Berry v. Fox

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT November 30, 2017
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Elisabeth A. Shumaker
Clerk of Court
DUANE LETROY BERRY,
Petitioner - Appellant,
v. No. 17-6192
(D.C. No. 5:17-CV-00202-R)
JOHN B. FOX, (W.D. Okla.)
Respondent - Appellee.
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ORDER AND JUDGMENT*
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Before KELLY, MURPHY, and MATHESON, Circuit Judges.**
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Petitioner - Appellant Duane Berry, appearing pro se, appeals from the district
court’s dismissal of his petition for habeas relief under 28 U.S.C. § 2241. Mr. Berry
was indicted on charges of “perpetrating false information and hoaxes” in violation
of 18 U.S.C. § 1038 in the Eastern District of Michigan. Order of Commitment to
Att’y Gen. (Doc. No. 45) at 2, United States v. Berry, No. 2:15-cr-20743 (E.D. Mich.
Aug. 30, 2016). That district court found that Mr. Berry suffered from a “mental
disease” which made him unable to “assist properly in his defense” and ordered him
*
This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
**
After examining the brief and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
committed to the custody of the Attorney General and hospitalized to determine
whether he might attain capacity to permit further proceedings. Id. at 3–4. While he
was temporarily confined at the Federal Transfer Center in Oklahoma City, he filed
this habeas petition challenging his commitment. Berry v. Fox, No. CIV-17-202-R,
2017 WL 3203706, at *1 (W.D. Okla. June 30, 2017), report and recommendation
adopted, No. CIV-17-202-R, 2017 WL 3197239 (W.D. Okla. July 27, 2017).
Before the district court could rule on that petition, however, Mr. Berry was
transferred to a Michigan county jail. Id. The district court referred the petition to a
magistrate judge who recommended that the petition be dismissed without prejudice
as moot because Mr. Berry was no longer in the custody of the Bureau of Prisons
and, therefore, it could not order any “effectual relief.” Id. at *2 (quoting Griffin v.
Kastner, 507 F. App’x 801, 802 (10th Cir. 2013)); see Rumsfeld v. Padilla, 542 U.S.
426, 442 (2004).
As we understand it, Mr. Berry contends that he is only being detained
temporarily by Michigan and that he should be returned to federal custody so he may
challenge his detention. So construed, he does not need a certificate of appealability.
Montez v. McKenna, 208 F.3d 862, 867 (10th Cir. 2000). He argues that he was
unlawfully removed, that his removal violated his Fifth Amendment right to due
process, and that the district court had jurisdiction. Although jurisdiction attaches
under § 2241 where the inmate is confined when the petition is filed, the district
court’s order was undoubtedly correct that Mr. Berry’s transfer to state custody in
Michigan rendered the court incapable of ordering effectual relief vis-à-vis the FTC
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warden; accordingly, the petition was moot. See Griffin, 507 F. App’x at 802-03.
We affirm the dismissal without prejudice for substantially the same reasons as the
district court.
AFFIRMED. All pending requests for the court to take judicial notice are
DENIED.
Entered for the Court
Paul J Kelly, Jr.
Circuit Judge
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