1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 NORTHERN DISTRICT OF CALIFORNIA 10

GARY L. SMITH,

11 Case No. 23-cv-00016 BLF (PR) Petitioner, 12 ORDER GRANTING v. RESPONDENT’S MOTION TO 13 DISMISS; DENYING

CERTIFICATE OF

14 UNITED STATES OF AMERICA, APPEALABILITY

15 Respondent. 16

17 18 On January 3, 2023, Petitioner, a former federal prisoner, filed in pro se a petition 19 for writ of habeas corpus under 28 U.S.C. § 2241, challenging the loss of 14 days of “good 20 conduct time” based a due process violation. Dkt. No. 1. Finding the petition stated a 21 cognizable due process claim, the Court ordered Respondent to show cause why the writ 22 should not be granted. Dkt. No. 12. Respondent filed an answer in which they move to 23 dismiss the petition on various grounds. Petitioner did not file a response although given 24 an opportunity to do so. 25 26 BACKGROUND 27 Petitioner is a former BOP inmate who was convicted on October 20, 2003, in 1 engage in sexual conduct to produce pornography. Painter Decl.1 at ¶ 3, Dkt. No. 14-1. 2 He received a 235-month sentence with a five-year term of supervised release. Id., Ex. 1 3 (Dkt. No. 14-1 at 6-14. On December 13, 2019, Petitioner was released from BOP custody 4 and began serving his term of supervised release. Id, Ex. 2 (Dkt. No. 14-1 at 15-17). 5 On April 21, 2021, Petitioner’s sentencing judge found that Petitioner had 6 committed five violations of the conditions of his supervised release, revoked said term of 7 supervised release, and imposed a 36-month term of imprisonment with no further term of 8 supervised release to follow. Id. at ¶ 4, Ex. 3 (Dkt. No. 14-1 at 18-22). Petitioner was 9 serving his supervised release sentence at FCI Butner, North Carolina, when he was 10 approved for placement in community confinement on August 3, 2022. Id. at ¶ 5, Ex. 4 11 (Dkt. No. 14-1 at 23-25). On September 8, 2022, Petitioner was transferred from FCI 12 Butner to a Residential Reentry Center (“RRC”) in San Francisco, California, which is 13 overseen by the Sacramento Residential Reentry Management (“RRM”) Office. Id., Ex. 5 14 (Dkt. No. 14-1 at 26-27). 15 On November 2, 2022, RRC staff wrote up Petitioner for a Code 309 violation, 16 which was based on Petitioner violating a condition of the community program by 17 registering for an unauthorized program and producing sexually explicit matter.2 Id. at ¶ 8, 18 Ex. 9 (Dkt. No. 14-1 at 34-49); Dkt. No. 1 at 2. 19 On November 4, 2022, an inmate disciplinary hearing was held. Id. at ¶ 9. During 20 the hearing, Petitioner argued that he received permission to obtain training from 21

22 1 Respondent submits the declaration of Daniel Painter, the Contract Oversight Specialist for the Residential Reentry Office in Sacramento, California, which is part of the BOP. 23 Dkt. No. 14-1 at 1. The Office where Mr. Painter works is commonly referred to as the Residential Reentry Management’s Office (“RRM’s Office”). Painter Decl. ¶ 1. As part 24 of his job, Mr. Painter has routine access to BOP records, including BOP’s main database on inmates and other records relating to an inmate’s sentencing and custody. Id. at ¶ 2. 25 2 Specifically, RRC staff alleged that Petitioner had circumvented protocols in a job training program called Goodwill, which enabled him to access the internet where he 26 created “teenapedia,” a website featuring underaged girls dressed in suggestive clothing 1 Goodwill, that he thought he could access the internet when outside the RRC, and that the 2 websites with underaged girls were developed over 20 years ago, and not by him. Id., Ex. 3 9 (Dkt. No. 14-1 at 37 (Section 17)). 4 The Center Discipline Committee (“CDC”), which is comprised of RRC staff, 5 found persuasive Goodwill’s representation that Petitioner had bypassed its protocols to 6 access the internet in order to create the inappropriate website, and considered other 7 evidence, which included an email, Petitioner’s signed agreement, and the actual 8 “teenapedia” webpage. Id. (Section 19), Ex. 9 (Dkt. No. 14-1 at 43, 47-49). The CDC 9 Then referred the matter to the BOP Disciplinary Hearing Officer (“DHO”) to certify the 10 hearing and to impose disciplinary sanctions. Id. 11 Pursuant to BOP policy at Program Statement 7300.09, Community Corrections 12 Manual, RRCs are contractually obligated to follow BOP disciplinary policies. Id. at ¶ 10, 13 Ex. 10 (Dkt. No. 14-1 at 50-55). One key component is that a BOP DHO must certify a 14 CDC’s compliance with BOP disciplinary process within three working days of receipt. 15 Id. BOP policy does not require an inmate’s presence during the DHO’s certification of a 16 CDC hearing. Painter Decl. ¶ 10. 17 On November 15, 2022, a BOP DHO reviewed the CDC’s efforts, found Petitioner 18 to have violated Code 309, and imposed the sanctions of 14 days loss of GCT, 30 days of 19 quarters restrictions, and 40 hours of extra duty. Id. at ¶ 11, Ex. 11 (Dkt. No. 14-1 at 56- 20 59). As a result, Petitioner’s projected release date was changed by 14 days. Id. 21 Petitioner was released from BOP custody on February 10, 2023. Id. at ¶ 12. 22 Petitioner filed the instant petition on January 3, 2023. Dkt. No. 1. On February 9, 23 2023, Petitioner filed a letter stating that he was to be released from custody on February 24 10, 2023. Dkt. No. 8. The record shows that he was released on that date. Dkt. No. 14-1 25 at 109. 26 /// 1 DISCUSSION 2 I. Motion to Dismiss 3 Petitioner claims that the DHO held a hearing in abstentia, in violation of due 4 process. Dkt. No. 1 at 2. At the time of the hearing, Petitioner was at Santa Rita Jail, and 5 although the BOP knew where he was, they chose to hold a hearing without him. Id. at 3. 6 He also asserts that the DHO “lied when recording the hearing results in sentry (stating 7 that the hearing was not held in abstentia when in fact it was.” Id. Petitioner asserts that 8 he is innocent of the charges, and that there is no documentation stating that he cannot take 9 classes at Goodwill, including Information Technology classes. Id. Petitioner also asserts 10 that he is unable to exhaust his administrative remedies because they are unavailable to 11 him. Id. at 2. 12 Respondent filed an answer, asserting that the petition should be dismissed as moot 13 because Petitioner has been released from BOP custody, or alternatively, because 14 Petitioner failed to exhaust his available administrative remedies before filing this petition. 15 Dkt. No. 14 at 1. Respondent also contends that the claim lacks merit because there was 16 sufficient evidence that Petitioner violated BOP rules. Id. 17 Because the Court finds this case is moot as discussed below, it is not necessary to 18 address the other grounds for dismissal. 19 II. Mootness 20 Article III, Section 2, of the Constitution requires the existence of a “case” or 21 “controversy” through all stages of federal judicial proceedings. This means that, 22 throughout the litigation, the plaintiff “must have suffered, or be threatened with, an actual 23 injury traceable to the defendant and likely to be redressed by a favorable judicial 24 decision.” Lewis v. Continental Bank Corp., 494 U.S. 472, 477 (1990). A case becomes 25 moot “when the parties lack a legally cognizable interest in the outcome.” Johnson v. 26 Rancho Santiago Cmty. Coll. Dist., 623 F.3d 1011, 1020 (9th Cir. 2010) (quotation marks 1 An incarcerated convict’s (or a parolee’s) challenge to the validity of his conviction 2 satisfies the case-or-controversy requirement, because the incarceration (or the restrictions 3 imposed by the terms of the parole) constitutes a concrete injury, caused by the conviction 4 and redressable by the invalidation of the conviction. Spencer v. Kemna, 523 U.S. 1, 7 5 (1998). Once the convict’s sentence has expired, however, some concrete and continuing 6 injury other than the now-ended incarceration or parole—some “collateral consequence” of 7 the conviction—must exist if the suit is to be maintained and not considered moot. Id. 8 Continuing collateral consequences may be either proven or presumed. Id. at 8. 9 The presumption of collateral consequences that is applied to criminal convictions 10 does not extend to prison disciplinary proceedings. Wilson v. Terhune, 319 F.3d 477, 481 11 (9th Cir. 2003). A prisoner seeking to challenge prison disciplinary proceedings in habeas 12 must demonstrate that continuing collateral consequences exist if the punishment imposed 13 as a result of the disciplinary action has expired. See id. 14 After reviewing the papers, the Court finds there is no longer a live case-or- 15 controversy because Petitioner has been released from BOP custody and is not serving a 16 term of supervised release. The record shows that Petitioner was released on February 10, 17 2023. Dkt. No. 14-1 at 109. The record also shows that once Petitioner’s 36-month 18 supervised release term was completed, no further term was to follow. See supra at 2. 19 Because Petitioner is not on supervised release, there does not appear to be any collateral 20 consequences to maintain this suit. Moreover, although Petitioner has been served with 21 Respondent’s answer, he has filed no opposition to attempt to demonstrate that continuing 22 collateral consequences exist. Dkt. No. 16 at 2. Accordingly, the Court finds this action is 23 moot because Petitioner lacks a cognizable interest in the outcome. See Johnson, 623 F.3d 24 at 1020. 25 /// 26 /// 1 CONCLUSION 2 For the foregoing reasons, Respondent’s motion to dismiss is GRANTED. Dkt. 3 || No. 14. The petition for writ of habeas corpus is DISMISSED as moot. 4 No certificate of appealability is warranted in this case because a reasonable jurist 5 || would not find the dismissal of this petition debatable or wrong. Slack v. McDaniel, 529 6 || U.S. 473, 484 (2000). 7 IT IS SO ORDERED.

9 BETH LABSON FREEMAN United States District Judge 10 11 g

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19 20 21 22 23 24 25 Order Granting MTD as Moot; Denying COA PRO-SE\BLF\HC.24\00016Smith_grant-MTD(moot) 26 27