United States District Court, N.D. Florida, Panama City Division
REPORT AND RECOMMENDATION
R. JONES UNITED STATES MAGISTRATE JUDGE
proceeding pro se, initiated this case in early 2017
by filing a petition for writ of habeas corpus under 28
U.S.C. § 2254. (ECF No. 1.) After direction by this
Court, Petitioner filed an amended § 2254 petition,
challenging the forfeiture of gain time he received in
connection with two prisoner disciplinary proceedings, rather
than challenging his underlying conviction. (ECF No. 9.) As
relief, Petitioner requested the restoration of his lost gain
time. (Id. at 15.) Respondent filed a motion to
dismiss in October 2017, arguing that Petitioner failed to
exhaust all available administrative remedies and state court
remedies regarding his claims and that he is procedurally
barred from bringing such claims. (ECF No. 24.) Petitioner
never responded to that motion to dismiss.
was then released from the custody of the Florida Department
of Corrections upon the expiration of his sentence on
December 1, 2017. (ECF No. 27-1.) Following Petitioner's
release, Respondent filed a second motion to dismiss on
December 5, 2017, arguing that Petitioner's petition
should be dismissed as moot. (ECF No. 27.) Petitioner failed
to file a response, and the deadline for doing so has long
since passed. The motion is, therefore, ripe for review. For
the reasons discussed below, the undersigned recommends that
Respondent's motion to dismiss be granted.
motion to dismiss, Respondent asserts that the § 2254
petition-challenging disciplinary reports that resulted in
the loss of gain time and seeking only the restoration of
that lost gain time-is now moot as a result of
Petitioner's release from prison. (ECF No. 27 at 2-5.)
an action is moot involves a jurisdictional issue because it
implicates the Article III requirement of a live case or
controversy.” Lenoir v. Crews, No.
4:12cv157-RH/CAS, 2013 WL 3811187, at *3 (N.D. Fla. July 20,
2013) (citing Bailey v. Southerland, 821 F.2d 277,
278 (5th Cir. 1987)). Once a petitioner's sentence
expires, “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.” Spencer v.
Kemna, 523 U.S. 1, 7 (1988).
petitioner files a § 2254 petition only challenging a
disciplinary report and the forfeiture of gain time, no
collateral consequence exists after the petitioner is
released from prison. Therefore, the petition is moot upon
his release as there is no longer a case or controversy to
litigate. See, e.g., Hernandez v.
Wainwright, 796 F.2d 389, 390 (11th Cir. 1986) (holding
district court properly dismissed as moot state
prisoner's § 2254 petition challenging
miscalculation of gain time credits where prisoner was no
longer in custody); Lenoir, 2013 WL 3811187
(dismissing as moot a § 2254 petition seeking only
restoration of allegedly wrongfully forfeited gain time where
petitioner was released from prison); Schmidt v.
McNeil, No. 5:07cv281/RS/MD, 2010 WL 2351461 (N.D. Fla.
Apr. 30, 2010) (dismissing as moot a § 2254 petition
challenging a disciplinary report and the resulting loss of
gain time because the petitioner was released from prison);
Bango v. Mcdonough, No. 2:05-cv-466/RV/EMT, 2006 WL
3483512 (N.D. Fla. Nov. 29, 2006) (same); Doss v.
Crosby, 357 F.Supp.2d 1334, 1335-36 (N.D. Fla. 2005)
(even if prisoner could show gain time was wrongfully
forfeited, the court could not grant relief).
Petitioner was released from prison based on the expiration
of his sentence. Because his purpose in bringing his §
2254 petition was the restoration of gain time that would
provide for immediate release, he no longer has a case or
controversy to litigate now that he has been released.
See Lenoir, 2013 WL 3811187, at *3; see also
Fields v. Sec'y Dep't of Corr., No.
5:09cv83/RS/EMT, 2009 WL 1456403 (N.D. Fla. May 22, 2009).
Accordingly, the petition is due to be dismissed as moot.
2254 Rule 11(a) provides that “[t]he district court
must issue or deny a certificate of appealability when it
enters a final order adverse to the applicant, ” and if
a certificate is issued “the court must state the
specific issue or issues that satisfy the showing required by
28 U.S.C. § 2253(c)(2).” A timely notice of appeal
must still be filed, even if the court issues a certificate
of appealability. Rule 11(b), Rules Governing Section 2254
undersigned finds no substantial showing of the denial of a
constitutional right. 28 U.S.C. § 2253(c)(2); Slack
v. McDaniel, 529 U.S. 473, 483-84 (2000). Therefore, the
undersigned recommends that the district court deny a
certificate of appealability in its final order.
11(a) also provides: “Before entering the final order,
the court may direct the parties to submit arguments on
whether a certificate should issue.” Thus, if there is
an objection to this recommendation by either party, that
party may bring this argument to the attention of the
district judge in the objections permitted to this report and
it is ...