United States District Court, E.D. Oklahoma
CHRISTOPHER E. LONGSTRETH, Petitioner,
KEN KLINGLER, Warden, Respondent.
OPINION AND ORDER
H. Payne United States District Judge.
matter comes before the court on a Motion to Dismiss (Dkt. #
10) petitioner's petition for writ of habeas corpus (Dkt.
# 2) brought pursuant to 28 U.S.C. § 2241 in which
petitioner seeks his immediate release from custody.
Respondent seeks dismissal for two reasons: (1) the petition
is time barred and (2) failure to exhaust administrative
remedies. On December 6, 2016, petitioner discharged his
sentence and he is no longer incarcerated by the respondent.
See, Dkt. #s 13 and 14.
of the Facts
was sentenced on May 5, 1987, in Tulsa County Case No.
CF-1987-601, to serve 45 years for Shooting with Intent to
Kill, AFCF. Dkt. # 10-2. Petitioner began serving this
sentence on May 5, 1987 and completed it on July 22, 2012. On
July 22, 2012, Petitioner rebilled and begin serving a 5 year
sentence for Burglary of an Automobile in Tulsa County Case
No. CRF-81-4094, concurrently with a 5 year sentence for
Possession of a Firearm, AFCF in Tulsa County Case No.
CRF-87-602. Dkt. #s 10-3 and 10-4. These two 5 year
concurrent sentences were completed on December 1, 2015. Dkt.
# 10-5. On December 1, 2015, Petitioner rebilled and began
serving a 3 year sentence for possession of marijuana in a
penal institution, Cleveland County Case No. CF-93-1529. The
judgment in this case indicated that the sentence imposed was
to “run consecutive to any term the defendant is
currently serving.” Dkt. # 10-6 at p. 2. Petitioner
completely discharged this sentence on December 6, 2016 and
was released from prison with no supervision requirements.
Dkt. # 13-1.
filed the instant petition on October 6, 2016 alleging that
he should have begun serving his Cleveland County case on
July 22, 2012, which according to the petition would have
entitled him to release from prison on December 1, 2015.
Petitioner's challenge to the Cleveland County sentence
and how it was to be served apparently stem from his belief
that the CF-93-1529 was to run consecutive to CF-1987-601 and
concurrent with CRF-87-602. The judgment and sentence in
CF-93-1529 are silent as to this sentence running concurrent
with any other sentences.
August 7, 2015, petitioner filed an Application for Amended
Judgment and Sentence Nunc Pro Tunc in the Cleveland County
District Court, State of Oklahoma. In his application,
Petitioner stated that the “negotiated plea included
the term to be served consecutive with CRF-87-601, but
concurrent with CRF-87-602.” Dkt. # 3-3, at p. 1. On
August 20, 2015, the District Court denied relief finding
“the application states no factual or legal basis to
demonstrate that Defendant is entitled to such relief.”
Dkt. # 3-3, at p. 3. Petitioner perfected an appeal to the
Oklahoma Court of Criminal Appeals and on January 26, 2016,
in Case No. MA-2015-806, the Oklahoma appellate court found
no support for petitioner's claim that the judgment and
sentence incorrectly reflected how his sentence was to be
judicial power is limited by the Constitution to actual cases
or controversies. U.S. Const. art. III, § 2. A case
becomes moot when a plaintiff no longer suffers “actual
injury that can be redressed by a favorable judicial
decision.” Iron Arrow Honor Society v.
Heckler, 464 U.S. 67, 70, 104 S.Ct. 373, 375, 78 L.Ed.2d
58 (1983). Even though petitioner is no longer in custody,
the “in custody” requirement of § 2241 is
satisfied because he filed his habeas application while he
was incarcerated. See Spencer v. Kemna, 523 U.S. 1,
7, 118 S.Ct. 978, 983, 140 L.Ed.2d 43 (1998). However, the
more significant question is whether petitioner's
subsequent release from the Oklahoma Department of
Corrections moots his petition since the court is no longer
presented with a case or controversy under Article III of the
United States Constitution. Id.
fact petitioner is no longer in custody does not
automatically moot Petitioner's petition. Riley v.
INS, 310 F.3d 1253 (10th Cir. 2002). This
court's inquiry must become whether petitioner meets one
of the exceptions to the mootness doctrine. The court should
not dismiss a petition as moot if “(1) secondary or
‘collateral' injuries survive after resolution of
the primary injury; (2) the issue is deemed a wrong capable
of repetition yet evading review; (3) the defendant
voluntarily ceases an allegedly illegal practice but is free
to resume it at any time; or (4) it is a properly certified
class action suit.” Riley v. INS, 310 F.3d at
1257 (quoting Chong v. District Director, INS, 264
F.3d 378, 384 (3rd Cir. 2001). Where an
inmate's sentence has expired, some concrete and
continuing injury other than the now-ended incarceration -
some “collateral consequence” of the conviction -
must exist if the suit is to be maintained. Spencer,
523 U.S. at 7. In this case, petitioner is not challenging
the conviction itself. Rather, he solely challenges whether
it should have been served concurrently with two other