Case: 19-11156 Document: 00515705031 Page: 1 Date Filed: 01/13/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
January 13, 2021
No. 19-11156 Lyle W. Cayce
Clerk
Dawn Herndon,
Petitioner—Appellant,
versus
Jody R. Upton, Warden, FMC Carswell,
Respondent—Appellee.
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 4:18-CV-120
Before Haynes, Higginson, and Oldham, Circuit Judges.
Stephen A. Higginson, Circuit Judge:
Dawn Herndon appeals the dismissal of her petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2241. This is the latest installment in
Herndon’s challenge to an alleged dissonance between the oral
pronouncement and written judgment from her 2013 conviction and
sentence in the Southern District of Florida. The only issue before us,
however, is whether the Northern District of Texas erred in dismissing as
moot her § 2241 petition following her release from prison. Finding no error,
we AFFIRM.
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I.
Herndon pleaded guilty in 2012 to five counts of bank fraud with an
agreed loss amount of over $3 million in the Southern District of Florida.
Prior to sentencing, Herndon was diagnosed with cancer and underwent
extensive medical treatment. On March 25, 2013, she was sentenced below
the advisory guidelines range of 78–97 months to concurrent terms of 60
months of imprisonment, three years of supervised release, and $3,008,437
in restitution. Because Herndon needed additional medical treatment, the
district court agreed to allow her to voluntarily surrender one year later;
during that period, Herndon was released to home confinement with
electronic monitoring. The district court granted several extensions of
Herndon’s surrender date until March 27, 2015. Ultimately, a warrant was
issued for her arrest and Herndon was taken into custody on April 6, 2015.
While in prison, Herndon learned that the Bureau of Prisons (BOP)
calculated her sentence from the date she had entered custody in April 2015,
rather than the date she had been sentenced in March 2013. Consequently,
the BOP calculated her anticipated release date, after accounting for good-time credit pursuant to 18 U.S.C. § 3624(b), to be August 13, 2019. In March
2017, Herndon filed an unsuccessful pro se motion in the Southern District
of Florida asking the district court to amend the judgment to reflect its oral
pronouncement, which she asserted had awarded her credit against her 60-
month sentence for the time she would spend on home confinement. 1
Herndon then filed a pro se 28 U.S.C. § 2255 motion in the Southern
District of Florida, which the district court dismissed, in relevant part,
because any sentencing credit issue must be raised in a § 2241 petition filed
1
The Eleventh Circuit dismissed Herndon’s subsequent appeal as untimely.
United States v. Herndon, 733 F. App’x 1008, 1010 (11th Cir. 2018).
2
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in the district of Herndon’s incarceration. In denying Herndon’s subsequent
motion for reconsideration, the district court added:
Having reviewed the transcript, I confirm that I reduced the
period of imprisonment from the guideline range to a lesser
amount based on the period of future house arrest. In other
words, in fashioning a sentence of 60 months’ imprisonment, I
considered her surrender date and the fact that she would
spend approximately one year on home confinement. 2
In February 2018, Herndon, now represented by counsel, filed this
§ 2241 motion in the Northern District of Texas. She alleged that the BOP
improperly denied her credit for her time spent on home confinement.
Herndon asserted that her correct release date—calculated from her March
2013 sentencing date and accounting for good-time credit—lapsed in
December 2017. Alternatively, she argued that she would exceed even her
full 60-month sentence on March 24, 2018. She petitioned the district court
to grant a writ of habeas corpus and, as her sole request for relief, to be
released from custody.
While her § 2241 petition was pending, the BOP released Herndon on
July 19, 2019. Her three-year term of supervised release commenced the
same day. 3 In September 2019, the Northern District of Texas sua sponte
dismissed Herndon’s petition as moot because she was no longer
incarcerated. Herndon timely appealed.
2
The Eleventh Circuit also declined Herndon’s subsequent requests for a
certificate of appealability as to her § 2255 motion. Order, United States v. Herndon, No. 17-
12597-B (11th Cir. Sept. 20, 2017), reconsideration denied (11th Cir. Nov. 3, 2017).
3
According to the district court, “Herndon is now on supervised release reporting
to the West Palm Beach, Florida Probation Office.”
3
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II.
“Whether an appeal is moot is a jurisdictional matter, since it
implicates the Article III requirement that there be a live case or
controversy.” United States v. Heredia-Holguin, 823 F.3d 337, 340 (5th Cir.
2016) (en banc) (quoting Bailey v. Southerland,
821 F.2d 277, 278 (5th Cir.
1987)). We review the district court’s determination of mootness de novo.
United States v. Vega,
960 F.3d 669, 672 (5th Cir. 2020).
III.
It is undisputed that Herndon satisfied the jurisdictional “in custody”
requirement for purposes of pursuing relief under § 2241 at the time she filed
her petition. See 28 U.S.C. § 2241(c)(3); Maleng v. Cook,
490 U.S. 488, 490–
91 (1989). However, Herndon must separately satisfy the case-orcontroversy requirement of Article III, Section 2 of the Constitution. Spencer
v. Kemna,
523 U.S. 1, 7 (1998). Our jurisdiction is thus constrained to
adjudicating “actual, ongoing controversies between litigants.” Deakins v.
Monaghan,
484 U.S. 193, 199 (1988). “In order to maintain jurisdiction, the
court must have before it an actual case or controversy at all stages of the
judicial proceedings.” Vega, 960 F.3d at 672 (citing Spencer,
523 U.S. at 7).
“A case becomes moot only when it is impossible for a court to grant any
effectual relief whatever to the prevailing party.” Knox v. Serv. Emps. Int’l
Union, Loc. 1000,
567 U.S. 298, 307 (2012) (internal quotation marks and
citation omitted).
We agree with the district court that Herndon’s release mooted her
§ 2241 petition, notwithstanding her continued supervision, because there
was no longer a live case or controversy for which any relief could be granted.
Herndon had already received the sole relief sought in her petition: release
from confinement. See Bailey, 821 F.2d at 278 (dismissing a § 2241 petition
as moot following release where “the thrust of [the] petition is to be released
4
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from his confinement”). 4 Herndon’s § 2241 petition did not seek any
corresponding modification of her term of supervised release. Nor would
such modification automatically follow. See United States v. Johnson, 529 U.S.
53, 57–58 (2000). Even if Herndon served a longer custodial sentence than
she was supposed to, she is not entitled to “‘automatic credit’ as a means of
compensation.” United States v. Jeanes,
150 F.3d 483, 485 (5th Cir. 1998); see
also Johnson, 529 U.S. at 58–59 (“Though interrelated, the terms are not
interchangeable.”).
Herndon asserts that her appeal is not moot because her term of
supervised release can still be modified or terminated by the sentencing
court. See 18 U.S.C. § 3583(e). 5 She argues that this case is controlled by our
court’s decision in Johnson v. Pettiford,
442 F.3d 917 (5th Cir. 2006) (per
curiam), and thus not moot.
4
We have reached the same conclusion in recent unpublished cases. See, e.g.,
Aldaco v. Nash, 693 F. App’x 336, 337 (5th Cir. 2017) (per curiam) (unpublished) (§ 2241
petition seeking immediate release because BOP failed to properly credit petitioner’s
sentence was mooted by his release (citing Bailey, 821 F.2d at 278–79)); United States v.
Boston,
419 F. App’x 505, 506 (5th Cir. 2011) (per curiam) (unpublished) (“If the only relief
sought by an appellant cannot be granted, the case is moot.”).
5
Section 3583(e) provides, in relevant part:
The court may, after considering the factors set forth in [18 U.S.C.
§ 3553]—
(1) terminate a term of supervised release and discharge the
defendant released at any time after the expiration of one year of
supervised release . . . if it is satisfied that such action is warranted
by the conduct of the defendant released and the interest of
justice; [or]
(2) . . . modify, reduce, or enlarge the conditions of supervised
release, at any time prior to the expiration or termination of the
term of supervised release.
18 U.S.C. § 3583(e)(1)–(2).
5
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In Pettiford, the petitioner filed a pro se § 2241 petition challenging the
BOP’s determination that he was ineligible for a sentencing credit following
his completion of a substance abuse treatment program while in custody. Id.
at 917. The petitioner was subsequently released from prison and began
serving a term of supervised release, and the respondent moved to dismiss
the petition as moot. Id. at 918. The district court dismissed the petition
because the petitioner failed to timely respond in contravention of the local
rules. Id. at 917-18. This court reversed. Id. at 919. In first considering
whether the case was moot, we emphasized that under the Supreme Court’s
decision in Johnson, “a district court may exercise its discretion to modify an
individual’s term of supervised release, taking into account that an individual
has been ‘incarcerated beyond the proper expiration of his prison term.’” Id.
at 918 (quoting Johnson, 529 U.S. at 60). Consequently, we held “the
possibility that the district court may alter [the petitioner’s] period of
supervised release pursuant to
18 U.S.C. § 3582(e)(2), if it determines that
he has served excess prison time, prevents [his] petition from being moot.”
Pettiford,
442 F.3d at 918.
The government argues that Pettiford is distinguishable here because
the Northern District of Texas does not have jurisdiction to modify
Herndon’s term of supervised release. We agree. Absent a transfer of
jurisdiction over a prisoner’s term of supervised release, see 18 U.S.C.
§ 3605, only the sentencing court has authority to modify the terms of a
prisoner’s supervised release. Thus, the Northern District of Texas—unlike
the sentencing court—cannot offer Herndon any further relief.
We have reached this same conclusion in unpublished decisions
following Pettiford. For example, in Lawson v. Berkebile, we held that a pro se
§ 2241 petition challenging the BOP’s denial of early release was mooted by
the petitioner’s release from custody. 308 F. App’x 750, 752 (5th Cir. 2009)
(per curiam) (unpublished). Distinguishing Pettiford, we held that even
6
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though the petitioner was still serving a term of supervised release, “the
district court that denied [petitioner’s] § 2241 petition is without jurisdiction
to determine, under 18 U.S.C. § 3583, whether he served excess prison time;
that determination is to be made by the sentencing court.”
Id. at 752.
Consequently, we held that any “pronouncement by this court . . . would not
result in ‘specific relief through a decree of a conclusive character’ with
regard to modification of the sentence.”
Id. (quoting North Carolina v. Rice,
404 U.S. 244, 246 (1971)); see also Purviance v. Maye,
439 F. App’x 377, 378
(5th Cir. 2011) (per curiam) (unpublished) (holding that a § 2241 petition was
moot where the petitioner had been released from prison and the district
court lacked jurisdiction to alter his term of supervised release because it was
not the sentencing court).
More recently, in United States v. Vega, we echoed this interpretation
of Pettiford in concluding that a defendant’s direct appeal of his sentence was
not mooted by his release from prison. 960 F.3d at 673–74. Even though the
defendant in Vega only challenged his term of imprisonment and not his
supervised release, we emphasized that “[i]f the district court determined
that [the defendant] had been improperly sentenced, it would ‘have the
authority to modify [the] conditions of supervised release . . . or the authority
to terminate obligations of supervised release.’” Id. at 673 (quoting United
States v. Larez-Meraz, 452 F.3d 352, 355 (5th Cir. 2006)). We cited Pettiford
as an example of this same proposition: the appeal was not moot “because
there remained a ‘possibility that the district court may alter [his] period of
supervised release . . . if it determines that he has served excess prison
time.’”
Id. (alteration in original) (quoting Pettiford,
442 F.3d at 918).
Both Vega and Lawson thus apply Pettiford in the same way we do here:
an appeal of a district court’s order is not mooted by a prisoner’s release from
custody so long as that court has authority to modify an ongoing term of
supervised release.
7
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To overcome mootness, Herndon attempts to elide the distinction
between the sentencing and habeas courts. Essentially, she argues that under
Pettiford a § 2241 petition is not moot so long as the petitioner’s term of
supervised release may be altered by any district court with the authority to
do so. Herndon reads Pettiford too broadly. As we have repeatedly held since,
Pettiford does not salvage from mootness a petition that neither this court nor
the district court below has authority to grant. 6
Moreover, Herndon’s interpretation is belied by the remedy she seeks
on appeal. Herndon asserts that either this court or the habeas court “can,
after on-the-merits adjudication of Herndon’s petition, transfer this case” to
the sentencing court in the Southern District of Florida. Herndon does not
elaborate on what our “on-the-merits adjudication” would produce other
than a declaration that an out-of-circuit sentencing court could consider under
its authority whether to modify Herndon’s term of supervised release. That
we cannot do. See Golden v. Zwickler, 394 U.S. 103, 108 (1969) (“[F]ederal
courts . . . do not render advisory opinions.” (internal citation and quotation
marks omitted)). That “a favorable decision in this case might serve as a
useful precedent for [Herndon] in a hypothetical lawsuit . . . cannot save this
case from mootness.” United States v. Juvenile Male,
564 U.S. 932, 937
(2011). 7
6
Herndon also argues that Pettiford is factually analogous to her case because both
involved a sentencing court and a habeas court in different districts. In Pettiford, the
petitioner was sentenced in the Eastern District of California, but the § 2241 petition was
filed in the district of confinement in the Southern District of Mississippi. However,
neither this distinction nor which of these courts had authority to modify the petitioner’s
supervised release was discussed in Pettiford. In light of the liberal construction of
Pettiford’s pro se petition, and the omission of any discussion of these facts as bearing on
the opinion’s outcome, we need not presume that the Pettiford court spoke in such
absolutes. Our subsequent cases interpreting Pettiford have similarly declined to do so.
7
We express no opinion as to the merits of Herndon’s underlying claim.
8
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IV.
For the forgoing reasons, the district court’s order dismissing
Herndon’s § 2241 petition as moot is AFFIRMED.
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Andrew S. Oldham, Circuit Judge, concurring.
I agree with the majority that this case is moot. I further agree that
Johnson v. Pettiford, 442 F.3d 917 (5th Cir. 2006) (per curiam), is
distinguishable.
I write to emphasize that, in an appropriate case, our en banc court
should overrule Johnson v. Pettiford. There we held “the possibility that the
district court may alter [the § 2241 petitioner’s] period of supervised release
pursuant to 18 U.S.C. § 3583(e)(2), if it determines that he has served excess
prison time, prevents [the] petition from being moot.”
442 F.3d at 918
(emphasis added). The panel did not explain how such a mere possibility
could save a case from mootness.
Nor could it. As the Supreme Court recently emphasized, mootness
is a function of a party’s requested relief—not the theoretical possibility that
a party could request or receive something. See N.Y. State Rifle & Pistol Ass’n
v. City of New York, 140 S. Ct. 1525, 1526 (2020) (per curiam) (holding
petitioners’ claims for declaratory and injunctive relief became moot after
legislative amendments achieved “the precise relief that petitioners
requested in the prayer for relief in their complaint”);
id. at 1533–35 (Alito,
J., dissenting) (“[T]his case is not moot because the amended City ordinance
and new State law do not give petitioners all the . . . relief they seek.”
(emphasis omitted)).
The Supreme Court’s approach to mootness makes sense because
“[o]ur lack of jurisdiction to review moot cases derives from the requirement
of Article III of the Constitution under which the exercise of judicial power
depends upon the existence of a case or controversy.” Liner v. Jafco, Inc., 375
U.S. 301, 306 n.3 (1964); accord DeFunis v. Odegaard,
416 U.S. 312, 316
(1974). And when it comes to determining the existence of a case or
controversy, we look only to the claims the plaintiff made; it’s irrelevant that
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the plaintiff could’ve requested something else. See Summers v. Earth Island
Inst., 555 U.S. 488, 494–95 (2009). It’s impossible to reconcile the Supreme
Court’s approach with Johnson v. Pettiford’s decision to rescue a habeas
petition based on the mere possibility of a supervised-release modification
the petitioner did not request.
Moreover, Johnson v. Pettiford sits at the center of a circuit split.
Compare Rhodes v. Judiscak, 676 F.3d 931, 933–35 (10th Cir. 2012) (expressly
disagreeing with our decision and holding that a released prisoner’s § 2241
petition was moot because “it is entirely speculative whether a declaration
from this court stating that [the prisoner’s] sentence was excessive will aid
him in the future”), Burkey v. Marberry,
556 F.3d 142, 149 (3d Cir. 2009)
(“The possibility that the sentencing court will use its discretion to modify
the length of Burkey’s term of supervised release under 18 U.S.C.
3583(e) . . . is so speculative that any decision on the merits by the District
Court would be merely advisory and not in keeping with Article III’s
restriction of power.” (citation and footnote omitted)), and United States v.
Bundy,
391 F. App’x 886, 887 (D.C. Cir. 2010) (per curiam) (same) (quoting
Burkey), with Reynolds v. Thomas,
603 F.3d 1144, 1148 (9th Cir. 2010)
(asserting without analysis that a § 2241 allegation of “over-incarceration”
was not moot because a district court “could consider [the excess prison
time] under
18 U.S.C. § 3583(e) as a factor weighing in favor of reducing the
term of supervised release”), abrogated on other grounds by Setser v. United
States,
566 U.S. 231 (2012).
At some point, we should overrule Johnson v. Pettiford and follow the
Supreme Court’s approach to mootness.
11
