United States District Court, W.D. Louisiana, Alexandria Division
REPORT AND RECOMMENDATION
H.L. PEREZ-MONTES UNITED STATES MAGISTRATE JUDGE.
the Court is a Petition for Writ of Habeas Corpus under 28
U.S.C. § 2241 (Doc. 1) filed by pro se
Petitioner Eduardo Herrero-Serrano
(“Herrero-Serrano”) (#17796-069). At the time of
filing, Herrero-Serrano was an inmate in the custody of the
Federal Bureau of Prisons (“BOP”), incarcerated
at the Federal Correctional Institution in Pollock,
Louisiana. Herrero-Serrano challenges the calculation of his
sentence by the BOP.
Herrero-Serrano has been released, his claim is moot and the
Petition (Doc. 1) should be DISMISSED for lack of
was sentenced to 120 months of imprisonment for kidnapping.
(3:10-cr-411, D.P.R.). Herrero-Serrano alleges that he is
entitled to additional good conduct time toward his sentence
due to the passage of the First Step Act of 2018. (Doc. 1).
to the BOP inmate locator service, Herrero-Serrano was
released on July 1, 2019. (https://www.bop.gov/inmateloc/).
Law and Analysis
III denies federal courts the power to decide questions that
cannot affect the rights of litigants in the case before them
. . . .” Lewis v. Continental Bank Corp., 494
U.S. 472, 477 (1990) (citations omitted). Herrero-Serrano
seeks a speedier release from custody. Because
Herrero-Serrano has been released, this Court can no longer
grant the relief requested, and Herrero-Serrano's claim
is moot. If a controversy becomes moot, the case is dismissed
for lack of subject matter jurisdiction. Lewis v.
Continental Bank Corp., 494 U.S. 472, 477 (1990).
extent Herrero-Serrano is serving a term of supervised
release, he is still “in custody” for purposes of
pursuing federal habeas relief. See Maleng v. Cook,
490 U.S. 488, 490-91 (1989); Johnson v. Pettiford,
442 F.3d 917, 918 (5th Cir. 2006; Watkins v.
Garrett, 476 Fed.Appx. 430, 432 (5th Cir. 2012).
However, even if Herrero-Serrano had been entitled to
additional good time credit toward his sentence, federal law
provides that those credits cannot be used either to shorten
the period of his supervised release, or to shorten the
period of any future imprisonment Herrero-Serrano may be
required to serve for violating the conditions of his
release. 28 C.F.R. § 2.35(b); see United States v.
Johnson, 529 U.S. 53, 60 (2000) (holding that the length
of a supervised release term may not be reduced by reason of
excess time served in prison); Bailey v.
Southerland, 821 F.2d 277, 278-79 (5th Cir. 1987).
Herrero-Serrano's request for relief is moot due to his
release, the Petition (Doc. 1) should be DISMISSED for lack
of subject-matter jurisdiction, WITH PREJUDICE as to the
jurisdictional issue, but WITHOUT PREJUDICE as to the merits
of Herrero-Serrano's claim.
the provisions of 28 U.S.C. § 636(b)(1)(c) and
Fed.R.Civ.P. 72(b), any party may serve and file with the
Clerk of Court written objections to this Report and
Recommendation within fourteen (14) days after being served
with a copy thereof, unless an extension of time is granted
under Fed.R.Civ.P. 6(b). A party may respond to another
party's objections within fourteen (14) days after being
served with a copy thereof. No. other briefs (such as
supplemental objections or reply briefs) may be filed, unless
a party shows good cause and obtains leave of court. The
District Judge will consider timely objections before issuing
a final ruling.
party's failure to file written objections to the
proposed factual findings, conclusions, and recommendations
contained in this Report and Recommendation within fourteen
(14) days after being served with a copy thereof, or within
any extension of time granted by the Court under Fed.R.Civ.P.
6(b), shall bar that party from attacking either the factual