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Perez-Romero v. Warden, GPCF/BOP, United States

United States District Court, W.D. Oklahoma

April 15, 2019

PEREZ-ROMERO, EDUARDO, Petitioner,
v.
WARDEN, GPCF/BOP, UNITED STATES, Respondent.

          REPORT AND RECOMMENDATION

          BERNARD M. JONES UNITED STATES MAGISTRATE JUDGE

         Petitioner, 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], [1] and 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.

         I. Background and Petitioner's Claim

         In a 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, 2015.
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 such credit.

Id. at 2 (citations omitted).[2]

         The Court judicially notices that Petitioner was released from confinement on April 12, 2019.[3]

         II. Mootness

         “‘Article 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 moot.

         III. Respondent's Motion to Dismiss

         Alternatively, the Court may grant Respondent's motion to dismiss.[4]

         A. Standard for Dismissal

         Respondent 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.'” Brokers' Choice of Am., Inc. v. NBC Universal, Inc., 757 F.3d 1125, 1135-36 (10th Cir. ...


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