United States District Court, S.D. Georgia, Waycross Division
ORDER AND MAGISTRATE JUDGE'S REPORT AND
STAN BAKER, UNITED STATES MAGISTRATE JUDGE.
Charles McGill (“McGill”), formerly housed at the
Immigration and Customs Enforcement (“ICE”)
Processing Center in Folkston, Georgia, filed a Petition for
Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241.
(Doc. 1.) McGill neither paid the requisite filing fee nor
moved to proceed in forma pauperis. For the reasons
which follow, I RECOMMEND that the Court
DISMISS as moot McGill's Petition,
DIRECT the Clerk of Court to
CLOSE this case and enter the appropriate
judgment of dismissal, and DENY McGill
in forma pauperis status on appeal.
filed his Petition in the Middle District of Georgia on
September 6, 2017. (Doc. 1.) That court transferred
McGill's Petition to this Court on September 22, 2017, as
McGill was housed at a facility within this District. (Doc.
4.) In his Petition, McGill asserts he is a citizen and
native of Liberia who came to the United States in 1992.
McGill asserts the Immigration and Naturalization Service,
which is now ICE, issued a Notice to Appear dated January
2010 and placed him in deportation proceedings. McGill states
he had been detained beyond a “reasonable period of
time”, which has been determined to presumptively be
six months' time. (Doc. 1, p. 3.) McGill requests release
from custody pursuant to the United States Supreme
Court's decision on Zadvydas v. Davis, 533 U.S.
September 22, 2017, the Clerk of Court advised McGill he had
not paid the requisite filing fee and sent him blank copies
of habeas corpus and in forma pauperis forms at his
last known address. (Doc. 7.) However, this mailing was
returned to the Court with the notation
“released” on the envelope. (Doc. 8.) Thus, the
Court must determine whether McGill's release from
custody at the ICE facility renders his Petition moot and
whether his Petition should be dismissed as a result.
Whether McGill's Petition is Moot
III of the Constitution “extends the jurisdiction of
federal courts to only ‘Cases' and
‘Controversies.'” Strickland v.
Alexander, 772 F.3d 876, 882 (11th Cir. 2014). This
“case-or-controversy restriction imposes” what is
“generally referred to as ‘justiciability'
limitations.” Id. There are “three
strands of justiciability doctrine-standing, ripeness, and
mootness-that go to the heart of the Article III case or
controversy requirement.” Harrell v. The Fla.
Bar, 608 F.3d 1241, 1247 (11th Cir. 2010) (internal
quotation marks and alterations omitted). With regard to the
mootness strand, the United States Supreme Court has made
clear that “a federal court has no authority ‘to
give opinions upon moot questions or abstract propositions,
or to declare principles or rules of law which cannot affect
the matter in issue in the case before it.'”
Church of Scientology of Cal. v. United States, 506
U.S. 9, 12 (1992) (internal citation omitted). Accordingly,
“[a]n issue is moot when it no longer presents a live
controversy with respect to which the court can give
meaningful relief.” Friends of Everglades v. S.
Fla. Water Mgmt. Dist., 570 F.3d 1210, 1216 (11th Cir.
2009) (internal quotation marks omitted). Questions of
justiciability are not answered “simply by looking to
the state of affairs at the time the suit was filed. Rather,
the Supreme Court has made clear that the controversy
‘must be extant at all stages of review, not merely at
the time the complaint is filed.'” Christian
Coal. of Fla., Inc. v. United States, 662 F.3d 1182,
1189-90 (11th Cir. 2011) (quoting Preiser v.
Newkirk, 422 U.S. 395, 401 (1975)).
noted above, McGill has been released from confinement at the
Folkston ICE facility. As McGill only requests his release
from the custody of ICE in his Petition, and it appears he
has been released from ICE's custody, there is no longer
a “live controversy” over which the Court can
give meaningful relief. Friends of Everglades, 570
F.3d at 1216. Accordingly, the Court should DISMISS
as moot McGill's Petition for Writ of Habeas
Leave to Appeal in Forma Pauperis
Court should also deny McGill leave to appeal in forma
pauperis. Though McGill has, of course, not yet filed a
notice of appeal, it would be appropriate to address these
issues in the Court's order of dismissal. Fed. R. App. P.
24(a)(3) (trial court may certify that appeal of party
proceeding in forma pauperis is not taken in good
faith “before or after the notice of appeal is
filed”). An appeal cannot be taken in forma
pauperis if the trial court certifies that the appeal is
not taken in good faith. 28 U.S.C. § 1915(a)(3); Fed. R.
App. P. 24(a)(3). Good faith in this context must be judged
by an objective standard. Busch v. Cty. of Volusia,
189 F.R.D. 687, 691 (M.D. Fla. 1999). A party does not
proceed in good faith when he seeks to advance a frivolous
claim or argument. See Coppedge v. United States,
369 U.S. 438, 445 (1962). A claim or argument is frivolous
when it appears the factual allegations are clearly baseless
or the legal theories are indisputably meritless. Neitzke
v. Williams, 490 U.S. 319, 327 (1989); Carroll v.
Gross, 984 F.2d 392, 393 (11th Cir. 1993). Stated
another way, an in forma pauperis action is
frivolous, and thus, not brought in good faith, if it is
“without arguable merit either in law or fact.”
Napier v. Preslicka, 314 F.3d 528, 531 (11th Cir.
2002); see also Brown v. United States, Nos.
407CV085, 403CR001, 2009 WL 307872, at *1-2 (S.D. Ga. Feb. 9,
the above analysis of McGill's Petition, there are no
non-frivolous issues to raise on appeal, and an appeal would
not be taken in good faith. Thus, the Court should
DENY in forma pauperis status on
on the foregoing, I RECOMMEND that the Court
DISMISS as moot McGill's Petition for
Writ of Habeas Corpus, filed pursuant to 28 U.S.C. §
2241, (doc. 1), DIRECT the Clerk of Court to
CLOSE this case and enter the appropriate