, Respondent first asserts the petition
should be dismissed “because Petitioner has failed to
exhaust his administrative remedies.” (Dkt. No. 17 at
12.) Petitioner, however, asserts that he exhausted his
administrative remedies. (Dkt. No. 1 at 2-4, Dkt. No. 23 at
speaking, before a petitioner files a petition for a writ of
habeas corpus, the petitioner must exhaust his or her
administrative remedies prior to filing such petition. See
McClung v. Shearin, 90 Fed.Appx. 444, 445 (4th Cir.
2004) (per curiam) (unpublished) (“Federal prisoners
must exhaust their administrative remedies prior to filing
§ 2241 petitions.”) (citing Carmona v. United
States Bureau of Prisons, 243 F.3d 629, 634 (2d Cir.
2001); Little v. Hopkins, 638 F.2d 953, 953-54 (6th
Cir. 1981); see also Henderson v. Warden, Edgefield
Satellite Prison Camp, No. C/A No. 209-cv-01599-RBH,
2009 WL 3317149, at *2 (D.S.C. Oct. 14, 2009) (“It is
well settled that a federal prisoner is required to exhaust
his administrative remedies within the BOP before filing an
action pursuant to § 2241.”) (citing Pelissero
v. Thompson, 170 F.3d 442, 445 (4th Cir. 1999);
United States v. Strickland, No. 7:98-cr-82-5- F(1),
2004 WL 3414644, at *1 (E.D. N.C. Aug. 9, 2004), aff'd,
126 Fed.Appx. 116 (4th Cir. 2005)).
exhaustion of administrative remedies procedure required of a
§ 2241 petitioner is a wholly judicially created
requirement. See Strickland, 2004 WL 3414644, at *1.
Specifically, the three-tiered formal administrative
grievance process, in addition to an informal resolution
process, is set out at 28 C.F.R. §§ 542 et seq. An
inmate may complain about any aspect of his confinement by
first seeking to informally resolve the complaint at the
institution level. 28 C.F.R. § 542.13. If the matter
cannot be resolved informally, the inmate may file a formal
written complaint to the warden within 20 calendar days after
the date upon which the basis for the request occurred. 28
C.F.R. § 542.14. The matter will be investigated, and a
written response provided to the inmate. Id. If
dissatisfied with the response, the inmate may appeal to the
Regional Director within 20 days of the date of the
Warden's response. 28 C.F.R. § 542.15(a). If
dissatisfied with the regional response, the inmate may
appeal to the General Counsel within 30 days of the Regional
Director's response. Id. Appeal to the General
Counsel is the final level of agency review. Id.
of administrative remedies may be excused when a petitioner
establishes that exhaustion would be futile. Strickland, 2004
WL 3414644, at *1. Petitioner bears the burden of
demonstrating futility. See Fuller v. Rich, 11 F.3d
61, 62 (5th Cir. 1994) (per curiam). Exhaustion is futile if
there has been “a prior indication from the agency that
it does not have jurisdiction over the matter or it has
evidenced a strong position on the issue together with an
unwillingness to reconsider.” ...