United States District Court, N.D. Florida, Tallahassee Division
REPORT AND RECOMMENDATION TO DISMISS § 2241
Charles A. Stampelos United States Magistrate Judge.
about February 21, 2019, Petitioner Tawny Bryce Savage, a
federal prisoner proceeding pro se, filed a petition for writ
of habeas corpus pursuant to 28 U.S.C. § 2241. ECF No.
1. On August 26, 2019, Respondent filed motion to dismiss,
with an exhibit. ECF No. 10. Petitioner has not filed a
reply, although she was given the opportunity to do so.
See ECF No. 8.
matter was referred to the undersigned United States
Magistrate Judge for report and recommendation pursuant to 28
U.S.C. § 636 and Northern District of Florida Local Rule
72.2(B). After careful consideration, the undersigned
concludes the petition is moot and should be dismissed.
September 2, 2014, in the United States District Court for
the Western District of Oklahoma, Petitioner Tawny Bryce
Savage pled guilty to three counts in two different cases:
one count of possessing with intent to distribute
methamphetamine, contrary to 21 U.S.C. § 841(a)(1), and
one count of possessing a firearm as a convicted felon,
contrary to 18 U.S.C. § 922(g)(1), in case number
5:14cr158; and one count of theft of government funds, in
violation of 18 U.S.C. § 641, in case number 5:14cr257.
See Ex. 1 at 1-2. In the first case, the court
sentenced her to two concurrent terms of 78 months in prison,
to run concurrently with a 78-month prison sentence imposed
in the second case. Id. at 2.
time she filed her § 2241 petition, Savage was
incarcerated at the Federal Correctional Institution in
Tallahassee, Florida. See ECF No. 1 at 1, 15. In her
petition, she indicates she challenges her sentence in
5:14cr158, asserting she is currently serving an illegal
sentence due to the erroneous assessment of additional
criminal history points. Id. at 2, 8-13 In its
motion to dismiss, Respondent details the procedural history
of Petitioner's cases. ECF No. 10 at 1-5. Respondent
asserts this case should be dismissed because Petitioner
actually challenges the validity of her sentence, not the
execution thereof, and such challenge is properly brought
pursuant to 28 U.S.C. § 2255, not § 2241, in the
district of conviction. Id. at 6-7. Respondent
further argues the case should be dismissed because of the
collateral waivers Petitioner executed at the time of her
guilty pleas. Id. at 7. Finally, Respondent asserts
Petitioner's challenge lacks merit. Id. at 8-9.
website for the Federal Bureau of Prisons indicates
Petitioner Tawny Bryce Savage, Inmate Register Number
07338-062, was released on October 1, 2019.
Seewww.bop.gov/inmateloc/. Notably, as of the date
of this order, she has not filed a change of address with
an action is moot involves a jurisdictional issue because it
implicates the Article III requirement of a live case or
controversy. Bailey v. Southerland, 821 F.2d 277,
278 (5th Cir. 1987). Upon expiration of a petitioner's
sentence, “some concrete and continuing injury other
than the now-ended incarceration” - some
“collateral consequence” of the conviction - must
exist to maintain the habeas action. Spencer v.
Kemna, 523 U.S. 1, 7 (1998). See, e.g.,
U.S. ex rel. Graham v. U.S. Parole Comm'n, 732
F.2d 849, 850 (11th Cir. 1984) (holding federal
prisoner's habeas petition challenging regulations and
decisions by U.S. Parole Commission was mooted by
prisoner's release as his “ultimate objective in
bringing the action was to obtain parole” and
“[s]ince he has been released on parole in the interim,
we find there no longer is a case or controversy to
litigate” as “[a] favorable decision on the
merits would not entitle Graham to any additional
relief”); Hernandez v. Wainwright, 796 F.2d
389, 390 (11th Cir. 1986) (holding district court properly
dismissed as moot state prisoner's § 2254 petition
alleging unconstitutional miscalculation of gain time
credits, where prisoner was released from custody while
petition was pending and he had attacked only length of
confinement, not underlying conviction).
Petitioner's only objective in bringing this habeas
action was a reduction in her sentence. Because she has since
been released from incarceration, there is no longer a case
or controversy to litigate. Thus, this action is moot and
should be dismissed.
reasons stated above, this § 2241 habeas petition is
moot. Accordingly, the § 2241 petition (ECF No. 1)
should be DISMISSED and Respondent's
motion to dismiss (ECF No. 10) DENIED as
TO THE PARTIES
fourteen (14) days after being served with a copy of this
Report and Recommendation, a party may serve and file
specific written objections to these proposed findings and
recommendations. Fed.R.Civ.P. 72(b)(2). A copy of the
objections shall be served upon all other parties. A party
may respond to another party's objections within fourteen
(14) days after being served with a copy thereof.
Fed.R.Civ.P. 72(b)(2). Any different deadline that may
appear on the electronic docket is for the Court's
internal use only and does not control. If a party fails
to object to the magistrate judge's findings or
recommendations as to any particular claim or issue contained
in a Report and ...