Christopher Shorter v. Warden

• Court: Court of Appeals for the Eleventh Circuit
• Decided: February 19, 2020
• Docket: 19-10790
• Status: Unpublished

Opinion

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT ________________________

No. 19-10790 Non-Argument Calendar ________________________

D.C. Docket No. 1:19-cv-20094-CMA

CHRISTOPHER SHORTER, a.k.a. Chrissy Shorter,

Plaintiff-Appellant,

versus

WARDEN,

Defendant-Appellee.

________________________

Appeal from the United States District Court for the Southern District of Florida ________________________

(February 19, 2020)

Before WILSON, ROSENBAUM, and ANDERSON, Circuit Judges.

PER CURIAM: In early January 2019, Christopher (“Chrissy”) Shorter1, a federal prisoner

proceeding pro se, filed a self-styled emergency petition for a writ of habeas corpus

under 28 U.S.C. § 2241, seeking immediate release based on the First Step Act of

2018, Pub. L. No. 115-391, 132 Stat. 5194 (2018), enacted on December 21, 2018.

According to Shorter, the First Step Act applied retroactively to afford her an

additional 56 days of good-time credits, which caused her sentence to expire on

December 20, 2018. Shorter requested an order directing the Bureau of Prisons to

recalculate her good-time credits under the First Step Act and immediately release

her from prison.

Before any response was filed, a magistrate judge screened Shorter’s petition

and issued a report recommending dismissal without prejudice for three reasons.

The magistrate judge concluded that (1) Shorter failed to exhaust administrative

remedies; (2) any claim under the First Step Act was premature because the Attorney

General had 210 days after the date of enactment to implement the good-time credit

changes; and (3) Shorter likely could not qualify for any credits for time served

before the enactment of the statute on December 21, 2018. Shorter objected and

challenged each of those conclusions.

1 Shorter states that she is a transgender female who prefers to be referred to using feminine pronouns. 2 The district court dismissed Shorter’s § 2241 petition on February 15, 2019.

The court “d[id] not reach the merits” of the magistrate judge’s report. Instead, the

court took judicial notice of Shorter’s projected release date of February 14, 2019,

and concluded that the case was moot because Shorter “ha[d] already received the

relief sought in the Petition—release from imprisonment.”

Shorter appeals, arguing that the case is not moot because the computation of

the length of her sentence could affect the length of her term of supervised release.

Reviewing de novo, we agree. See United States v. Al-Arian, 514 F.3d 1184, 1189

(11th Cir. 2008) (“Whether a case is moot is a question of law that we review de

novo.” (quotation marks omitted)).

The jurisdiction of federal courts is limited to active “cases” or

“controversies.” Id. (quoting U.S. CONST. art. III, § 2). A case “becomes moot, and

ceases to be a case or controversy, when it no longer presents a live controversy with

respect to which the court can give meaningful relief.” Id. (quotation marks

omitted). The “fundamental question” is whether the court has the ability to grant

the appellant “meaningful relief.” Id.

In criminal cases, a defendant wishing to continue her appeal after the

expiration of her sentence must suffer some continuing injury or collateral

consequence. United States v. Juvenile Male, 564 U.S. 932, 936 (11th Cir. 2011);

United States v. Serrapio, 754 F.3d 1312, 1317 (11th Cir. 2014). Collateral

3 consequences are presumed when a defendant challenges her underlying conviction.

Juvenile Male, 564 U.S. at 936. But no such presumption exists when a defendant

challenges only an expired sentence, and the defendant bears “the burden of

identifying some ongoing collateral consequence that is traceable to the challenged

portion of the sentence and likely to be redressed by a favorable judicial decision.”

Id. (cleaned up).

In Dawson v. Scott, we held that a prisoner’s § 2241 petition seeking credit

against his sentence was not mooted by the prisoner’s subsequent release. 50 F.3d

884, 886 n.2 (11th Cir. 1995); see also United States v. Brown, 117 F.3d 471, 475

n.3 (11th Cir. 1997) (same); United States v. Page, 69 F.3d 482, 487 n.4 (11th Cir.

1995) (same). We explained that the petitioner, Dawson, was still serving a term of

supervised release, “which is part of the sentence and involves some restrictions

upon his liberty.” Dawson, 69 F.3d at 487 n.4. Concluding that “success for Dawson

could alter the supervised release portion of his sentence,” we denied the

government’s motion to dismiss the appeal as moot. Id.

While we did not further explain how success could alter the supervised-

release portion of Dawson’s sentence, the Seventh Circuit has provided a rationale

consistent with Dawson. In a similar § 2241 case in which a petitioner sought credit

against a sentence, the Seventh Circuit concluded that the petitioner’s release did not

moot the appeal because a finding that the petitioner “spent too much time in prison

4 . . . would carry ‘great weight’ in a § 3583(e) motion to reduce [the petitioner’s]

term,” even though it would not “automatically entitle him to less supervised

release.” Pope v. Perdue, 889 F.3d 410, 414–15 (7th Cir. 2018). Other circuits have

adopted similar reasoning. See United States v. Epps, 707 F.3d 337, 345 (D.C. Cir.

2013); Levine v. Apker, 455 F.3d 71, 77 (2d Cir. 2006); Mujahid v. Daniels, 413 F.3d

991, 994–95 (9th Cir. 2005).

Here, Shorter’s release from prison did not moot her petition. Like Dawson,

Shorter sought credit against her sentence through a § 2241 petition, she was

subsequently released from prison, and she was serving a term of supervised release

at the time our decision issued.2 Moreover, as in Pope, Dawson could potentially

benefit from a finding that she spent too much time in prison. Accordingly, we

conclude that Shorter’s petition is not moot because “success for [Shorter] could

alter the supervised release portion of [her[ sentence.” Dawson, 69 F.3d at 487 n.4.

Since the appeal is not moot, the government argues the judgment should be

affirmed on two alternative grounds reflected in the magistrate judge’s report and

recommendation. Although we may affirm on any ground supported by the record,

Beeman v. United States, 871 F.3d 1215, 1221 (11th Cir. 2017), we decline to affirm

on these alternative grounds.

2 The government asserts that this case is more like an unpublished case, United States v. Sewell, 712 F. App’x 917, 918–19 (11th Cir. 2017), than Dawson. But it offers no specific ground on which to distinguish Dawson, which is binding, whereas Sewell is non-precedential. 5 First, the government asserts that Shorter’s § 2241 petition is premature. The

government notes that the provision of the First Step Act on which Shorter relies,

which amended the statute governing good-time credits for federal prisoners, 18

U.S.C. § 3624, was not effective at the time Shorter signed her pro se § 2241 petition

on January 3, 2019. Specifically, according the government, the First Step Act,

enacted on December 21, 2018, provided that the amendment to § 3624 would be

effective after the Attorney General completed a risk and needs assessment, which

the Attorney General had to complete within 210 days of the date of enactment—by

July 19, 2109, in other words. 132 Stat. at 5195–96, 5209–5210, 5213. Because

Shorter filed her § 2241 petition well before that date, the government argues, the

petition was premature.

We take the government’s prematurity argument to be based on the ripeness

doctrine. See Dig. Props., Inc. v. City of Plantation, 121 F.3d 586, 589 (11th Cir.

1997) (“The [ripeness] doctrine seeks to avoid entangling courts in the hazards of

premature adjudication.” (quotation marks omitted)). But ripeness can be affected

by events occurring after the case is filed. See Blanchette v. Conn. Gen. Ins. Corps.,

419 U.S. 102, 140 (1974) (stating that “ripeness is peculiarly a question of timing[;]

it is the situation now rather than the situation at the time of the District Court’s

decision that must govern”); Henley v. Herring, 779 F.2d 1553, 1555 (11th Cir.

1986) (considering events subsequent to the filing of the complaint, stating that

6 ripeness is a question of timing, and concluding that the case was ripe when the

district court ruled). The 210-day deadline has come and gone, so it poses no

ripeness problem for Shorter’s § 2241 petition.

As a second, alternative ground for affirmance, the government contends that

Shorter failed to exhaust her administrative remedies through the BOP before filing

suit in federal court. In general, a § 2241 petitioner must exhaust available

administrative remedies before she can obtain relief in federal court. Santiago-Lugo

v. Warden, 785 F.3d 467, 474–45 (11th Cir. 2015). However, the exhaustion

requirement in § 2241 cases is “judge-made,” rather than jurisdictional. Id. And the

Supreme Court has described “three broad sets of circumstances” where “the

interests of the individual weigh heavily against requiring administrative

exhaustion.” McCarthy v. Madigan, 503 U.S. 140, 144, 147 (1992).

We decline to address exhaustion in the first instance. Shorter objected in the

district court that requiring exhaustion would be futile in part because it “would take

too much time to go through the administrative process.” Her objection broadly

relates to the first circumstance described in McCarthy, where “requiring resort to

the administrative remedy may occasion undue prejudice to subsequent assertion of

a court action.” Id. at 146–47. Such prejudice may result because there is an

“unreasonable or indefinite timeframe for administrative action” or because,

regardless of the administrative time frame, “a particular plaintiff may suffer

7 irreparable harm if unable to secure immediate judicial consideration of his claim.”

Id. at 147. Because the district court did not address the merits of the magistrate

judge’s recommendation for lack of exhaustion or Shorter’s objections thereto, we

vacate and remand for the court to do so in the first instance. See Nyland v. Moore,

216 F.3d 1264, 1266 (11th Cir. 2000) (“If there is an issue that the district court did

not decide in the first instance, it is not properly before this Court and we remand

for the district court's consideration.”). The court may also consider whether

exhaustion is required for Shorter to continue her petition as it relates to her term of

supervised release.

In sum, we vacate the dismissal of Shorter’s § 2241 petition as moot and we

remand for further proceedings consistent with this opinion.

VACATED AND REMANDED.