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IN THE UNITED STATES DISTRICT COURT FOR THE

NORTHERN DISTRICT OF FLORIDA

PENSACOLA DIVISION

JEFFERY E. PARRISH,

Petitioner,

vs. Case No. 3:10cv32/MCR/MD

MICHAEL BABCOCK,

Respondent.

REPORT AND RECOMMENDATION

This cause is before the court upon an amended petition for writ of habeas

corpus filed under 28 U.S.C. § 2241 (doc. 5), and respondent’s motion to dismiss the

petition at moot (doc. 16). Petitioner has not responded to the motion, although

given the opportunity to do so (doc. 17). For the reasons that follow, the 1

undersigned recommends that respondent’s motion be granted and the amended

petition dismissed.

DISCUSSION

In this habeas action, petitioner claims the Federal Bureau of Prisons’

(“BOP’s”) failure to transfer him to a Residential Re-Entry Center (“RRC”) to serve

2

1 On July 20, 2010, the court issued an order (doc. 17) directing petitioner to respond to respondent’s

motion. A copy of the order was mailed to petitioner at his address of record, FPC Pensacola;

however, it was returned as undeliverable on July 27, 2010, marked “Transferred or Released;

Forwarding Order Expired.” (Doc. 18). A copy of the order was re-mailed to petitioner at the address

provided on the Federal Bureau of Prisons’ website: CCM Montgomery, Community Corrections

Office, Maxwell AFB, Bldg. 1209, Montgomery, AL 36112. (Doc. 18). That mail was not returned.

Nonetheless, petitioner has not responded to the July 20, 2010 order.

2 An RRC is a correctional facility. Prior to March 31, 2006, RRCs were referred to as Community

Corrections Centers (CCCs). They are commonly known as halfway houses.
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the final twelve months of his imprisonment (from October 23, 2009 to October 23,

2010) contravenes 18 U.S.C. § 3624(c). (Doc. 5, p. 3; Doc. 6, p. 1). As relief, he seeks

“[to] be immediately transferred out of Respondent’s custody and into pre-release,

community confinement.” He also requests monetary damages “in the amount of

$2,500 per day for each day of deliberate, wrongful incarceration.” (Doc. 5, p. 6). 

Respondent requests dismissal of the petition as moot, arguing that on May 24,

2010, petitioner was transferred to an RRC for the remainder of his sentence. (Doc.

16, Attach. 1, Dubin Aff.). Respondent additionally indicates, and information on the

BOP’s website confirms, that petitioner was released from BOP custody on October

22, 2010. (Id., see also http://www.bop.gov).

Statutory and Regulatory Framework

Previously, 18 U.S.C. § 3624(c) directed that the BOP:

shall, to the extent practicable, assure that a prisoner serving a term of

imprisonment spends a reasonable part, not to exceed six months, of

the last 10 per centum of the term to be served under conditions that

will afford the prisoner a reasonable opportunity to adjust and prepare

for the prisoner's re-entry into the community. The authority provided

by this subsection may be used to place a prisoner in home

confinement. The United States Probation System shall, to the extent

practicable, offer assistance to a prisoner during such pre-release

custody.

18 U.S.C. § 3624(c), amended, Pub.L. No. 110-199, Title II, § 251(a), 122 Stat. 657

(2008). The Second Chance Act of 2007, enacted on April 9, 2008, altered the BOP’s

authority in making RRC placement decisions under 18 U.S.C. § 3624(c). That

section now provides:

(1) In general.-The Director of the Bureau of Prisons shall, to the

extent practicable, ensure that a prisoner serving a term of

imprisonment spends a portion of the final months of that term (not to

exceed 12 months), under conditions that will afford that prisoner a

reasonable opportunity to adjust to and prepare for the reentry of that

prisoner into the community. Such conditions may include a

community correctional facility.

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(2) Home confinement authority.-The authority under this

subsection may be used to place a prisoner in home confinement for

the shorter of 10 percent of the term of imprisonment of that prisoner

or 6 months.

(3) Assistance.-The United States Probation System shall, to the

extent practicable, offer assistance to a prisoner during prerelease

custody under this subsection.

(4) No limitations.-Nothing in this subsection shall be construed

to limit or restrict the authority of the Director of the Bureau of Prisons

under section 3621.

18 U.S.C. § 3624(c)(1)-(4). The Act also amended § 3624(c) to require:

(6) Issuance of regulations.-The Director of the Bureau of Prisons

shall issue regulations pursuant to this subsection not later than 90

days after the date of the enactment of the Second Chance Act of 2007,

which shall ensure that placement in a community correctional facility

by the Bureau of Prisons is-

(A) conducted in a manner consistent with section 3621(b) of 3

this title;

 (B) determined on an individual basis; and

(C) of sufficient duration to provide the greatest likelihood of

successful reintegration into the community.

18 U.S.C. § 3624(c)(6) (footnote added).

The BOP amended its regulations on October 21, 2008, to provide for

placement in an RRC for up to twelve (12) months. See 28 C.F.R. § 570.21; 73 Fed.

Reg. 62440, 62443 (Oct. 21, 2008). Section 570.21 now provides, in pertinent part:

(a) Community confinement. Inmates may be designated to

community confinement as a condition of pre-release custody and

3 Under § 3621(b), the BOP may designate that a prisoner be housed in a facility that it determines is

“appropriate and suitable, considering,” among other factors, “(1) the resources of the facility

contemplated; (2) the nature and circumstances of the offense; (3) the history and characteristics of

the prisoner; (4) any statement by the court that imposed the sentence . . . ; and (5) any pertinent

policy statement issued by the Sentencing Commission.” 18 U.S.C. § 3621(b)(1)-(5).

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programming during the final months of the inmate’s term of

imprisonment, not to exceed twelve months.

(b) Home detention. Inmates may be designated to home

detention as a condition of pre-release custody and programming

during the final months of the inmate’s term of imprisonment, not to

exceed the shorter of ten percent of the inmate’s term of imprisonment

or six months.

28 C.F.R. § 570.21.

It is petitioner’s contention that the BOP failed to follow its own directives and

the statutory requirements of the Second Chance Act when it failed to transfer him

to an RRC on October 23, 2009. (Doc. 6).

Mootness

Under Article III of the Constitution, a federal court may adjudicate “only

actual, ongoing cases or controversies.” Lewis v. Continental Bank Corp., 494 U.S.

472, 477, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990). The case or controversy

requirement continues through all stages of federal judicial proceedings, and

requires that parties have a personal stake in the outcome. Lewis, 494 U.S. at

477-478, 110 S.Ct. 1249. “This means that, throughout the litigation, the plaintiff

‘must have suffered, or be threatened with, an actual injury traceable to the

defendant and likely to be redressed by a favorable judicial decision.’” Spencer v.

Kemna, 523 U.S. 1, 7, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998) (quoting Lewis, 494 U.S.

at 477, 110 S.Ct. 1249). A federal court lacks the power to decide questions that

cannot affect the rights of litigants before it. Powell v. McCormack, 395 U.S. 486, 496

(1969) (“[A] claim is moot when the issues presented are no longer ‘live’ or the

parties lack a legally cognizable interest in the outcome.”). When a party “has

already received the relief that he is seeking from this Court, . . . the issue is no

longer live” and the case is moot. United States v. Beltran-Gabito, 280 F. Appx. 861,

863 (11 Cir. 2008) (citing 31 Foster Children v. Bush, 329 F.3d 1255, 1263 (11 Cir. th th

2003)). 

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In the habeas context, 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, 523 U.S. at 7, 118 S.Ct. 978. Once a sentence has expired, however, some

continuing injury, also referred to as a “collateral consequence,” must exist for the

action to continue. Id. The Supreme Court has previously been willing to presume

that such collateral consequences remain after the expiration of a petitioner’s

sentence where it is the legality of the conviction that is challenged. Cafaras v.

LaVallee, 391 U.S. 234, 237-238, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968); Sibron v. New

York, 392 U.S. 40, 55, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968). However, where a

petitioner is challenging only the legality of his sentence, rather than the underlying

conviction itself, this presumption no longer applies. Lane v. Williams, 455 U.S. 624,

632, 102 S.Ct. 1322, 71 L.Ed.2d 508 (1982);4 Spencer, 523 U.S. at 14.5 Release from

custody renders a habeas action moot unless the petitioner can show the existence

of some collateral consequences arising upon the expiration of his sentence. 

Spencer, 523 U.S. at 14.

Here, petitioner does not challenge the validity of his conviction. He 

challenges only the BOP’s execution of the incarceration portion of his sentence –

the procedures used to determine what portion of his incarceration should be spent

at an RRC. As relief, petitioner requests “[to] be immediately transferred out of

Respondent’s custody and into pre-release, community confinement.” (Doc. 5, p.

4 In Lane v. Williams, 455 U.S. 624, 102 S.Ct. 1322, 71 L.Ed.2d 508 (1982), the Court declined to extend

the presumption of collateral consequences in the context of a challenge to a mandatory parole

violator term when, during the pendency of the litigation, the term had expired. Id. at 632-33, 102 S.Ct.

1322.

5 In Spencer, the Court “decline[d] to presume that collateral consequences adequate to meet Article

III’s injury-in-fact requirement resulted from petitioner’s parole revocation,” Spencer, 523 U.S. at 14,

118 S.Ct. 978, once that term had expired. As in Lane, the fact that the parolee was not challenging

the validity of his conviction factored heavily in the decision not to presume collateral consequences.

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6). But the record establishes that during the pendency of this action, petitioner was

released to an RRC and eventually released from the incarceration portion of his

sentence. Therefore, petitioner presentlyhas no interest in the procedures followed

by the BOP in considering how much of his sentence should be served at an RRC. 

Moreover, this court can no longer provide him the relief he seeks – immediate

placement at an RRC. Accordingly, petitioner’s habeas claims must be dismissed

as moot. See, e.g., Demis v. Sniezek, 558 F.3d 508 (6 Cir. 2009) (holding that § 2241

th

petition challenging the BOP’s failure to transfer the petitioner to an RRC was

rendered moot bythe petitioner’s placement in an RRC and subsequent release from

custody to a term of supervised release; “Because Demis already was transferred

to a CCC and now has been released from custody, no actual injury remains that the

Court could redress with a favorable decision in this appeal. We therefore must

dismiss Demis’ appeal as moot.”); Miller v. Whitehead, 527 F.3d 752, 756 (8 Cir. th

2008) (dismissing § 2241 appeal as moot because inmates had received the

requested relief of placement in an RRC); Muniz v. Sabol, 517 F.3d 29, 34 (1 Cir. st

2008) (federal prisoner’s § 2241 challenging BOP’s denial of placement in an RRC

was mooted by petitioner’s release from custody); see also Walker v. Sanders, No.

09-56380, 2010 WL 2640358 (9 Cir. July 1, 2010) (affirming district court’s dismissal th

of § 2241 petition as moot, where petition challenged BOP’s determination

concerning RRC placement and sought immediate transfer to an RRC, and petitioner

was placed at an RRC during pendency of the proceeding); Laor v. Federal Bureau

of Prisons, 340 Fed. Appx. 771 (3 Cir. Aug. 19, 2009) (holding that federal prisoner’s rd

release to RRC rendered moot § 2241 petition challenging BOP’s pre-release

custody policies and seeking placement in pre-release custody; prisoner

demonstrated no concrete and continuing injury or collateral consequence that

remained after placement in an RRC); McKinney-Bey v. Hawk-Sawyer, No. 03-6455,

69 Fed. Appx. 113 (4 Cir. May 29, 2003) (affirming dismissal of § 2241 petition as th

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moot, where petitioner sought immediate transfer from prison to half-way house,

and petitioner received transfer prior to consideration by Court of Appeals).6

Monetary Damages

The respondent’s motion does not address petitioner’s request for monetary

relief. Nonetheless, petitioner’s money damages claim also requires dismissal, as

habeas corpus cannot be used to obtain money damages. See Preiser v Rodriguez,

411 U.S. 475, 494, 93 S.Ct. 1827, 1838, 36 L.Ed.2d 439 (1973) (dicta) (“In the case of

a damages claim, habeas corpus is not an appropriate or available federal remedy.”);

see Nelson v. Campbell, 541 U.S. 637, 646, 124 S.Ct. 2117, 2124, 158 L.Ed.2d 924

(2004) (noting that “damages are not an available habeas remedy”); see also Preiser,

411 U.S. at 484, 93 S.Ct. 1833 (“It is clear . . . that the essence of habeas corpus is

an attack by a person in custody upon the legality of that custody, and that the

traditional function of the writ is to secure release from illegal custody.”). An action

for money damages is properly pursued by way of a civil rights action.

CONCLUSION

Petitioner’s main objective in bringing this habeas action was pre-release

transfer to an RCC. Since petitioner was released to an RRC and has now been

released from incarceration, there is no longer a case or controversy to litigate.

6 See also, e.g., Swims v. Hickey, No. 2:08cv112, 2009 WL 2341433 (S.D. Ga. July 29, 2009) (dismissing

§ 2241 petition as moot where petitioner sought relief in the form of placement into an RRC and a six

month reduction to enter the RRC – “Because Swims was released on February 27, 2009, there is no

longer a live case or controversy to be litigated in this Court.”); Green v. Grayer, No. 1:09cv473, 2010

WL 398112 (N.D. Ga. Jan. 25, 2010) (dismissing § 2241 petition as moot, where petitioner sought an

order directing the BOP to consider him in good faith for placement in an RRC for six months and

home confinement for six months, and during pendency of proceeding petitioner was transferred to

an RRC); Walton v. Smith, No. 1:09cv1285, 2010 WL 2836320 (C.D. Ill. July 15, 2010) (holding that it

appeared § 2241 petition claiming denial of due process and equal protection by the BOP’s failure to

place prisoner in an RRC for the last twelve months of his sentence was mooted by prisoner’s release

to an RRC); Hestand v. Zych, No. 5:08cv14207, 2010 WL 1948629 (E.D. Mich. May 13, 2010) (dismissing

§ 2241 petition as moot, where petitioner (who had been sentenced to a term of incarceration followed

by supervised release) challenged the BOP’s determination regarding the time for which he was

eligible for RRC placement; “Because Petitioner has been . . . placed [in an RRC], there is no further

relief that the Court may provide him.”).

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Therefore his habeas claims are moot. His damages claims are not cognizable in

this habeas corpus action.

Accordingly it is respectfully RECOMMENDED:

1. That respondent’s motion to dismiss (doc. 16) be GRANTED.

2. That petitioner’s habeas claims be DISMISSED as moot. 

3. That petitioner’s money damages claim be DISMISSED without prejudice.

4. That the Clerk be directed to close the file.

At Pensacola, Florida this 9 day of November, 2010. th

 /s/ Miles Davis

MILES DAVIS

UNITED STATES MAGISTRATE JUDGE

NOTICE TO THE PARTIES

Any objections to these proposed findings and recommendations must be

filed within fourteen days after being served a copy hereof. Any different deadline

that may appear on the electronic docket is for the court’s internal use only, and

does not control. A copy of any objections shall be served upon any other parties. 

Failure to object may limit the scope of appellate review of factual findings. See 28

U.S.C. § 636; United States v. Roberts, 858 F.2d 698, 701 (11 Cir. 1988). th

Case No: 3:10cv32/MCR/MD