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Marie v. Johns

United States District Court, S.D. Georgia, Waycross Division

November 12, 2019

NGONO ANDRE MARIE, Petitioner,
v.
T. JOHNS, Respondent.

          ORDER AND MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

          BENJAMIN W. CHEESBRO UNITED STATES MAGISTRATE JUDGE

         Petitioner Ngono Marie (“Marie”), who is housed at the Folkston Immigration and Customs Enforcement (“ICE”) Processing Center in Folkston, Georgia, filed a 28 U.S.C. § 2241 Petition for Writ of Habeas Corpus while he was housed at D. Ray James Correctional Facility in Folkston, Georgia. Doc. 1. Marie also filed a Motion for Award of Additional Credit. Doc. 7. Respondent filed a Motion to Dismiss, and Marie filed a Response. Docs. 10, 12. Respondent filed a Reply. Doc. 13. For the reasons which follow, I RECOMMEND the Court GRANT Respondent's Motion to Dismiss, DENY as moot Marie's Petition, and DENY as moot Marie's Motion. I also RECOMMEND the Court DIRECT the Clerk of Court to CLOSE this case and enter the appropriate judgment of dismissal and DENY Marie in forma pauperis status on appeal.

         BACKGROUND

         Marie filed his Petition on March 11, 2019. Doc. 1. In his Petition, Marie contends 54 days' good conduct time was “unlawfully forfeited” stemming from disciplinary proceedings while he was housed at the Metropolitan Detention Center in Brooklyn, New York. Id. at 1, 3. As a result, Marie asserts he has a projected release date of November 28, 2019, which exceeds his statutory satisfaction date of October 12, 2019. Id. at 2. Marie asks that the 54 days of forfeited time be restored and that this Court declare his filing a habeas petition does not foreclose his civil claims for personal injury. Id. at 4. Marie also filed a Motion requesting to have an additional seven days' good conduct time credited against his federal sentence for each year he was sentenced, for a total of 28 additional days, under the First Step Act. Doc. 7.

         Respondent filed a Motion to Dismiss, claiming the Bureau of Prisons (“BOP”) has expunged Marie's record and restored Marie's good conduct time, resulting in his release date being scheduled for October 12, 2019. Doc. 10 at 1; Doc. 10-1 at 3, 21. Thus, Respondent asserts Marie's Petition is moot and should be dismissed because the BOP has granted his requested relief. Doc. 1 at 2-3. In addition, Respondent contends Marie's Motion requesting relief under the First Step Act is unrelated to the contentions raised in his Petition, and the First Step Act provision under which Marie seeks relief was not yet effective at the time he filed his Motion. Even if this provision were effective at the time, Respondent maintains Marie's Motion would be subject to dismissal as unexhausted. Id. at 4-5.

         In his Response to the Motion to Dismiss, Marie reiterates his requested relief. Doc. 12 at 2-4. However, Marie avers he received partial relief, as he only had 47 days' good conduct time restored, and a real controversy remains. Id. at 5, 6. Marie asserts that his release date would have been October 4, 2019 had he received credit for all 54 days. Id. at 6. What is more, Marie stated he would have been released on September 14, 2019 under the First Step Act. Id. at 7.

         Respondent states the BOP restored 54 days' good conduct time to Marie, and the BOP correctly calculated his projected release date. Doc. 13 at 1. However, Respondent notes there is a difference between time actually served and the length of sentence, which results in proration. This proration, Respondent submits, amounts to 47 days Marie will actually serve and a change in his projected release date of 47 days. Id. at 2. In addition, Respondent contends Marie's projected release date has been adjusted further since Respondent filed his Motion to Dismiss, and Marie's projected release date was set for September 20, 2019.[1] Id.

         DISCUSSION

         I. Whether Marie's Petition is Moot

         Article 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). Regarding 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)).

         The BOP expunged the challenged incident reports and restored all 54 days of Marie's lost good conduct time. Doc. 10-1 at 3, 22; Doc. 13 at 1-2. In addition, Marie received benefit of the First Step Act's additional seven days' credit, which advanced his scheduled release date from October 12, 2019 to September 20, 2019. Doc. 13 at 2; Doc. 13-1 at 2. As Marie only requests the reinstatement of lost good-conduct time and an additional seven days' credit under the First Step Act, which has occurred, 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 GRANT Respondent's Motion to Dismiss and DENY as moot Marie's Petition for Writ of Habeas Corpus and his Motion for Additional Credit.[2]

         II. Leave to Appeal in Forma Pauperis

         The Court should also deny Marie leave to appeal in forma pauperis. Though Marie has not yet filed a notice of appeal, it would be appropriate to address that issue in the Court's order of dismissal. See Fed. R. App. P. 24(a)(3) (trial court may certify that appeal 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, either before or after the notice of appeal is filed, 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. County 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). An in forma pauperis action is frivolous and not brought in good faith if ...


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