Demis v. Sniezek

• Decision Date: 09 March 2009
• Docket Number: No. 07-4129.,07-4129.
• Citation: 558 F.3d 508
• Parties: Louis W. DEMIS, Petitioner-Appellant, v. T.R. SNIEZEK, Warden; Harley G. Lappin, Respondents-Appellees.
• Court: U.S. Court of Appeals — Sixth Circuit

558 F.3d 508

Louis W. DEMIS, Petitioner-Appellant, v. T.R. SNIEZEK, Warden; Harley G. Lappin, Respondents-Appellees.

No. 07-4129.

United States Court of Appeals, Sixth Circuit.

Argued: December 3, 2008.

Decided and Filed: March 9, 2009.

ARGUED: D. Timothy Huey, Law Office, Upper Arlington, Ohio, for Appellant. Laura McMullen Ford, Assistant United States Attorney, Cleveland, Ohio, for Appellees. ON BRIEF: Christopher J. Minnillo, Law Office, Columbus, Ohio, for Appellant. Laura McMullen Ford, Assistant United States Attorney, Cleveland, Ohio, for Appellee.

Before BOGGS, Chief Judge; CLAY, Circuit Judge; BERTELSMAN, District Judge.^*

OPINION

CLAY, Circuit Judge.

Petitioner-Appellant, Louis W. Demis ("Demis"), a federal prisoner at the time he filed the instant action, applied to the district court for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, challenging the lawfulness of the Bureau of Prisons' ("BOP") regulations prohibiting prisoner transfer to a community correctional center ("CCC")—now known as residential re-entry centers ("RRC")—until the prisoner has served at least ninety percent of his or her sentence. Specifically, Demis argued that the BOP's regulations, codified at 28 C.F.R. §§ 570.20 and 570.21, are inconsistent with the requisite individualized consideration of the factors regarding prisoner transfer set forth in 18 U.S.C. § 3621(b). Adopting the reasoning of other circuits that previously considered the same issue and invalidated the regulations, a magistrate judge recommended that Demis' petition be granted. The district court, however, determined that Demis' petition was moot because Demis already had been transferred to a CCC while his habeas application was pending.

On September 4, 2007, Demis filed a timely appeal from the district court's dismissal order. Shortly thereafter, on September 28, 2007, Demis' sentence ended and he was released from custody. The government thus urges the Court to dismiss Demis' appeal as moot, arguing that Demis' release from custody ended the capacity of this Court to grant meaningful relief.

For the reasons set forth below, we hereby DISMISS Demis' appeal as moot.

I.

On June 24, 2005, pursuant to a plea agreement with the government, Demis pleaded guilty to conspiracy to commit mail fraud, wire fraud, and bank fraud, as well as two counts of bank fraud, in violation of 18 U.S.C. §§ 371, 1341, 1343, and 1344. Demis was sentenced to twenty-four months imprisonment and three years of supervised release for his two bank fraud convictions, and to twenty-four months imprisonment and five years of supervised release for his conspiracy to commit bank fraud convictions, with these sentences to run concurrently.

On February 2, 2007, Demis filed a petition for a writ of habeas corpus under 28 U.S.C. § 2241 in the United States District Court for the Northern District of Ohio. Demis' petition challenged the BOP's refusal to transfer or consider transferring him from the Federal Correctional Institution at Elkton, Ohio ("FCI Elkton"), to a CCC. The BOP refused to consider Demis' request for transfer based on its regulations permitting consideration of such requests only after a prisoner has served at least ninety percent of his or her sentence. 28 C.F.R. § 570.21.¹ Demis asserted that § 570.21, defined by regulation as the BOP's "categorical exercise of discretion for designating inmates to community confinement," 28 C.F.R. § 570.20, is inconsistent with the requisite individualized consideration of the factors set forth by Congress in 18 U.S.C. § 3621(b). Prior to filing his habeas petition, Demis made administrative requests for relief, which were denied.

Demis' petition named as respondents T.R. Sniezek, warden of FCI Elkton, Harley G. Lappin, Director of the Federal Bureau of Prisons, and an unnamed United States Attorney. Respondents moved to dismiss the petition pursuant to Fed. R.Civ.P. 12(b)(1) and 12(b)(6). The district court referred the case to a magistrate judge. On June 7, 2007, the magistrate judge issued a report recommending that the district court dismiss Director Lappin and the unnamed United States Attorney from the case, but deny the motion in all other respects. The magistrate judge concluded that BOP regulations 28 C.F.R. §§ 570.20 and 570.21 "contradict or ignore the will of Congress" as expressed in 18 U.S.C. §§ 3621 and 3624. That conclusion is consistent with the holdings of other circuits that have addressed precisely the issue raised in Demis' petition, each holding that the BOP's "categorical exercise of discretion" in 28 C.F.R. § 570.21(a) is inconsistent with the individualized determination required under 18 U.S.C. § 3621(b). See Wedelstedt v. Wiley, 477 F.3d 1160 (10th Cir.2007); Levine v. Apker, 455 F.3d 71 (2d Cir.2006); Fults v. Sanders, 442 F.3d 1088, 1092 (8th Cir.2006); Woodall v. Federal Bureau of Prisons, 432 F.3d 235 (3rd Cir.2005).

Before the district court could act on the magistrate judge's recommendation, however, the BOP transferred Demis to a CCC. Therefore, on August 9, 2007, the district court issued an order "dismiss[ing] Petitioner's action without prejudice" on the grounds that the matter was moot. The next day, August 10, 2007, the district court issued another order "dismiss[ing] Plaintiff's complaint in its entirety without prejudice."

Demis filed a timely notice of appeal on September 4, 2007. On September 28, 2007, however, Demis was released from custody.

On October 24, 2007, the government filed a motion with this Court requesting that Demis' appeal be dismissed as moot. Construing the motion to dismiss the appeal as moot as a motion to affirm the district court's order, a motions panel of this Court denied the government's motion on the basis that motions to affirm are specifically prohibited under Rule 27(e)(3) of the Rules of the Sixth Circuit. The appeal thus proceeded to briefing and argument.

II.

The Constitution's case or controversy requirement confines the jurisdiction of the courts to "real and substantial controvers[ies] admitting of specific relief through a decree of a conclusive character...." North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 30 L.Ed.2d 413 (1971) (citation omitted). Accordingly, this Court lacks jurisdiction to consider any case or issue that has "lost its character as a present, live controversy" and thereby becomes moot. Hall v. Beals, 396 U.S. 45, 48, 90 S.Ct. 200, 24 L.Ed.2d 214 (1969). Because the exercise of judicial power under Article III of the Constitution depends on the existence of a live case or controversy, mootness is a jurisdictional question. Lewis v. Cont'l Bank Corp., 494 U.S. 472, 477, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990). This Court reviews jurisdictional issues de novo. United States v. Gabrion, 517 F.3d 839, 844 (6th Cir.2008).

"`Simply stated, a case is moot when the issues presented are no longer `live' or the parties lack a legally cognizable interest in the outcome.'" Int'l Union v. Dana Corp., 697 F.2d 718, 720-21 (6th Cir.1983) (quoting Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969)). "This case-or-controversy requirement subsists through all stages of federal judicial proceedings, trial and appellate.... The parties must continue to have a `personal stake in the outcome' of the lawsuit." Lewis, 494 U.S. at 477-78, 110 S.Ct. 1249. If "events occur during the pendency of a litigation which render the court unable to grant the requested relief," the case becomes moot and thus falls outside our jurisdiction. Abela v. Martin, 309 F.3d 338, 343 (6th Cir.2002) (internal citations and quotation marks omitted).

More specifically, a prisoner's "challenge to the validity of his conviction always satisfies the case-or-controversy requirement, because the incarceration (or the restriction imposed by the terms of the parole) constitutes a concrete injury, caused by the conviction and redressable by invalidation of the conviction." Spencer v. Kemna, 523 U.S. 1, 7, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998). Once a prisoner's sentence has expired, however, "some concrete and continuing injury other than the now-ended incarceration or parole—some `collateral consequence' of the conviction—must exist if the suit is to be maintained." Id.

Thus, to sustain jurisdiction in the present case, "it is not enough that a dispute was alive when [Demis'] habeas corpus petition was filed in the district court. [Demis] must continue to have an actual injury that is capable of being redressed by a favorable judicial decision." Brock v. United Stated Dept. of Justice, 256 Fed. Appx. 748, 750 (6th Cir.2007).

III.

After Demis' requests for transfer to a CCC were denied, Demis sought habeas relief under 28 U.S.C. § 2241, challenging the BOP's regulations prohibiting consideration of his transfer request. At the time Demis filed his application for a writ of habeas corpus, the district court plainly had jurisdiction to consider Demis' claim because Demis was incarcerated at FCI Elkton, and thus he satisfied the "in custody" provision of 28 U.S.C. § 2241(c).

While his petition for relief was pending before the district court, however, Demis was transferred to a CCC. The district court thus issued an order dismissing Demis' habeas application as moot. In addition, after Demis filed his notice of appeal, he was released from custody. The government thus challenges whether this Court has jurisdiction to hear Demis' appeal, contending that the case is moot both because Demis already was transferred to a CCC, as the district court concluded, and because Demis now has "served his imprisonment sentence completely and was released from custody on September 28, 2007." Resp. Br. at 7.

In support of that claim, the government directs the Court to the BOP's Inmate Locator Service. A search of the BOP's Inmate Locator Service indicates that Demis was "RELEASED" from custody on September 28, 2007.²

Under precisely these circumstances...