FILED

U.S. COURT OF APPEALS

ELEVENTH CIRCUIT

MAY 22, 2006

THOMAS K. KAHN

CLERK

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT

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No. 05-10864

Argument Calendar

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D. C. Docket No. 03-23189-CV-JAL

EDDIE MILTON GAREY,

Petitioner-Appellant, 

versus 

FEDERAL DETENTION CENTER, MIAMI, 

Richard Stiff Warden,

WILBUR D. OWENS,

U.S. District Court Judge (M.D. GA),

MICHAEL G. THOMPSON,

F.B.I. Agent,

SCOTT C. HUGGINS,

Court appointed counsel,

U.S. MARSHAL’S SERVICE, et al., 

Respondents-Appellees. 

________________________

Appeal from the United States District Court

for the Southern District of Florida

_________________________

 (May 22, 2006)
 Honorable John F. Nangle, United States District Judge for the Eastern District of *

Missouri, sitting by designation.

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Before BIRCH and MARCUS, Circuit Judges, and NANGLE , District Judge. *

PER CURIAM:

Eddie Milton Garey, a federal prisoner, appeals the denial of his habeas

corpus petition. His petition was filed on December 1, 2003 pursuant to 28 U.S.C.

§ 2241 while he was in pretrial detention. Garey was being detained on federal

charges brought in the U.S. District Court for the Middle District of Georgia. He

was charged with making bomb threats in Georgia during September of 2003 in

violation of 18 U.S.C. §§ 513, 844(e), 922(g)(1), 1951, and 2332(a)(2). 

Garey filed the instant “Emergency Petition for Writ of Habeas Corpus”

pursuant to 28 U.S.C. §§ 2241-2244, claiming that the respondents violated: (1)

his Fourth Amendment rights (a) during the investigation that led to his arrest, (b)

in securing the warrant, and (c) in publicizing his arrest; (2) his Fifth and

Fourteenth Amendment rights to procedural and substantive due process when (a)

they secured the warrant for his arrest, (b) they punished him for his refusal to

waive his constitutional rights, (c) they abused him and mistreated him during his

incarceration, and (d) the U.S. District Court for the Middle District of Georgia

issued a ruling that denied him his liberty interest; (3) his Sixth Amendment rights
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to (a) effective assistance of counsel, (b) confrontation of his accusers, and (c) a

speedy trial; and (4) First, Fourth, Ninth, and Fourteenth Amendment rights to (a)

be free from government intrusion into his thoughts and beliefs, (b) petition for

redress of grievances, and (c) be free from forceful mental evaluations and

medication.

Gary’s petition alleged, among other things, that his constitutional right to

be present at a hearing on the government’s motion for a psychiatric examination

had been violated. The government sought psychiatric evaluation of Garey in

order to assist the court in a determination of Garey’s competence to stand trial. 

The district court granted the motion over Garey’s objections and without a

hearing. Garey was transported to the Federal Detention Center in Miami, Florida

for the evaluation. 

The magistrate judge, relying upon Falcon v. United States Bureau of

Prisons, 52 F.3d 137 (7 Cir. 1995), found that Garey was not entitled to habeas th

corpus relief because all of his claims related to the pending criminal charges, and

should have been raised in his criminal case. The district court adopted the

magistrate’s recommendation and dismissed Garey’s petition. Citing Government

of the Virgin Islands v. Bolones, 427 F.2d. 1135, 1136 (1 Cir. 1970), the district st

court noted that “where a defendant is awaiting trial, the appropriate vehicle for
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violations of the defendant’s constitutional rights are pre-trial evidentiary motions,

not habeas petitions.” R72 at 4. The court concluded that an “adequate and

unexhausted” remedy was available in the criminal case, and therefore Garey was

not entitled to habeas corpus relief. R72 at 5. In December 2004, a jury convicted

Garey on all counts. 

On appeal of his §2241 case, Garey argues that the district court erred by

relying upon Falcon, which is distinguishable from his case. Garey argues that

habeas corpus relief is an appropriate remedy despite the fact that his criminal case

was pending, and that relief should be granted on the merits of his petition.

We review de novo the district court’s denial of habeas relief under § 2241. 

Cook v. Wiley, 208 F.3d 1314, 1317 (11 Cir. 2000). However, a case must be th

dismissed as moot if the issues presented are no longer ‘live’ such that the Court

cannot give meaningful relief. Soliman v. U.S. ex rel. INS, 296 F.3d 1237, 1242

(11 Cir. 2002). Therefore, “[i]f events that occur subsequent to the filing of a th

lawsuit or an appeal deprive the court of the ability to give the plaintiff or

appellant meaningful relief, then the case is moot and must be dismissed.” Id. 

As to Garey’s claim which relates to his transfer for psychiatric evaluation,

that claim is now moot. Garey’s transfer for evaluation ceased upon his transfer

back to the Middle District of Georgia for trial and sentencing. Moreover, the
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government states that Garey was credited for time spent in evaluation towards his

final sentence. Because Garey’s transfer ended and he was credited for time spent

in evaluation, this Court cannot provide Garey with meaningful relief in the

context of his § 2241 petition. Unless this case falls within the mootness

exception, it must be dismissed as moot. 

Although there is an exception to the mootness doctrine when the action

being challenged by the lawsuit is capable of repetition yet evading review, this

Court has held that “this exception is narrow, and applies only in exceptional

situations.” Soliman v. U.S. ex rel. INS, 296 F.3d 1237, 1242 (11 Cir. 2002). th

See Weinstein v. Bradford, 423 U.S. 147 (1975) (per curiam). To invoke the

exception, Garey must show that “(1) there [is] a reasonable expectation or a

demonstrated probability that the same controversy will recur involving the same

complaining party, and (2) the challenged action is in its duration too short to be

fully litigated prior to its cessation or expiration.” Id. at 1242-3.

In the current case, there is no “reasonable expectation” or “demonstrated

probability” that the same controversy will recur involving Garey. Although his

criminal case is on direct appeal to this Court, there is neither a reasonable

expectation nor a demonstrated probability that the case will be overturned and the

district court will order another psychological evaluation to determine Garey’s
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competence to stand trial a second time. Appellant has failed to satisfy the first

prong of the exception, and therefore fails to qualify for the mootness exception. 

As to the remainder of Garey’s claims in his § 2241 petition, this Court

affirms the judgment and ruling of the district court that these claims were not

properly brought pursuant to 18 U.S.C. § 2241, but should have been raised in his

pending criminal case.

When a case, or an issue in a case, becomes moot on appeal, the Court of

Appeals must not only dismiss the case, but also vacate the district court's order. 

This practice “clears the path for future relitigation of the issues between the

parties and eliminates a judgment, review of which was prevented through

happenstance.” Soliman, 296 F.3d at 1243 (quoting Atlanta Gas Light Co. v. Fed.

Energy Regulatory Comm'n, 140 F.3d 1392, 1402 (11th Cir.1998)). Accordingly, 

as to Garey’s claims regarding his transfer for psychiatric evaluation, we vacate

the district court’s order for lack of jurisdiction and dismiss Garey’s appeal as

moot. As to all other claims raised in the instant § 2241 petition, we affirm the

judgment of the district court.

AFFIRMED IN PART, VACATED IN PART.