“Under the ‘case or controversy’ requirement, we lack authority to issue a decision that does not affect the rights of the litigants.”
How later courts described this case
- “Under the ‘case or controversy’ requirement, we lack authority to issue a decision that does not affect the rights of the litigants.”
Written by the judges who cited it.
The opinion
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION
DESMOND ALEXANDER, )
) Case No. 4:23-cv-02384
Petitioner, )
) Judge Dan Aaron Polster
v. )
) OPINION AND ORDER
WARDEN I. HEALY, )
)
Respondent. )
Before the Court is Petitioner Desmond Alexander’s (“Alexander”) pro se petition for
writ of habeas corpus under 28 U.S.C. § 2241. ECF Doc. 1. The government moves to dismiss
Alexander’s petition. ECF Doc. 5. For the following reasons, the Court DENIES AS MOOT
and DISMISSES Alexander’s habeas corpus petition. The Court DENIES AS MOOT the
government’s motion to dismiss.
Background and Procedural History
Alexander is a citizen of Dominica. ECF Doc. 1-1, PageID# 24. Prior to April 24, 2024,
he was held at Federal Correctional Institution Elkton. ECF Doc. 1, PageID# 1. The Bureau of
Prisons (“BOP”) Inmate Locator reflects that the BOP released Alexander at the conclusion of
his sentence on April 24, 2024.1 Petitioner is currently in the custody of U.S. Immigration and
Customs Enforcement, in Michigan.2 In August 2016, a jury in the U.S. District Court for the
Southern District of Florida (SDFL) convicted Alexander on two counts: conspiracy to possess
with intent to distribute one thousand (1,000) kilograms or more of marijuana (Count 1); and
1 Bureau of Prisons Inmate Locator, https://www.bop.gov/inmateloc// (last accessed 5/3/2024).
2 In email correspondence to the Court on May 6, 2024, the government confirmed that Alexander was released
from BOP custody into ICE custody on April 24, 2024. Additionally, the government confirmed that he is now in
ICE custody in Battle Creek, Michigan. ICE is detaining Petitioner in connection with his final order of removal.
possession with intent to distribute one thousand (1,000) kilograms or more of marijuana (Count
2). ECF Doc. 12 (SDFL Case no. 1:15-cr-20800-KMW). In October 2016, the SDFL court
sentenced Alexander to 120 months imprisonment, five years supervised release, and a $200
special assessment. ECF Doc. 137 (SDFL Case no. 1:15-cr-20800-KMW). The following
month, Alexander appealed, and in December 2017, the Eleventh Circuit Court of Appeals
affirmed his judgment. ECF Docs. 138, 157 (SDFL Case no. 1:15-cr-20800-KMW). In June
2018, the U.S. Supreme Court denied Alexander’s petition for a writ of certiorari. ECF Doc. 158
(SDFL Case no. 1:15-cr-20800-KMW). In February 2019, Alexander filed a motion to vacate
under 28 U.S.C. § 2255 before the SDFL court. ECF Doc. 160 (SDFL Case no. 1:15-cr-20800-
KMW). In May 2020, the court denied the motion. ECF Doc. 162 (SDFL Case no. 1:15-cr-
20800-KMW).
Turning to the instant motion, this is Petitioner’s second § 2241 petition related to his
immigration status filed before this Court. In June 2023, Alexander filed his first § 2241
petition, challenging the BOP’s determination that he was ineligible to apply his earned time
credits under the First Step Act. ECF Doc. 1 (Case no. 4:23-cv-01142-DAP). Approximately
three weeks later, the Court denied and dismissed without prejudice Alexander’s petition for
failure to exhaust his administrative remedies. ECF Docs. 1-2; 2; 3 (Case no. 4:23-cv-01142-
DAP). On December 14, 2023, Alexander filed his second § 2241 petition, which is presently
before the Court. ECF Doc. 1. Again, Alexander disputes BOP’s determination that he is
ineligible to apply his earned credits under the First Step Act. Id.
The government filed its answer to the petition/motion to dismiss on April 11, 2024.
ECF Doc. 5. It contends that “Alexander is not eligible to earn FSA credit pursuant to 18 U.S.C.
§ 3632(d)(4)(E)(i), because he is subject to a final order of removal under 8 U.S.C. § 235(b)(1).”
ECF Doc. 5, PageID# 49. As of the date of this opinion and order, Alexander has not submitted
a reply.
Standard
Before federal inmates can seek habeas relief under 28 U.S.C. § 2241, they must fully
exhaust their administrative remedies within the BOP. Luedtke v. Berkebile, 704 F.3d 465, 466
(6th Cir. 2013); Fazzini v. Northeast Ohio Correctional Center, 473 F.3d 229, 231-33 (6th Cir.
2006). To exhaust one’s administrative remedies, a federal prisoner must take the following
steps: (l) attempt informal resolution with prison staff; (2) if the prisoner achieves no satisfaction
informally, he must then file a written complaint with the warden; (3) followed by an appeal to
the regional director of the federal BOP; and finally, (4) if the prisoner has received no
satisfaction, he may appeal to the office of the General Counsel. See 28 C.F.R. §§ 542.10-16;
Chastain v. Williams, 2020 U.S. Dist. LEXIS 188104, at *7 (N.D. Ohio Oct. 9, 2020).
Turning to the First Step Act, eligible inmates who successfully participate in recidivism-
reduction programming earn time credits, which can be applied toward prerelease custody or
early transfer to supervised release. 18 U.S.C. § 3632(d)(4)(A), 18 U.S.C. § 3624(g). However,
the First Step Act explicitly excludes certain inmates from earning or applying time credit. 18
U.S.C. § 3632(d)(4)(D)-(E). Relevant here is § 3632(d)(4)(E)(i), which reads:
(E) Deportable prisoners ineligible to apply time credits.—
(i) In general.—A prisoner is ineligible to apply time credits under subparagraph
(C) if the prisoner is the subject of a final order of removal under any provision of
the immigration laws (as such term is defined in section 101(a)(17) of the
Immigration and Nationality Act (8 U.S.C. 1101(a)(17))).
18 U.S.C. § 3632(d)(4)(E)(i).
Analysis
Before turning to the § 2241 petition, the Court first addresses Alexander’s recent release
from BOP custody. “Article III of the Constitution confines the judicial power of federal courts
to deciding actual ‘Cases’ or ‘Controversies.’” Hollingsworth v. Perry, 570 U.S. 693 (2013)
(citing U.S. Const., art. III, § 2). Additionally, Article III requires that an “actual controversy
persist throughout all stages of litigation.” Hollingsworth, 570 U.S. at 693 (internal quotations
and citation omitted). When Alexander filed his first § 2241 in June 2023 and even his second
§ 2241 petition in December 2023, he was in BOP custody. And importantly, the Court had “the
authority to issue a decision that [would] affect the rights of the litigant[].” Coal. for Gov’t
Procurement v. Fed. Prison Indus., Inc., 365 F.3d 435, 458 (6th Cir. 2004) (“Under the ‘case or
controversy’ requirement, we lack authority to issue a decision that does not affect the rights of
the litigants.”).
Now, however, that is no longer the case, as BOP released Alexander on April 24, 2024.
Presently, even if the Court were to grant Alexander’s petition, the Court could not afford him
any “effectual relief.” Baker v. Bowers, 2024 U.S. Dist. LEXIS 13665, at *2 (W.D. Tenn. Jan.
25, 2024) (“The mootness question turns on whether a federal court can afford a litigant any
‘effectual relief.’”) (quoting Coalition for Gov’t Procurement, 365 F.3d at 458). Accordingly,
the disputed issue of Alexander’s earned time credits under the First Step Act is moot.
Even if the Court had reached the merits of Alexander’s § 2241 petition before his
release, the Court would still have denied his requested relief. First, regarding the exhaustion
requirement3, it appears that Alexander successfully exhausted his administrative remedies
before filing the instant petition. Following the Court’s Opinion and Order on June 26, 2023,
Alexander exhausted his remaining administrative remedies. He appealed the Warden’s denial
on June 30, 2023. ECF Doc. 1-1, PageID# 20. Next, he appealed the Regional Counsel’s denial
3 The government does not address the exhaustion requirement in its answer to petition/motion to dismiss (ECF Doc.
5).
on November 15, 2023. Id. at PageID# 21. He then filed the instant petition on December 14,
2023. ECF Doc. 1. The Court finds that Alexander exhausted his administrative remedies.
Accordingly, Alexander’s third ground for relief—that requiring him to exhaust his
administrative remedies would result in irreparable harm—is moot.
Turning to the substance of Alexander’s § 2241 petition, his remaining three grounds for
relief are centered on the same issue: whether Petitioner is eligible to apply earned time credits
under the First Step Act, considering his Notice and Order of Expedited Removal (ECF Doc. 1-1,
PageID# 24). The answer is no.
Alexander is not eligible to apply earned time credits under the First Step Act because he
is subject to a final expedited order of removal. On March 22, 2023, the U.S. Department of
Homeland Security (DHS) served Alexander with a Notice and Order of Expedited Removal.
ECF Doc. 1-1, PageID# 24-25. According to the Notice and Order of Expedited Removal, DHS
determined that under section 235(b)(1) of the Immigration and Nationality Act (“INA”), 8
U.S.C. § 1225(b)(1), that Alexander was “inadmissible to the United States,” pursuant to section
212(a)(7)(A)(i)(I) of the INA because: (1) Alexander is not a citizen or national of the United
States; (2) he is a native and citizen of Dominica; (3) he is “an immigrant not in possession of a
valid unexpired immigrant visa, reentry permit, border crossing card, or other valid entry
document required by the [INA];” and (4) he was paroled into the United States on September
29, 2015, at Miami, Florida for the purpose of prosecution. Id. at PageID# 24. Based on this
determination, DHS found Petitioner “inadmissible as charged” and ordered him removed from
the United States pursuant to § 235(b)(1) of the INA. Id.
Section 3632(d)(4)(E)(i) makes an inmate who is the subject of a “final order of removal
under any provision of the immigration laws” ineligible to apply First Step Act time credits. 18
U.S.C. § 3632(d)(4)(E)(i). This section explicitly references and incorporates the definition of
“immigration laws” under § 101(a)(17) of the INA. Id. The INA defines “immigration laws” as
“this Act and all laws, conventions, and treaties of the United States relating to the immigration,
exclusion, deportation, expulsion, or removal of aliens.” 8 U.S.C. §1101(a)(17). Additionally,
the INA defines the term “order of deportation” as an “order . . . concluding that the alien is
deportable or ordering deportation.” 8 U.S.C. §1101(a)(47). Generally, an order of deportation
becomes final upon the earlier of: (1) the Board of Immigration Appeals’ affirmation of the
deportation order; or (2) “the expiration of the period in which the alien is permitted to seek
review of such order by the Board of Immigration Appeals.” Id. at § 1101(a)(47)(B)(i) and (ii).
But an expedited order of removal is treated differently; there is no right to appeal an expedited
order of removal to the Board of Immigration Appeals. See 8 C.F.R. § 235.3(b)(2)(ii)4
(providing that “an alien is not entitled to . . . an appeal of the expedited removal order to the
Board of Immigration Appeals.”).
Here, Alexander is the subject of an “order of expedited removal,” that DHS issued
pursuant to a federal law, § 235(b)(1) of the Immigration and Nationality Act. ECF Doc. 1-1,
PageID # 24. The expedited removal order became final when DHS ordered Alexander deported
because the order is not subject to administrative review. Accordingly, Alexander’s expedited
removal order is a final order of removal that makes him ineligible to apply earned time credits
under the First Step Act.
4 8 C.F.R. § 235.3(b)(2)(ii) provides: “Except as otherwise provided in this section, such alien is not entitled to a
hearing before an immigration judge in proceedings conducted pursuant to section 240 of the Act, or to an appeal of
the expedited removal order to the Board of Immigration Appeals.”
Conclusion
For the foregoing reasons, Alexander’s § 2241 petition and the government’s motion to
dismiss are DENIED AS MOOT. Alexander’s petition is DISMISSED.
IT IS SO ORDERED.
Date: May 7, 2024
/s/ Dan Aaron Polster
Dan Aaron Polster
United States District Judge