Opinion
Civil Action 2:21-CV-00284
05-10-2022
JOSE LUIS ACUNA-GARZA, Petitioner, v. WARDEN COX ET AL, Respondent.
MEMORANDUM AND RECOMMENDATION
Julie K. Hampton United States Magistrate Judge
Petitioner Jose Luis Acuna-Garza, proceeding pro se, filed the present 28 U.S.C. § 2241 petition on November 25, 2021, while he was a federal prisoner at the Federal Correctional Institution-Three Rivers in Three Rivers, Texas. (D.E. 1). He raises claims regarding an improper change in his release date. Respondent filed a motion to dismiss contending that the petition is now moot because Acuna-Garza was released while it was pending. (D.E. 14). Acuna-Garza has not responded to the motion. For the reasons discussed further below, it is recommended that Respondent's motion to dismiss (D.E. 14) be GRANTED and Acuna-Garza's petition (D.E. 1) be DISMISSED AS MOOT.
I. BACKGROUND
a. Petition
In the petition, Acuna-Garza first argues that the Bureau of Prisons (“BOP”) incorrectly removed 36 days of his good-time credit and held him past his release date of November 25, 2021. (D.E. 1 at 6; D.E. 1-1 at 2-4). He asserts that his release date was improperly changed to December 31, 2021. (D.E. 1-1 at 3). Second, he argues that an immigration detainer filed against him was not executed on November 25, 2021, as it should have been, which violated his due process rights. (D.E. 1 at 6). He sought release from prison and to be paroled or given a reasonable bond to stay in the United States. (Id. at 7).
Acuna-Garza raises this claim under both grounds one and two, but the claim is the same in each ground.
b. Evidence
In February 2018, Acuna-Garza pleaded guilty to one count of being an alien found unlawfully in the United States after deportation, in violation of 8 U.S.C. §§ 1326(a), (b)(2). (D.E. 14-1 at 1). On February 7, 2018, he was sentenced to 60 months' imprisonment. (Id. at 1-2).
In a declaration, G. Rawls, an attorney for the BOP, stated that Acuna-Garza was released from prison on December 30, 2021. (D.E. 14-3 at 1). Rawls attached records indicating that Acuna-Garza was released on that date and that he was removed by U.S. Immigration and Customs Enforcement (“ICE”). (Id. at 4-8). Online BOP records also indicate that Acuna-Garza was released on December 30, 2021.
The federal offender database maintained by the Bureau of Prisons is available at: https://www.bop.gov/mobile/findinmate/byname.jsp.
II. DISCUSSION
In the motion to dismiss, the Respondent contends that Acuna-Garza's petition is now moot because he has been released from prison and removed from the country. (D.E. 14 at 1-2). Respondent contends that, as in Herndon v. Upton, 985 F.3d 443 (5th Cir. 2021), and several other cases, there is no longer a live case or controversy for which this Court can grant any relief. (Id. at 6-8). Alternatively, Respondent argues that Acuna-Garza failed to exhaust his administrative remedies. (Id. at 8-12).
Acuna-Garza has not filed a response.
In Herndon, the petitioner was initially convicted in the Southern District of Florida. Herndon, 985 F.3d at 444. She subsequently filed a § 2241 petition in the Northern District of Texas, where she was incarcerated at the time, seeking additional credit against her sentence for time previously spent on home confinement. Id. at 445. While the petition was pending, she was released from prison and began a term of supervised release. The district court sua sponte dismissed her petition as moot because she was no longer incarcerated. Id. The Fifth Circuit affirmed the district court's dismissal, concluding that “there was no longer a live case or controversy for which any relief could be granted.” Id. at 446.
Here, Acuna-Garza's petition is analogous to the petition at issue in Herndon for all relevant purposes. As in Herndon, Acuna-Garza was released from prison while his petition was pending. (D.E. 14-3 at 1, 4-8). He has since been removed from the country. (Id. at 8). Each of Acuna-Garza's claims relate to his contention that his release from prison was improperly delayed, but there now is no remedy to those claims because he has been released. (See generally D.E. 1, D.E. 1-1). Accordingly, this Court can no longer provide the relief that Acuna-Garza seeks, and his petition is moot. Herndon, 985 F.3d at 445-46.
III. RECOMMENDATION
Accordingly, it is recommended that Respondent's motion to dismiss (D.E. 14) be GRANTED and Acuna-Garza's petition (D.E. 1) be DISMISSED AS MOOT.
NOTICE TO PARTIES
The Clerk will file this Memorandum and Recommendation and transmit a copy to each party or counsel. Within FOURTEEN (14) DAYS after being served with a copy of the Memorandum and Recommendation, a party may file with the Clerk and serve on the United States Magistrate Judge and all parties, written objections, pursuant to Fed.R.Civ.P. 72(b), 28 U.S.C. § 636(b)(1), General Order No. 2002-13, United States District Court for the Southern District of Texas.
A party's failure to file written objections to the proposed findings, conclusions, and recommendation in a magistrate judge's report and recommendation within FOURTEEN (14) DAYS after being served with a copy shall bar that party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions accepted by the district court. Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc).