Michael Strauss v. United States of America, Robert Elsea, Warden, Lexington Federal Correctional Institution , 782 F.2d 1043 ( 1985 )

782 F.2d 1043

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
MICHAEL STRAUSS, Petitioner-Appellant,
v.
UNITED STATES OF AMERICA, ROBERT ELSEA, Warden, Lexington
Federal Correctional Institution, Respondent-Appellee.

85-5069

United States Court of Appeals, Sixth Circuit.

12/13/85

ORDER

BEFORE: ENGEL, KENNEDY and MILBURN, Circuit Judges.

1

This matter is before the Court upon the government's motion to dismiss petitioner's appeal of the district court's order of January 11, 1985. The order dismissed petitioner's petition for writ of habeas corpus, 28 U.S.C. Sec. 2241 and motion for temporary restraining order, which sought his immediate release from the Federal Correctional Institution, at Lexington, Kentucky, where he was serving concurrent five-year terms of imprisonment for mail fraud, in violation of 18 U.S.C. Sec. 1341, and wire fraud, in violation of 18 U.S.C. Sec. 1343.

2

Petitioner was released from the Community Care Center, Washington, D.C. on July 19, 1985, pursuant to the mandatory release provisions of 18 U.S.C. Sec. 4164, and did not file a response to the motion to dismiss. Since petitioner is no longer in physical custody and this is not a class action, the Court concludes that the appeal is moot. LoCicero v. Day, 518 F.2d 783 (6th Cir. 1975) (per curiam); Accord Lane v. Williams, 455 U.S. 624, 631 (1982); Weinstein v. Bradford, 423 U.S. 147, 149 (1975) (per curiam). This Court would also dismiss the appeal on the alternative grounds that petitioner did not exhaust his administrative remedies before seeking habeas relief. Little v. Hopkins, 638 F.2d 953, 954 (6th Cir. 1981) (per curiam); Preiser v. Rodriguez, 411 U.S. 475, 500 (1973). Accordingly,

3

It is ORDERED that respondent-appellee's motion to dismiss is granted.