2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

10-6-2009

Damian Marine v. Francisco Quintana

Precedential or Non-Precedential: Non-Precedential

Docket No. 09-2348

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Recommended Citation

"Damian Marine v. Francisco Quintana" (2009). 2009 Decisions. Paper 504.

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DLD-293 NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________

No. 09-2348

___________

DAMIAN MARINE,

Appellant

v.

FRANCISCO J. QUINTANA, FCI MCKEAN

____________________________________

On Appeal from the United States District Court

for the Western District of Pennsylvania 

(D.C. Civil No. 08-00333)

District Judge: Honorable Sean J. McLaughlin

____________________________________

Submitted for Possible Summary Action Pursuant to 

Third Circuit LAR 27.4 and I.O.P. 10.6

August 20, 2009

Before: BARRY, AMBRO and SMITH, Circuit Judges

(Opinion filed: October 6, 2009)

_________

OPINION

_________

PER CURIAM

At the time he filed his petition for writ of habeas corpus pursuant to 28 U.S.C. §
2

2241, Damian Marine was incarcerated at FCI-McKean in Pennsylvania. Marine had

been transferred to that facility from a halfway house in Brooklyn, New York, following

an adverse disciplinary hearing decision in which he was adjudicated guilty of failing to

submit a pay stub from his place of employment. The disciplinary hearing also resulted in

both a rescheduling of his provisional release date and a loss of thirteen days good time

credits. 

In his habeas petition, Marine challenged the disciplinary proceeding on due

process grounds and demanded expungement of the relevant incident report,

compensatory damages for emotional distress, termination of his 3-year term of

supervised release, and immediate release from custody. The latter demand was attached

to Marine’s claim that had his provisional release date not been pushed back as a result of

the disciplinary decision, he would no longer be in custody. 

In an exhaustive report and recommendation, the Magistrate Judge first determined

that Marine’s successful administrative appeal had rendered moot his claim for

expungement of the incident report. The Magistrate Judge next determined that Marine

had failed to exhaust his claim regarding the provisional release date, and that in any

event the claim lacked merit. The Magistrate Judge also determined that only the

sentencing court, the District Court for the Southern District of Florida, could modify

Marine’s term of supervised release, and that Marine’s claim for compensatory damages

based on emotional distress was precluded in a habeas proceeding by Preiser v.
3

Rodriguez, 411 U.S. 475 (1973). The District Court adopted the Magistrate Judge’s

recommendation that the habeas petition be denied. Marine appealed, and the

Government filed a motion for summary affirmance. 

We have jurisdiction over the appeal pursuant to 28 U.S.C. § 1291 and 28 U.S.C. §

2253(a). A certificate of appealability is not required to appeal from the denial of

Marine’s § 2241 petition. See Burkey v. Marberry, 556 F.3d 142, 146 (3d Cir. 2009). 

We exercise plenary review over the District Court’s legal conclusions, and review its

factual findings for clear error. See Ruggiano v. Reish, 307 F.3d 121, 126 (3d Cir. 2002). 

Summary affirmance is proper when “it clearly appears that no substantial question is

presented or that subsequent precedent or a change in circumstances warrants such

action.” Third Circuit I.O.P. 10.6.

We agree with the Government that events subsequent to his filing of the habeas

petition have rendered moot Marine’s primary requests for relief. See Burns v. Pa. Dep’t

of Corr., 544 F.3d 279, 283 (3d Cir. 2008). Specifically, his incident report was

expunged, his good time credits were restored, and he is no longer in custody. Moreover,

Marine’s claims concerning his term of supervised release and his alleged emotional

distress lack merit for substantially the reasons given in the Magistrate’s report, and they

do not present a “substantial question.” 

Accordingly, we grant the Government’s motion for summary affirmance and will

affirm the judgment of the District Court.