Sekerke v. Gore ( 2021 )

1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 SOUTHERN DISTRICT OF CALIFORNIA 10 11 KEITH WAYNE SEKERKE, Case No.: 20-CV-1998 JLS (MSB) 12 Petitioner, ORDER DISMISSING PETITION 13 v. FOR WRIT OF HABEAS CORPUS AS MOOT 14 WILLIAM GORE, Sheriff, 15 Respondent. (ECF No. 1) 16 17 18 On October 9, 2020, Petitioner Kevin Wayne Sekerke (“Petitioner” or “Sekerke”), a 19 prisoner proceeding pro se, filed a Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. 20 § 2254, challenging his confinement at San Diego County Jail while awaiting sentencing 21 on several felony convictions in San Diego Superior Court Case Nos. SCS304221 and 22 SCS305297. “Pet.,” ECF No. 1 at 1. Sekerke alleges the dangers presented by the COVID- 23 19 pandemic, combined with his pre-existing medical conditions, render his continued 24 detention in the San Diego County Jail unconstitutional under the Eighth and Fourteenth 25 Amendments. Id. at 6–8. 26 BACKGROUND 27 On August 19, 2021, this Court denied Respondent’s Motion to Dismiss the Petition 28 for Failure to State a Claim. See ECF No. 11. The Court found that in the specific context 1 of the COVID-19 pandemic, when a prisoner claims his detention is unconstitutional in 2 light of the dangers presented by COVID-19 combined with the petitioner’s particular 3 circumstances and that petitioner further contends there are “no set of conditions” that 4 could possibly make his custody constitutional, a petition for habeas corpus is the proper 5 vehicle for challenging that custody. See id. at 12–13 (citing Wilson v. Williams, 961 F.3d 6 829, 832–33 (6th Cir. 2020) (holding a petition for habeas corpus filed by the federal 7 prisoners under 28 U.S.C. § 2241 was the proper vehicle when the prisoners sought “release 8 from custody to limit their exposure to the COVID-19 virus”); Bent v. Barr, No. 19-CV- 9 06123-DMR, 2020 WL 3640009, at *2 (N.D. Cal. July 6, 2020) (stating that “even for state 10 prisoners, the Ninth Circuit has held that ‘habeas jurisdiction is proper where a challenge 11 to prison conditions would, if successful, necessarily accelerate the prisoner’s release’”)). 12 The Court, however, also issued an Order to Show Cause (“OSC”) as to why the 13 Petition should not be dismissed as moot after Sekerke’s transfer from San Diego County 14 Jail to the custody of the California Department of Corrections and Rehabilitation 15 (“CDCR”).1 ECF No. 11. Sekerke filed a response to the OSC on August 27, 2021. ECF 16 No. 12. Respondent did so on September 8, 2021. ECF No. 14. 17 DISCUSSION 18 A federal court has neither the power to render advisory opinions nor “to decide 19 questions that cannot affect the rights of litigants in the case before them.” North Carolina 20 v. Rice, 404 U.S. 244, 246 (1971). Generally, a case becomes moot when the issues 21 presented are no longer “live,” or the parties lack a legally cognizable interest in the 22 outcome. City of Erie v. Pap’s A.M., 529 U.S. 277, 287 (2000). The basic question in 23 determining mootness is “whether there is a present controversy as to which effective relief 24 can be granted.” Outdoor Media Group, Inc. v. City of Beaumont, 506 F.3d 895, 900 (9th 25 26 1 On July 23, 2021, Petitioner submitted a “Notice of Change of Address,” indicating that he was housed 27 in Wasco State Prison, a CDCR facility located in Kern County, California. See ECF No. 10. On October 28 4, 2021, Petitioner submitted a new “Notice of Change of Address,” indicating that he is now housed in 1 Cir. 2007) (quoting Vill. of Gambell v. Babbitt, 999 F.2d 403, 406 (9th Cir. 1993)). 2 Here, the claims raised in the Petition relate to the specific conditions at San Diego 3 County Jail, and the only remedy Petitioner seeks is release from San Diego County Jail 4 custody. See generally, Pet., ECF No. 1. As Petitioner concedes, he is no longer in the 5 custody of the San Diego County Jail, nor is he in the custody of any San Diego County 6 detention facility. ECF No. 12 at 2. Because Petitioner is specifically challenging 7 conditions of confinement at San Diego County Jail and is seeking only release from 8 County Jail as a remedy, his transfer to Wasco State Prison renders his request for habeas 9 relief moot. See Johnson v. Moore, 948 F.2d 517, 519 (9th Cir. 1991) (concluding 10 prisoner’s transfer to another correctional facility rendered moot his claims for injunctive 11 relief relating to the facility where the prisoner was no longer housed); see also Ndudzi v. 12 Castro, No. SA-20-CV-0492-JKP, 2020 WL 3317107, at *7 (W.D. Tex. June 18, 2020) 13 (finding an immigration detainee’s § 2241 habeas claims related to COVID-19 were 14 rendered moot when his request for release on habeas corpus was premised upon conditions 15 of confinement at a specific facility and the petitioner was later transferred to another 16 facility). 17 Sekerke argues the case is not moot because, although he has been transferred to 18 CDCR custody, the conditions at Wasco State Prison are just as unsafe as they were at San 19 Diego County Jail. See ECF No. 12 at 2. He asks the Court to substitute the CDCR 20 Secretary as Respondent so he can proceed with his case against CDCR and Wasco State 21 Prison.2 See id. But none of the claims raised in the Petition relate to his previous custody 22 at Wasco State Prison or his current custody at Valley State Prison. See generally, Pet., 23 ECF No. 1. Therefore, there is no “present controversy as to which effective relief can be 24 /// 25 26 2 As the Court noted supra, since filing his response to the OSC on August 27, 2021, Petitioner has been 27 transferred from Wasco State Prison to Valley State Prison. See ECF No. 15. However, even assuming 28 Petitioner would argue the conditions at Valley State Prison are unsafe, this case still must be dismissed 1 || granted” and as such, the case must be dismissed as moot. See Outdoor Media, 506 F.3d 2 |} at 900. 3 CONCLUSION 4 Based on the foregoing, the Court DISMISSES the Petition as MOOT. Rule 11 of 5 ||the Rules Following 28 U.S.C. § 2254 requires the District Court to “issue or deny a 6 || certificate of appealability when it enters a final order adverse to the applicant.” Rule 11, 7 U.S.C. foll. § 2254 (West 2019). A certificate of appealability will issue when the 8 || petitioner makes a “substantial showing of the denial of a constitutional right.” 28 U.S.C. 9 2253 (West 2019); Pham v. Terhune, 400 F.3d 740, 742 (9th Cir. 2005). A “substantial 10 showing” requires a demonstration that “reasonable jurists would find the district court’s 11 assessment of the constitutional claims debatable or wrong.” Beaty v. Stewart, 303 F.3d 12 ||975, 984 (9th Cir. 2002) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). Here, the 13 || Court concludes Sekerke has not made the required showing, and therefore a certificate of 14 || appealability is DENIED. 15 IT IS SO ORDERED. 16 Dated: October 8, 2021 tt 17 jen Janis L. Sammartino 18 United States District Judge 19 20 21 22 23 24 25 26 27 28