(HC) Barnes v. Ahern ( 2019 )

1 2 3 4 5 6 UNITED STATES DISTRICT COURT 7 FOR THE EASTERN DISTRICT OF CALIFORNIA 8 9 PAUL S. BARNES, No. 2:19-cv-449-EFB P 10 Petitioner, 11 v. ORDER 12 AHERN, et al., 13 Respondents. 14 15 Petitioner is a former state and federal prisoner who, proceeding without counsel, seeks a 16 writ of habeas corpus pursuant to 28 U.S.C. § 2241. He filed his petition on August 20, 2018 in 17 the Northern District. ECF No. 2. On January 14, 2019, respondent Ahern filed a motion to 18 dismiss. ECF No. 20. On February 11, 2019, Paul Thompson – warden of the Federal 19 Correctional Institution at Herlong, California - filed an answer to the petition. ECF No. 24. 20 Finally, on March 12, 2019, the case was transferred to this district. ECF No. 27. 21 The court has reviewed the record and, for the reasons stated hereafter, directs petitioner 22 and respondent Paul Thompson to brief the issue of whether this petition should be dismissed as 23 moot. 24 Motion to Dismiss and Proper Respondent 25 As an initial matter, petitioner named Sheriff Ahern, the United States Marshal, the 26 Bureau of Prisons, and “[Glen Dyer Detention Facility] Alameda County” as respondents in this 27 § 2241 action. ECF No. 2 at 1. However, the proper respondent in a habeas petition is the person 28 “with the ability to produce the prisoner’s body before the habeas court.” Rumsfeld v. Padilla, 1 542 U.S. 426, 435 (2004). The court concludes that foregoing principle applies even where – as 2 here – petitioner has been released from custody during the pendency of the petition. See, e.g., 3 Mujahid v. Daniels, 413 F.3d 991, 994 (9th Cir. 2005) (“[A] habeas petitioner remains in the 4 custody of the United States while on supervised release. . . . [J]urisdiction attaches on the initial 5 filing for habeas corpus relief, and it is not destroyed by a transfer of the petitioner and the 6 accompanying custodial change.”) (internal quotation marks and citations omitted). 7 The government, in its answer to the petition, contends that the proper respondent in this 8 action is Paul Thompson, Warden of FCI Herlong – the facility where petitioner was incarcerated 9 at the time he filed this petition. The court agrees. Consequently, all other respondents must be 10 dismissed. In so doing, the court necessarily grants the motion to dismiss filed by Sheriff Ahern 11 of Alameda County.1 12 Analysis 13 Petitioner argues that the government miscalculated his release date. Specifically, he 14 argues that it calculated his release date as January 3, 2019 when it ought to have been 15 “Sept[ember] 11th or 12th 2018.” ECF No. 2 at 8. 16 The petition appears, however, to be mooted by petitioner’s release. Petitioner does not 17 challenge the validity of his underlying conviction. He seeks, in terms of relief, only: (1) to have 18 his release date moved from January 2019 to September 2018 (thereby granting him immediate 19 release from custody); and (2) financial compensation for each day he was “unjustly and illegally 20 detained.” ECF No. 2 at 8. Neither of the avenues of relief are available to him. The record 21 indicates that he was released from federal custody on January 3, 2019. ECF No. 24-1 at 1-2, ¶ 2. 22 Thus, the court is no longer capable of granting him earlier release. See, e.g., Brady v. U.S. 23 Parole Com., 600 F.2d 234, 236 (9th Cir. 1979) (“Appellant's § 2241 habeas corpus petition 24 attacks the Parole Commission’s decision to keep him in custody. He is now on parole and does 25 not challenge the validity of his original conviction. On this record the case is moot.”); Fendler v. 26 United States Bureau of Prisons, 846 F.2d 550, 555 (9th Cir. 1988) (holding that district court 27 1 The court notes that all parties have consented to the undersigned’s jurisdiction. See 28 ECF Nos. 22, 31 & 35. 1 | properly denied § 2241 as moot where petitioner had been released, had sought only immediate 2 | release, and had not sought to have his release “backdated”’); Rhodes v. Judiscak, 676 F.3d 931, 3 | 935 (10th Cir. 2011) (holding that petitioner’s release from prison mooted his § 2241 habeas 4 || petition and noting that “[petitioner] can ask for a shorter term of supervised release. But to do so 5 || he must file a § 3583(e)(1) petition.”). And there is no indication that the alleged miscalculation 6 || of petitioner’s sentence represents a situation “capable of repetition, yet evading review” and to 7 || which the doctrine of mootness would not apply. See Cox v. McCarthy, 829 F.2d 800, 803 (9th 8 || Cir. 1987). Such a situation arises only where there exists a “reasonable expectation that the 9 || same complaining party will be subjected to the same action again.” Jd. Nothing in the record 10 | indicates this to be the case. Finally, mootness is not obviated by petitioner’s request for money 11 || damages insofar as they are not available in a section 2241 action. See Christian v. Norwood, 376 12 | F. App’x 725, 726 (9th Cir. 2010) (stating that “‘a § 2241 petition is not the proper vehicle for 13 | obtaining monetary damages.”) (unpublished) (citing Preiser v. Rodriguez, 411 U.S. 475, 494 14 | (1973). 15 Given that neither petitioner nor respondent Thompson has addressed the issue of 16 || mootness, however, the court will afford them the opportunity to do so before further considering 17 || dismissal on that basis. 18 Conclusion 19 Accordingly, it is ORDERED that: 20 1. The Clerk of Court shall add “Paul Thompson” to the docket as a respondent in this 21 || action; 22 2. Petitioner and respondent Thompson shall submit, within twenty-one from the date of 23 || service of this order, briefing addressing the issue of mootness (discussed supra); and 24 3. Respondent Ahern’s motion to dismiss (ECF No. 20) is GRANTED and the Clerk is 25 || directed to terminate him as a respondent. 26 | DATED: August 8, 2019. 27 “ EDMUND F. BRENNAN 28 UNITED STATES MAGISTRATE JUDGE