United States District Court, W.D. Oklahoma
REPORT AND RECOMMENDATION
BERNARD M. JONES UNITED STATES MAGISTRATE JUDGE
a federal prisoner appearing pro se, brings this action under
28 U.S.C. § 2241 alleging the Federal Bureau of Prisons
(BOP) failed to grant him jail credit “from 11/21/2014
to 12/10/2014.” Petition (Pet.) at 6-7 [Doc. No. 1];
see also Memorandum (Mem.) [Doc. No. 2]. United
States District Judge Stephen P. Friot has referred the
matter for initial proceedings consistent with 28 U.S.C.
§ 636(b)(1)(B) and (C). Respondent filed his second
motion to dismiss (Resp.'s Mot.), [Doc. No. 15],
Petitioner did not respond. Then, while the action was
pending, Petitioner was released from confinement. For the
reasons set forth below, it is recommended that the Court
DISMISS Petitioner's § 2241 Petition moot, or,
alternatively, GRANT Respondent's motion to dismiss.
Background and Petitioner's Claim
prior Report and Recommendation, the Court detailed the
relevant background as illustrated in the Petition and
Respondent's first motion to dismiss. [Doc. No. 9].
Respondent did not include the same arguments and exhibits in
the second motion to dismiss and thus the Court relies on its
prior findings. To that end, the Court restates:
Police officers in Elkhart, Indiana arrested Petitioner on
November 17, 2014. Then, on November 21, 2014, U.S.
Immigration and Customs Enforcement (ICE) took Petitioner
into custody. On December 10, 2014, federal officials
indicted Petitioner on drug-related charges, and ICE
officials transferred Petitioner's custody to the United
States Marshals Service. Petitioner was convicted in federal
court on July 16, 2015, and BOP officials credited his
federal sentence with time spent in custody from November 17,
2014 to November 21, 2014, and December 10, 2014 to July 15,
BOP officials did not credit Petitioner for the time he spent
in ICE custody - November 22, 2014 to December 9, 2014.
See Id. at 4. Petitioner believes he is entitled to
Id. at 2 (citations omitted).
Court judicially notices that Petitioner was released from
confinement on April 12, 2019.
III, Section 2 of the United States Constitution extends the
judicial power only to ‘Cases' or
‘Controversies.'” Robey v. Shapiro,
Marianos & Cejda, L.L.C., 434 F.3d 1208, 1210 (10th
Cir. 2006) (citation omitted). And, “[t]he power to
grant a writ of habeas corpus under [28 U.S.C.] § 2241
is dependent on the prisoner being in
‘custody.'” Crawford v. Booker, No.
99-3121, 2000 WL 1179782 at * 1 (10th Cir. Aug. 21, 2000)
(citing § 2241(c)). Here, Petitioner seeks
additional credits for time served in ICE detention, which
would result in a shortened sentence. See Pet. at 7.
But since Petitioner has been released from that sentence,
the alleged calculation errors “cannot be
undone.” Spencer v. Kemna, 523 U.S. 1, 8
(1998) (finding petitioner's habeas petition moot where
the incarceration “that  occurred as a result [of the
alleged constitutional violation] is now over, and cannot be
undone”); see also Craddock v. Farris,
CIV-14-0245-F, 2014 WL 3346599, *1-2 (W.D. Okla. July 8,
2014) (unpublished district court order) (adopting magistrate
judge's finding that petitioner's § 2241
petition, wherein he alleged officials had failed to credit
his sentence with time served in county jail, became moot
when petitioner was released from confinement”).
Accordingly, Petitioner's Petition should be dismissed as
Respondent's Motion to Dismiss
the Court may grant Respondent's motion to
Standard for Dismissal
moves for dismissal based on Petitioner's failure to
exhaust his administrative remedies but does not articulate
under what provision. See Resp.'s Mot. at 1.
Based on the argument presented, Fed.R.Civ.P. 12(b)(6) is the
logical choice. See, e.g. Aguilera v. Kirkpatrick,
241 F.3d 1286, 1289-90 (10th Cir. 2001) (discussing the
appropriateness of a Rule 12(b)(6) dismissal in proceedings
arising under § 2241). In ruling on such a motion, the
Court's function “‘is not to weigh potential
evidence that the parties might present at trial, but to
assess whether the [petition] alone is legally sufficient to
state a claim for which relief may be granted.'”
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