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Ashley v. Tuten

United States District Court, W.D. Louisiana, Monroe Division

February 22, 2019

TONY ASHLEY
v.
JIM TUTEN

         SECTION P

          TERRY A. DOUGHTY JUDGE

          REPORT AND RECOMMENDATION

          KAREN L. HAYES UNITED STATES MAGISTRATE JUDGE

         Petitioner Tony Ashley, a prisoner in the custody of Louisiana's Department of Corrections proceeding pro se and in forma pauperis, filed the instant Petition for Writ of Habeas Corpus on February 1');">15, 201');">19, utilizing a form for filing petitions under 28 U.S.C. § 2254. Petitioner seeks dismissal of his charge for failure to register as a sex offender.[1');">1" name="FN1');">1" id= "FN1');">1">1');">1] For the following reasons, it is recommended that the Petition be dismissed as moot.

         Background

         On approximately December 1');">18, 201');">17, Petitioner was charged, before the Third Judicial District Court, Lincoln Parish, Louisiana, with failing to register as a sex offender. [doc. # 1');">1, p. 1');">1]. According to Petitioner, the charge stemmed from his prior conviction, in November 1');">1996, of carnal knowledge of a juvenile. Id. Petitioner seeks dismissal of the current charge, arguing that, when he was convicted of carnal knowledge of a juvenile, he was never ordered, or notified of his obligation, to register as a sex offender. Id. at 2, 1');">15. He also suggests that he was not required to register because his prior conviction was over twenty years old. Id. at 1');">14.

         On February 1');">19, 201');">19, while this proceeding was pending, Petitioner pled guilty to failing to register as a sex offender. Telephone Calls to District Attorney and Clerk of Court, 3rd Judicial District Court, Lincoln Parish, Louisiana (February 20, 201');">19). The trial judge sentenced Petitioner the same day. Id.

         Law and Analysis

         Petitioner, as noted, utilized a form for filing petitions under 28 U.S.C. § 2254. However, 28 U.S.C. § 2254 does not apply because, when Petitioner filed, he was a pre-trial detainee and was not in custody “pursuant to the judgment of a State court.” 28 U.S.C. § 2254(a). Otherwise stated, he did not challenge his conviction when he filed his Petition because he was not yet convicted.

         Rather, he sought-and seeks-dismissal of his pending charge. Thus, 28 U.S.C. § 2241');">1(c) applies: “Pre-trial petitions . . . are properly brought under 28 U.S.C. § 2241');">1, which applies to persons in custody regardless of whether final judgment has been rendered and regardless of the present status of the case pending against him.” Dickerson v. State of La., 1');">16 F.2d 220');">81');">16 F.2d 220, 224 (5th Cir. 1');">1987); see Braden v. 30th Judicial Circuit Court of Kentucky, 1');">10 U.S. 484');">41');">10 U.S. 484, 503 (1');">1973) (observing that Section 2241');">1 “empowers district courts to issue the writ, inter alia, before a judgment is rendered in a criminal proceeding.”).

         While the instant Petition was pending, Petitioner pled guilty to the charge he seeks to dismiss. A pre-trial detainee's Section 2241');">1 Petition is rendered moot “when the court cannot grant the relief requested by the moving party.” Salgado v. Fed. Bureau of Prisons, 220 Fed.Appx. 256, 257 (5th Cir. 2007) (citing Brown v. Resor, 407 F.2d 282, 283 (5th Cir. 1');">1969) and Bailey v. Southerland, 1');">1 F.2d 277');">821');">1 F.2d 277, 278 (5th Cir. 1');">1987)).[2]

         Here, Petitioner's claims are moot: the Court cannot dismiss Petitioner's once-pending charge because the charge is no longer pending. The Court, in other words, cannot grant relief under Section 2241');">1 because Petitioner is no longer a pre-trial detainee and is now in custody pursuant to the judgment of a Louisiana court.[3] The legality of his pre-trial detention is no longer in controversy. See Hartfield v. Osborne, 1');">1066');">808 F.3d 1');">1066, 1');">1068 (5th Cir. 201');">15) (observing that Section 2241');">1 no longer applied because the petitioner was convicted and, consequently, “any writ of habeas corpus granted by a federal court will necessarily free him from custody pursuant to a state court judgment.”).

         Although Petitioner is now in custody pursuant to a judgment of a state court, the undersigned declines to apply Section 2254 because Petitioner did not, and does not now, attack his conviction or sentence.[4] Rather, he sought-and seeks-dismissal of a charge to which he pled guilty. [See doc. # 1');">1, p. 1');">15]. Dismissing this proceeding will not affect Petitioner's “ability to proceed through the state court process” and “file a federal habeas petition under § 2254, should that become necessary, once he has exhausted his state remedies (or can show an exception to the exhaustion requirement).”[5] See Hartfield, 808 F.3d at 1');">1074 (noting that a subsequent “federal habeas petition under § 2254 . . . will not be a ‘second or successive habeas corpus application' under § 2244.”).

         The undersigned is cognizant that, in Hartfield, 808 F.3d at 1');">1071');">1-72, the Fifth Circuit held that a petitioner's claim fell “within § 2254(b)(1');">1)” because, while he filed his Section 2241');">1 petition when in pre-trial custody, he was convicted after he appealed, he was therefore in custody pursuant to a state court judgment, and, consequently, “any habeas writ that issue[d] from a federal court . . . would necessarily release him from custody pursuant to a state court judgment.” There, however, the petitioner argued that the State of Texas violated his right to a speedy trial, and the Fifth Circuit characterized the claim “as an attack on the validity of his conviction and sentence . . . .” Id. at 1');">1072 (internal quotation marks and quoted source omitted). Here, the undersigned does not characterize Petitioner's claim-which he filed before his conviction and did not ...


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