Opinion
CV 22-02184 PHX MTL (CDB)
05-02-2023
Rustin Eric Mair, Petitioner, v. RA Heisner, Respondent.
REPORT AND RECOMMENDATION
Camille D. Bibles United States Magistrate Judge
TO THE HONORABLE MICHAEL T. LIBURDI:
Petitioner Rustin Mair seeks relief pursuant to 28 U.S.C. § 2241, regarding the calculation of his sentence by the federal Bureau of Prisons (“BOP”). Mair is currently in the custody of the Federal Bureau of Prisons' Federal Correctional Institution in Phoenix, Arizona. Respondent filed an answer to the petition (ECF No. 10) and a supplemental response (ECF No. 11), and the time allowed Mair to file a reply has expired.
Mair was paroled in Utah on June 25, 2019, pursuant to a sentence imposed by a Utah state court for his conviction on one count of possession with intent to distribute a controlled substance in one criminal matter, and in a separate criminal matter for purchase, transfer, possession, or use of a firearm by a restricted person; receiving or transferring a stolen vehicle; identity theft; and unlawful possession, purchase, or transfer of a dangerous weapon. (ECF No. 10-1 at 3, 20, 22, 26). On February 16, 2021, Mair was arrested in Utah and charged with possession of a dangerous weapon in Case Number 211800066. (ECF No. 10-1 at 3). On February 25, 2021, a parole warrant was issued by a Utah state court, citing the criminal convictions noted supra. (ECF No. 10-1 at 3-4, 20, 22, 26).
On March 31, 2021, Mair was indicted in the United States District Court for the District of Utah, in case number 2:21-CR-00131 (D. Utah). (ECF No. 10-1 at 4, 33). On April 5, 2021, a Writ of Habeas Corpus ad Prosequendum was issued in the federal case, requiring Mair to be transferred from Utah's Duchesne County Jail into federal custody for his criminal proceedings in the federal matter. (ECF No. 10-1 at 36-37, see also United States v. Mair, 2:21-cr-00131, at ECF No. 9). On April 5, 2021, Mair was “borrowed” from the State of Utah pursuant to the writ and taken into custody by the United States Marshal. (ECF No. 10-1 at 39).
The record indicates Mair was in the custody of the Davis County, Utah jail for 211 days from April 13, 2021, through November 10, 2021, and in the custody of the Tooele County Detention Center, in Utah, for 3 days beginning January 25, 2022. (ECF No. 10-1 at 40).
On October 27, 2021, Mair was sentenced, pursuant to a guilty plea, in the United States District Court for the District of Utah, Case Number 2:21-CR-00131, pursuant to his conviction for being a felon in possession of a firearm and ammunition. (ECF No. 10-1 at 4, 43-45). He was sentenced to 33 months' imprisonment and 36 months of supervised release. (ECF No. 10-1 at 4, 44-45). The court was silent regarding Mair's then-pending state charges for possession of a dangerous weapon in the Utah state criminal matter, i.e., Case Number 211800066 and the parole warrant. (ECF No. 10-1 at 4, 43-45). After sentencing by the District of Utah in 2:21-CR-00131, Mair was returned to the custody of the State of Utah. (ECF No. 10-1 at 4).
On December 27, 2021, parole was revoked in Mair's Utah state criminal proceedings. (ECF No. 10-1 at 4, 30). On January 25, 2022, Mair was granted parole by the State of Utah contingent on his release to a federal detainer regarding the conviction and sentence in United States v. Mair, 2:21-CR-00131 (D. Utah). (ECF No. 10-1 at 30). Mair entered exclusive federal custody the same day. (ECF No. 10-1 at 4).
Mair was ultimately sentenced to consecutive terms of imprisonment on charges of possession with intent to distribute a controlled substance; purchase, transfer, possession, and/or use of a firearm by a restricted person; receiving or transferring a stolen vehicle; failure to stop and/or respond at the command of a police officer; unauthorized control of a vehicle; providing false personal information to a peace officer; and unlawful possession, purchase, or transfer of a dangerous weapon. (ECF No. 10-1 at 30). The State of Utah calculated the latest expiration of the serving of these sentences as January 28, 2045.
The federal Bureau of Prisons (“BOP”) prepared a sentence computation in Case Number 2:21-CR-00131, based on a 33-month sentence of imprisonment commencing on January 25, 2022, the date Mair entered federal custody under primary federal jurisdiction. (ECF No. 10-1 at 4). Mair initially received zero days of qualified presentence/prior custody credit, resulting in a Good Conduct Time release date of May 29, 2024. (ECF No. 10-1 at 4).
The instant § 2241 petition was signed on December 11, 2022, and docketed December 27, 2022. (ECF No. 1 at 9). Mair challenges the BOP's computation of his release date, asking the Court “to get the B.O.P. to credit 220 or 267 or 342 days” toward his release date. (Id.). Service was executed on Respondent, Warden Heisner, on January 25, 2023. (ECF No. 6).
On January 30, 2023, the BOP's Designation and Sentence Computation Center (“DSCC”) reviewed, updated, and certified Mair's sentence computation. (ECF No. 10-1 at 4). Specifically, Mair was awarded jail credit from April 5, 2021, to November 10, 2021, i.e., 220 days of credit toward his federal sentence for time served in the Utah jail. (Id.). Accordingly, as of the date the initial response to the § 2241 petition was filed, Mair's projected release date was October 22, 2023, via Good Conduct Time, when at the time the petition was filed the release date was May 29, 2024. (ECF No. 10-1 at 4; ECF No. 1 at 11).
On February 10, 2023, the Correctional Programs Specialist at the DSCC in Grand Prairie, Texas, sent a letter to the Utah federal court to solicit the position of the court regarding a retroactive designation of the state institution for the concurrent service of the federal sentence. (ECF No. 10-1 at 5. See also United States v. Mair, 2:21-CR-00131, at ECF No. 54). The District of Utah informed the BOP on or about March 2, 2023, that the court intended Mair's federal sentence to be conserved consecutively with his state sentence. (ECF No. 11-1 at 3). On March 22, 2023, the DSCC notified Respondent that it had re-computed Mair's sentence, that Mair was receiving credit for prior time served in jail, and with Good Conduct Time both earned and projected, Mair's release date is now 75 days sooner than previously ascertained, i.e., Mair's current release date is August 8, 2023 (id.), rather than May 29, 2024, i.e., 295 days sooner than the projected date at the time he filed his § 2241 petition.
Mair has not replied to the response to his § 2241 petition or the supplemental response, nor otherwise challenged Respondent's assertion that Mair has now received the relief sought in the petition. Mair has received the relief sought in his § 2241 petition, i.e., the BOP has credited Mair's sentence with at least 220 days served in state custody and recomputed his release date. Accordingly, the § 2241 petition is moot. See Rahman v. Graber, 615 Fed.Appx. 876 (9th Cir. 2015) (finding appeal moot when the petitioner was granted the relief sought while the case was on appeal). Under Article III of the United States Constitution, federal jurisdiction is limited to actual, ongoing “cases” or “controversies.” U.S. Const. Art. III, § 2, cl. 1. See also Spencer v. Kemna, 523 U.S. 1, 7 (1998). “Failure to satisfy Article III's case-or-controversy requirement renders a habeas petition moot.” Kittel v. Thomas, 620 F.3d 949, 951 (9th Cir. 2010); United States v. Strong, 489 F.3d 1055, 1059 (9th Cir. 2007); Wilson v. Terhune, 319 F.3d 477, 479 (9th Cir. 2003). A claim is moot when the issues presented are no longer live and there exists no present controversy as to which effective relief can be granted, because to maintain a claim the litigant must continue to have a personal stake in all stages of the judicial proceeding. See Abdala v. INS, 488 F.3d 1061, 1063 (9th Cir. 2007). A habeas petition is moot when a petitioner seeks relief that cannot be redressed by a favorable decision of the court issuing a writ of habeas corpus, i.e., when the relief the Court would grant has been has already been provided to the petitioner. See, e.g., Warren v. Cardwell, 621 F.2d 319, 322 (9th Cir. 1980); Warnick v. Booher, 425 F.3d 842, 846 (10th Cir. 2005). Because mootness is jurisdictional, see Cole v. Oroville Union High School District, 228 F.3d 1092, 1098-99 (9th Cir. 2000), a moot petition must be dismissed because nothing remains for the Court to remedy. Spencer, 523 U.S. at 18.
Accordingly, IT IS RECOMMENDED that the § 2241 petition at ECF No. 1 be dismissed as moot.
This recommendation is not an order that is immediately appealable to the Ninth Circuit Court of Appeals. Any notice of appeal pursuant to Rule 4(a)(1), Federal Rules of Appellate Procedure, should not be filed until entry of the District Court's judgment.
Pursuant to Rule 72(b), Federal Rules of Civil Procedure, the parties shall have fourteen (14) days from the date of service of a copy of this recommendation within which to file specific written objections with the Court. Thereafter, the parties have fourteen (14) days within which to file a response to the objections. Pursuant to Rule 7.2(e)(3) of the Local Rules of Civil Procedure for the United States District Court for the District of Arizona, objections to the Report and Recommendation may not exceed ten (10) pages in length. Failure to timely file objections to any factual or legal determinations of the Magistrate Judge will be considered a waiver of a party's right to de novo appellate consideration of the issues. See United States v. Reyna-Tapia, 328 F.3d 1114, 1121 (9th Cir. 2003) (en banc).