## United States Court of Appeals FOR THE EIGHTH CIRCUIT

_____________ No. 97-3744

_____________ Craig O. Copley, *
* Appellant, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri. P. W. Keohane, Warden, United States * Medical Center for Federal Prisoners, *
* Appellee. *

_____________ Submitted: May 12, 1998 Filed: July 23, 1998

_____________ Before BOWMAN, Chief Judge, HEANEY, and HANSEN, Circuit Judges.

_____________ BOWMAN, Chief Judge.

Craig O. Copley appeals f

rom the judgment of the District Court dismissing his petition for a writ of habeas corpus. We dismiss the appeal.
Copley originally was charged in 1988 in the United States District Court for the North ern District of New York with mailing threatening communications to an d threaten ing the life of the President. Copley was committed to the United State s Medical Center for Federal Prisoners (Federal Medical Center or FMC) in Springfield,The Fourth Circuit eventually dismissed the appeal as mo ot because of Copley's 1 subsequent conditional release, detailed infra

. See United States v. Copley , No. 92

- 6464, 1993 WL 134612 (4th Cir. Apr. 29, 1993) (per curiam) (unpublished).
-2- Missouri, for an evaluation o f his competence. The staff there found him incompetent to stand trial, and he remained at t he FMC in Springfield until May 1989 when he was determined to be competent to stand trial. Before he could be brought to trial , ho wever, the government sought a second mental evaluation, for which Copley wa s sent to the Federal Medical Center in Butner, North Carolina.
In November, the warden of the FMC in Butner reported to the court th at Copley was competent to stand trial, b ut that he was suffering from a mental disease or defect at the time of the alleged cri mes. The government sought civil commitment of Copley under 18 U.S.C. § 4246 in the District Court for the Eas tern District of North Carolina, andmoved to dismiss the pending charges in the Northern District of New York. In March 1990, the District Court for the Northern District of New York dismissed th e criminal charges against Copley "solely for reasons related to [his] medical condition," 18 U.S. C. § 4246(a), and in June 1990 the District Court for the Eastern District o f North Carolina civill y committed Copley to the custody of the United States Attorney General. Co pley appealed and the Fourth Circuit Court of Appeals affirmed. Se e United States v. Copley , 935 F.2d 669 (4th Cir. 1991).

Within a few months after the § 4246hearing, Copley was returned to the FMC in Springfield for treatment. He sought to be discharged from federal custody, filing hi s motion in the Eastern District of North Carolina. The motion was denied, an d Copley app ealed. Before the appeal was decided, the warden of the FMC i n 1 Springfield

filed a certificate of discharge with the District Court for the Easter n District of North Carolina and the court condition ally released Copley. See 18 U.S.C. § 4246(e)(2). Soon after, Copley was in trouble in California, where he was residing, for violating the conditions of his release, and also had run afoul of authorities in NewThe court noted that a habeas petition Copley filed in the Western District o f 2 Missouri recently had been dismissed without prejudice in May 1996.
-3- York for making threatening telephone calls to his former wife there. The district court in North Car olina ordered his arrest and recommended his return to the FMC i n Sprin gfield. The government then moved to transfer those proceedings from North Carolina to the United States District Court for the Western District of Missouri, and that motion was granted. The distric t court in Missouri ordered revocation of Copley's conditional release, and we vacated and remanded for retransfer of the case to North Carolina. See United States v. Copley , 25 F.3d 660, 662 (8th Cir. 1994). About the

same ti me (two days later), the Fourth Circuit dismissed an original habeas corpu s petitionCopley had filed with that court. The court dismissed the petition because it "ordinarily does not entertain original habeas corpus petitions" and "because Copley's custodian is in Missouri." In re Copley , No. 94-8016, 1994 WL 235335, at *1 (4th Cir. June 2, 1994) (per curiam) (unpublished). The court said that "Copley's remedy would be to file a [28 U.S.C.] § 2241 action in the district where his custodian is located." Id.

In March 1995, the district court in North Carolina revoked Copley's conditional release, and the Fourth Circuit affirmed in January 1996. In July 19 96, the district court in North Carolina dismissed the petition Copley filed with that court under 28 U.S.C. § 2 241 for lack of jurisdiction. The court said: "Although this court does not hav e 2 jur isdictionto entertain Petitioner's habeas corpus petition, it does retain jurisdictio n over the continuing validity of Petitioner' s commitment." Copley v. Kechane [sic], No. 5:96-HC-523-BR(3), order at 2 (E.D.N.C. Jul y 22, 1996). In August of the same year, Copley was conditionally released again, but the re lease was revoked in February 1997 becau se Copley once more had violated the conditions of his release. In Septembe r 1997, the United States District Court for the Nor thern District of New York construed papers Copley filed with that court as a habeas petition and-4-

denied it for lack of jurisdict ion, among other reasons, as Copley was in custody, once again, at the FMC in Springfield.

We fin ally arrive at the procedural history of the present case, a 28 U.S.C

. § 2241 h abeas petition filed with the United States District Court for the Wester n District of Missouri in May 1997. In August, the court dismissed the petition without prejudice, accepting the recommendation of the magistrate judge to whom the case had been referred. We granted a certificate of appealability on two issues: (1) the validity of the court's h olding that Copley was required to exhaust the administrative remedies of the Bureau of Prisons before seeking habeas relief, and (2) whether Copley' s pleadings alleging that he is entitled to dis charge because he is not presently dangerous could survive a motion to dismiss.
On May 12, 1998, we heard oral argument in the case and asked the government to furnish us with information regarding the status of the government's efforts to place Copley in an appropriate state facility. Pursuant to that request, the government ha s provided us with a co py of an order of conditional release issued by the District Court f o r the Eastern District of North Carolina on May 19, 1998. According to that order, Copley was to be released to a s pecified care center in Lake Charles, Louisiana, under the superv ision of the United States Probation Office for the Western District o f Louisiana. We are informed by the government that the order was implement ed on June 8, 1998, and that Copley now resides in the care center in Louisiana.
Copley thus is no longer in the custody of P.W. Keohane, the warden of the FMC in Spr ingfield and the respondent here. He is under the supervision of a federa l probati onoffice in Louisiana, and the federal court in North Carolina has retaine d jurisdiction over his civil commitment. Copley's release is not unconditional and could be revoked at any time by the court in North Carolina. But at this time Copley is not in the custody of anyone

over whom we have jurisdiction, so there is no entity that we can order to effect Copley's release should the writ issue. The case thus is moot andThe parties refer to responde nt in their case caption as Keohane "et al." but we 3 have been unable to locate a pleading wherein anyone other than Keohane is named as respondent. The docket sheet in this Court shows Keohane as the sole respondent.
-5- we wil l not consider Copley's appeal. See Jones v. Cunningham , 371 U.S. 236, 24 1 (1963) ("[W]hen the petitioner was placed on parole, his cause against th e Superintendent of the Virginia State Penitentiary became moot because th e superintendent's custody had come to an end, as much as if he had resigned his position with the State." ); United States ex rel. Innes v. Crystal , 319 U.S. 755 (1943) (denying certiorari "on the ground that the cause is moot, it appearing that petitioner no longer is in respondent's custody").

It is true that, if a district court has proper jurisdiction when a habeas petition is filed, a s is the case here, a subsequent transfer of the prisoner will not defeat habea s jurisdiction, but only "solong as an appropriate respondent with custody remain[s]" in the district. Jones , 371 U.S. at 243-44 (citing Ex parte Endo , 323 U.S. 283, 304-0 7 (1944)); see also Braden v. 30th Judicial Circuit Court of Kentucky , 410 U.S. 484, 495 (1973). But no respondent other than Keohane is na med and, as we have said, Copley 3 is no longer in the custody of Keohane. We realize that Copley has been on conditional release before and has not been able to maintain t hat status, and so it is possible that he willbe returned to the custody of the warden at the FMC in Springfield in the future. Still, we do not think this is a case th at, although moot, can be considered by the Court on the theory that it is capable of repetition yet evading review. This "doctrine applies only in exceptional situations." Spencer v. Kemna , 118 S. Ct. 978, 988 (1998) (quoting City of Los Angeles v. Lyons , 461 U.S. 95, 109 (1983)). Notwithstanding his history, Copley cannot demonstrate that there is a "reasonable likelihood," id. , that hi s conditional rel ease will be revoked and, if it is revoked, that he will be returned to the custody of the warden at the FMC in Springfield.-6-

Th e appeal is dismissed as moot. The District Court's order and judgment ar e
vac ated and the case is remanded with instructions to dismiss the petition. Copley' s motion to expedite the appeal is denied as moot.
A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.