ALI v. ISHEE

IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF NORTH CAROLINA

ABDULKADIR SHARIF ALI, )

)

Petitioner, )

)

v. ) 1:24CV547

)

LESLIE COOLEY-DISMUKES, )

)

Respondent.1 )

MEMORANDUM OPINION AND RECOMMENDATION

OF UNITED STATES MAGISTRATE JUDGE

Petitioner, a prisoner of the State of North Carolina, seeks

a writ of habeas corpus pursuant to 28 U.S.C. § 2254 (the

“Petition”). (Docket Entry 1.) Respondent thereafter submitted a

filing entitled “Motion to Dismiss as Moot” (“Motion to Dismiss”)

(Docket Entry 5); see also Docket Entry 6 (“Supporting Brief”)),

Petitioner responded in opposition to Respondent’s Motion to

Dismiss (Docket Entries 10, 11), and Respondent replied (Docket

Entry 12). For the reasons that follow, the Court should grant

Respondent’s Motion to Dismiss.

I. Background

On August 8, 2014, a jury in the Superior Court of Guilford

County found Petitioner (and his co-defendant) guilty of attempted

robbery with a dangerous weapon, conspiracy to commit robbery with

a dangerous weapon, assault with a deadly weapon inflicting serious

1 “If the petitioner is currently in custody under a state-court judgment,

the petition must name as respondent the state officer who has custody.” Rule

2(a), Rules Governing Section 2254 Cases in the United States District Courts.

In North Carolina, the Secretary of the North Carolina Department of Adult

Correction (“NCDAC”) “ha[s] control and custody of all prisoners serving sentence

in the [s]tate prison system.” N.C. Gen. Stat. § 148-4. Leslie Cooley-Dismukes,

the current Secretary of the NCDAC, should substitute as Respondent in this

action under Rule 25(d) of the Federal Rules of Civil Procedure.

injury, and first degree burglary in cases 13 CRS 100094, 100098,

10099, and 14 CRS 24118. See State v. Sheikh, No. COA-15-688, 786

S.E.2d 433 (table), 2016 WL 1744651, at *1 (N.C. App. May 3, 2016)

(unpublished). The trial court sentenced Petitioner to three

consecutive prison sentences of 59 to 83 months, 59 to 83 months,

and 23 to 40 months. See id. at *2.°

A Disciplinary Hearing Officer (“DHO”’) at the Tabor

Correctional Institution (where Petitioner then served his

sentences for the underlying convictions described above) convicted

Petitioner after a hearing of disciplinary offense “A-12” for

“substance possession.” (Docket Entry 1, 99 1-2, 5-7; see also

Docket Entry 6-2 at 8-11.)° As a result of that conviction, the

DHO sentenced Petitioner to 30 days in restrictive housing for

disciplinary purposes (“RHDP”) (see Docket Entry 1, I 3; see also

Docket Entry 6-2 at 8), the loss of 40 days of sentence reduction

credits (see Docket Entry 1 at 18; see also Docket Entry 6-2 at 8),

50 hours of extra duty (see Docket Entry 6-2 at 8), a 90-day

suspension of canteen, visitation, and telephone privileges (see

* The North Carolina Court of Appeals found no error in Petitioner’s

convictions and sentences, Sheikh, 2016 WL 1744651, at *2, the North Carolina

Supreme Court denied Petitioner’s petition for discretionary review (“PDR”),

State v. Sheikh, 369 N.C. 39 (2016), and the United States Supreme Court denied

Petitioner’s petition for a writ of certiorari, Ali v. North Carolina, 580 U.S.

1166, 137 S. Ct. 1218 (Mem.) (2017). After the trial court denied Petitioner’s

Motion for Appropriate Relief collaterally challenging his convictions and

sentences, this Court dismissed with prejudice Petitioner’s action under 28

U.S.C. § 2254 attacking his underlying convictions and sentences without issuance

of a certificate of appealability. See Ali v. Hooks, No. 17CV1034, 2018 WL

3421338, at *1 (M.D.N.C. July 13, 2018) (unpublished), recommendation adopted,

slip op. (M.D.N.C. Sept. 4, 2018) (Biggs, J.).

> Throughout this Recommendation, pin citations to page numbers refer to

the page numbers in the footer appended to these cited materials at the time of

their docketing in the CM/ECF system.

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id. at 9), and 60 days of limited withdrawal from his prison trust

fund (see id.). Thereafter, prison officials denied Petitioner’s

appeal and upheld his disciplinary convictions and sentences. (See

id., @ 9; see also id. at 19; Docket Entry 6-2 at 2-7.)

Petitioner subsequently submitted his instant Petition asking

the Court to ‘overturn[]/vacate[]” his disciplinary conviction,

“expunge the conviction “from [his prison] record[,]” and order

the “return of [the] 40 days [of lost] sentence reduction credits.”

(Docket Entry 1 at 18.)

II. Ground for Relief

Petitioner alleges “Due Process [v]Jiolations elucidated [in

paragraph] 9(f) [of his Petition]” (Docket Entry 1, 9 12 (Ground

One) (stray period omitted)), in that the DHO “{[djenil[ed

Petitioner] exculpatory evidence with respect to live

witnesses, . . . denied camera footage that was of exculpatory

value, [d]Jenied [Petitioner] an opportunity to hear and be heard,

as well as . . . to be heard by a fair and impartial hearing

officer[,] and [denied] staff assistance” (id., JI 9(f)); see also

Docket Entry 1 at 5-7 (setting forth “[s]upporting facts” for

Ground One)).

III. Discussion

Respondent moves to dismiss the Petition on grounds of

mootness, because “the North Carolina Department of Adult

Correction [(‘NCDAC’)] has chosen to restore to Petitioner the lost

forty days of sentencing reduction credits at issue in this case.”

(Docket Entry 6 at 3 (hyphen omitted).) In support of that

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argument, Respondent proffers the Affidavit of Joshua Panter, “the

Director of Operations for the [NCDAC], Division of Prisons.”

(Docket Entry 6-3, ¶ 2.) In that Affidavit, Mr. Panter avers that,

“[i]n order to avoid further litigation, [Prisons Administration]

ha[s] determined to restore to [Petitioner] . . . the 40 days of

earn time credits that were placed at issue in this matter as a

result of [Petitioner’s disciplinary] incident on [] 5 March 2024.”

(Id., ¶ 3.) Mr. Panter attached to his Affidavit “database

print-out[s] that reflect[] that, on 26 August 2024, 40 days’ time

ha[d] been restored to [Petitioner] in order to restore the credits

lost due to the A-12 violation that took place on 5 March 2024[.]”

(Id., ¶ 4; see also Docket Entry 6-4 at 2-4 (database print-outs

showing Petitioner’s “SENTENCE CREDITS/PENALTIES” and “RELEASE DATE

CALCULATION” before restoration of 40 days’ sentencing reduction

credits); Docket Entry 6-5 at 2-4 (database print-outs reflecting

Petitioner’s “SENTENCE CREDITS/PENALTIES” and “RELEASE DATE

CALCULATION” after “VOID[ING]” loss of those 40 days)). As a

result of the restoration of Petitioner’s lost 40 days of

sentencing reduction credits, Respondent contends that “federal

habeas corpus relief is no longer available in this prison

disciplinary case.” (Docket Entry 6 at 3 (citing Wolff v.

McDonnell, 418 U.S. 539, 557-58 (1974), Rasul v. Buffaloe, No.

1:21CV311, Docket Entry 28 at 2 (M.D.N.C. Feb. 10, 2023) (Peake,

M.J.), recommendation adopted, slip op. (M.D.N.C. Mar. 8, 2023)

(Biggs, J.), and Holtz v. Richards, 779 F. Supp. 111, 113 (N.D.

Ind. 1991)).)

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“The doctrine of mootness constitutes a part of the

constitutional limits of federal court jurisdiction,” Porter v.

Clarke, 852 F.3d 358, 363 (4th Cir. 2017) (brackets omitted), which

extends only to actual “Cases” and “Controversies,” U.S. Const.

art. III, § 2, cl. 1. In that regard, “[w]hen a case or

controversy ceases to exist — either due to a change in the facts

or the law — ‘the litigation is moot, and the court’s subject

matter jurisdiction ceases to exist also.’” Id. (quoting South

Carolina Coastal Conservation League v. U.S. Army Corps of Eng’rs,

789 F.3d 475, 482 (Ath Cir. 2015)). “This case-or-controversy

requirement subsists through all stages of federal judicial

proceedings, trial and appellate,” Lewis v. Continental Bank Corp.,

494 U.S. 472, 477 (1990), and “[t]he parties must continue to have

a personal stake in the outcome of the lawsuit,” id. at 478

(internal quotation marks omitted).

Federal Rule of Civil Procedure 12(b) (1) governs motions to

dismiss for mootness. See CGM, LLC v. BellSouth Telecomm’ns, Inc.,

664 F.3d 46, 52 (4th Cir. 2011). As Respondent “challenges the

existence of subject matter jurisdiction in fact, [Petitioner]

bears the burden of proving the truth of such facts by a

preponderance of the evidence.” U.S. ex rel. Vuyyuru v. Jadhav,

555 F.3d 337, 347 (4th Cir. 2009). In determining whether

Petitioner has met that burden, the Court must “regard the

pleadings’ allegations as mere evidence on the issue, and may

consider evidence outside the pleadings without converting the

proceeding to one for summary judgment.” Richmond, Fredericksburg

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& Potomac R.R. Co. v. United States, 945 F.2d 765, 768 (4th Cir.

1991).

Respondent’s materials demonstrate that Petitioner has already

obtained restoration of the 40 days’ sentencing reduction credits

he lost as a result of conviction of the A-12 offense on March 5,

2024. (See Docket Entry 1 at 18; see also Docket Entries 6-3, 6-4,

6-5.) Notwithstanding that restoration, Petitioner contests the

mootness of his Petition on three grounds: 1) the “voluntary

cessation exception” to mootness (Docket Entry 11 at 2), 2) “the

capable of repetition[, yet evading review] doctrine” (id. at 3

(quotation marks, hyphens, and brackets omitted)), and 3)

“collateral consequences . . . as [a] direct result of his [prison

disciplinary] conviction” (id. at 6). For the reasons that follow,

none of those grounds defeat Respondent’s mootness arguments.

A. Voluntary Cessation Exception to Mootness

Petitioner first argues that, pursuant to the voluntary

cessation exception, “[m]ootness is established only if ‘(1) it can

be said with assurance that “there is no reasonable

expectation . . .” that the alleged violation will reoccur . . .

and (2) interim relief or events have completely and irrovocably

[sic] erradicated [sic] the effects of the alleged violation.’”

(Id. at 2 (quoting County of Los Angeles v. Davis, 440 U.S. 625,

631 (1979) (internal citations omitted) (in turn quoting United

States v. W.T. Grant Co., 345 U.S. 629, 633 (1953))).) According

to Petitioner, “[he] know[s] for a fact that [he] will be subject

to these same risks of having [his] due process rights violated by

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[Respondent] - as it has been [his] unpleasant experience - being

subjected to such, at many different facilities at different times

throughout [his] incarceration.” (Id. at 13; see also id. at 5

(contending that “[he] has demonstrated that he will indubitably be

subject to these same risks in his Affidavit, given his experience

in the custody of the NCDAC[,] and the copious litigation against

the NCDAC fully reveal[s] the more than evident possibility of the

action occurring again and again”).)

As Respondent has argued, “Petitioner’s ‘voluntary cessation’

argument is misplaced,” because that exception to mootness “only

potentially applies when a party to litigation voluntarily stops

performing an ongoing, illegal act after litigation has begun.”

(Docket Entry 12 at 3 (emphasis added).) As Respondent points out,

“the instant [P]etition did not challenge some ongoing due process

violation which Respondent could voluntarily cease after

commencement of [this] litigation” but, rather, “only alleged that

Respondent violated Petitioner’s due process rights during the

disciplinary investigation and hearing” arising out of his A-12

offense committed on March 5, 2024, “which concluded on 18 March

2024.” (Id. (citing Docket Entry 1 at 2, 8) (italics supplied by

Respondent) (underscoring added).) Moreover, although Respondent

voluntarily restored Petitioner’s 40 days of lost sentence

reduction credits, Petitioner did not challenge on due process (or

other) grounds Respondent’s right to remove those 40 days of

credits as part of Petitioner’s prison disciplinary sentence, much

less allege that Respondent’s ongoing policy of removing such

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credits from other prisoners as a disciplinary sanction for certain

offenses violated the U.S. Constitution in some way (see Docket

Entries 1, 11). In other words, Respondent has not voluntarily

ceased any ongoing practice which Petitioner has challenged as

unconstitutional and, thus, the voluntary cessation exception to

mootness simply does not apply to Petitioner’s case. See Leonard

v. Hammond, 804 F.2d 838, 842 (4th Cir. 1986) (recognizing only

“[t]wo exceptions to the mootness doctrine” in Section 2254 cases:

“(1) collateral consequences; and (2) capable of repetition, yet

evading review” (internal quotation marks omitted)); Fields v.

Warden of New Jersey State Prison, No. 13CV7693, 2016 WL 3041857,

at *4 (D.N.J. May 26, 2016) (unpublished) (“[The p]etitioner’s

argument that ‘the voluntary cessation of allegedly illegal conduct

does not deprive the tribunal of power to hear and determine the

case’ is inapplicable in a habeas proceeding [under Section

2254].”).

B. Capable of Repetition, Yet Evading Review Doctrine

Petitioner makes only passing reference to “[t]he capable of

repetition[, yet evading review] doctrine” in his response in

opposition to Respondent’s instant Motion (Docket Entry 11 at 3

(internal quotation marks and hyphens omitted)), stating that

“‘[t]he . . . doctrine applies only in exceptional situations,’

City of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983), where a

[p]laintiff can show that ‘(1) the challenged action was in its

duration too short to be fully litigated prior to its cessation or

expiration, and (2) there was a reasonable expectation that the

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same complaining party would be subjected to the same action

again[,]’ Gulf of Maine Fisherman’s Alliance v. Daley, 292 F.3d 84,

89 (lst Cir. 2002) (quoting Weinstein v. Bradford, 423 U.S. 147,

149 (1975) (per curiam))” (id. at 3-4 (parallel citations

omitted)). Nevertheless, in view of Petitioner’s pro se status and

the United States Court of Appeals for the Fourth Circuit’s ruling

that the doctrine applies in the Section 2254 setting, see Leonard,

804 F.2d at 842, the undersigned will address whether the doctrine

defeats Respondent’s mootness argument.

Even assuming, arguendo, that Petitioner could show that the

prison disciplinary process he challenged “was in its duration too

short to be fully litigated prior to its cessation,” Weinstein, 423

U.S. at 149, he cannot demonstrate that “there was a reasonable

expectation that [he] would be subjected to the same [due process

violations] again,” id. The Fourth Circuit has ruled that

satisfaction of the “reasonable expectation” prong cannot depend on

an assumption that the petitioner will commit bad acts in the

future that would again subject him to the challenged conduct:

[The petitioner] bears the burden of demonstrating that

the [capable of repetition, yet evading review] exception

applies, see, e.g., Brooks v. Vassar, 462 F.3d 341, 348

(4th Cir. 2006), and in this instance, it is a burden

that he cannot carry. Unless [the court is] to assume

that [the petitioner] will flout [South Carolina

Department of Corrections (“SCDC”)] standards and codes

of conduct in such a manner as to warrant reassignment to

the [Maximum Security Unit (“MSU”)], there is nothing in

the record to support the proposition that he is likely

to be subjected to the [challenged conduct] again in the

future. There is no evidence in the record that the SCDC

arbitrarily places inmates in the MSU. Instead,

assignment to the MSU is directly tied to an inmate’s bad

behavior, so [the petitioner] thus “holds the keys” to

his remaining free from the [MSU].

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For [the court] to find the exception for cases “capable

of repetition, yet evading review” applicable here, then,

[the court] would have to forecast bad behavior on [the

petitioner]’s part. [The court] surely cannot base [its]

mootness jurisprudence in this context on the likelihood

that an inmate will fail to follow prison rules. Such

“conjecture as to the likelihood of repetition has no

place in the application of this exceptional and narrow

grant of judicial power” to hear cases for which there is

in fact a reasonable expectation of repetition.

Abdul-Akbar[ v. Watson], 4 F.3d [195,] 207 [(3d Cir.

1993)]. There must be a “demonstrated probability” that

the challenged action will recur again, and to the same

complainant. Murphy v. Hunt, 455 U.S. 478, 483 (1982)

(per curiam). Because [the petitioner] will only find

himself in the MSU again if he bucks prison policy, and

because [the court] presume[s] that he will abide by

those policies, [the court] conclude[s] that the “capable

of repetition, yet evading review” exception to mootness

does not apply in this case. See Slade v. Hampton Roads

Reg’l Jail, 407 F.3d 243, 249 (4th Cir. 2005) (presuming,

in deciding a mootness question, that individuals will

abide by the law in the future).

Federal courts are not comprised of philosopher-kings or

legislative aides, and the Constitution forbids us from

pontificating about abstractions in the law or merely

giving advice about the potential legal deficiencies of

a law or policy when no ongoing controversy exists with

respect to that law or policy.

Incumaa v. Ozmint, 507 F.3d 281, 289 (4th Cir. 2007) (emphasis

added) (parallel citations omitted)); see also, e.g., Spencer v.

Kemna, 523 U.S. 1, 17 (1998) (finding capable of repetition, yet

evading review exception inapplicable, because prisoner whose

underlying sentence had expired challenging his parole revocation

had not “demonstrated a reasonable likelihood that he w[ould] once

again be paroled and have that parole revoked”);* Williams v.

* The United States Supreme Court also rejected the petitioner’s argument

that the possibility that a court could use the petitioner’s parole revocation

“to increase his sentence in a future sentencing proceeding” constituted a

collateral consequence sufficient to defeat mootness, “because [such an argument ]

was contingent upon [the petitioner] violating the law, getting caught, and being

convicted[,]” and noted that the petitioner “[was] able - and indeed required by

(continued...)

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Ozmint, 716 F.3d 801, 810 (4th Cir. 2013) (rejecting application of

capable of repetition, yet evading review exception, because

prisoner’s “argument that his claim [wa]s capable of repetition

rest[ed] either on mere speculation, or on the possibility that he

[would] violate prison rules in the future”); Moriello v. Board of

Immigr. Appeals, No. 1:22CV969, 2024 WL 1349588, at *7 (M.D.N.C.

Mar. 29, 2024) (unpublished) (Biggs, J.) (“[I]t is not reasonable

to expect [the p]laintiff to be subject to the same action again.

Making such a prediction assumes [the p]laintiff will commit

culpable conduct again in the future, which is an assumption the

Fourth Circuit consistently has refused to make. . . . As was true

in Incumaa, [the p]laintiff ‘holds the keys’ to remaining free from

further discipline. Incumaa, 507 F.3d at 289. . . . The onus of

another suspension is on [the p]laintiff and depends singularly on

her future behavior.”); Cole v. Jones, No. 5:18CV203, 2018 WL

7436964, at *1 (N.D. Fla. Nov. 27, 2018) (unpublished) (holding

that the petitioner did not meet the second “condition[] for the

‘capable of repetition, yet evading review’ exception to

apply, . . . because [the] petitioner cannot demonstrate there is

a reasonable expectation (as opposed to mere speculation) that the

circumstances for which he was charged will recur and again give

rise to discipline, much less that the circumstances rendering his

disciplinary proceeding constitutionally infirm will be repeated”),

4(...continued)

law - to prevent such a possibility from occurring.” Spencer, 523 U.S. at 14.

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recommendation adopted, 2019 WL 919583 (N.D. Fla. Feb. 25, 2019)

(unpublished).

Under the controlling authority of Spencer, Williams, and

Incumaa, Petitioner’s speculative prediction that he will commit

future disciplinary offenses that would subject him to disciplinary

proceedings where he would suffer due process violations does not

meet the “reasonable expectation” prong of the “capable of

repetition, yet evading review” exception to the mootness doctrine.

As a result, that challenge to his Petition’s mootness fails.

C. Collateral Consequences

Petitioner maintains that, “as a result of th[e] disciplinary

conviction [he is] now challenging . . ., [he] ha[s] and

continue[s] to suffer collateral consequences beyond the restored

good time.” (Docket Entry 11 at 13 (some commas, internal

quotation marks, and hyphen omitted).) In that regard, Petitioner

avers that 1) “[he] was demoted from minimum custody security where

[he was] eligible for work release (a liberty interest) . . . to

[m]edium [c]ustody [security] arbitrarily and capriciously around

April 2024,” all “without . . . notice” or a “hearing” (id. at 14),

2) “[he] was not allowed to participate in programs such as

vocational classes, recreational tournaments, etc., due to

requirements of being infraction free for certain periods of time”

(id.), 3) “[he] was not allowed to be a religious ‘faith helper’

for [his] religious community within the [prison] due to the

aforementioned infraction free requirements” (id.), and 4) “[he is]

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still, to this very day, being denied work release because of th[e]

wrongful conviction [at issue in the Petition]” (id.).

“Once [a] convict’s sentence has expired, . . . some concrete

and continuing injury other than the now-ended

incarceration . . . — some ‘collateral consequence’ of the

conviction — must exist if the suit is to be maintained.” Spencer,

523 U.S. at 7; see also Carafas v. LaVallee, 391 U.S. 234, 237

(1968) (holding that the petitioner satisfied case-or-controversy

requirement of Article III even after release from prison by

showing that conviction caused collateral consequences impacting

ability to vote, engage in certain businesses, serve as juror, or

hold public office). Although courts presume collateral

consequences arising from a criminal conviction, see Spencer, 523

U.S. at 12, no such presumption arises in the setting of habeas

petitions challenging prison discipline, see Diaz v. Duckworth, 143

F.3d 345, 346 (7th Cir. 1998) (holding that habeas petitioner

challenging prison discipline bore burden of proving collateral

consequences because “it cannot be said that most prison

disciplinary sanctions ‘do in fact entail adverse collateral legal

consequences’” (quoting Spencer, 523 U.S. at 12). Here, as the

following analysis details, Petitioner’s asserted “collateral

consequences” do not meet Article III’s case-or-controversy

requirement.

At the outset, the undersigned did not locate a Fourth Circuit

decision addressing the applicability of the collateral

consequences exception to mootness in the setting of a Section 2254

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petition challenging prison discipline where the prison has

restored all lost good time credits at issue. Other Circuits

appear to take differing approaches. For example, the Ninth

Circuit has entertained the notion that the collateral consequences

exception could apply to prison discipline cases even where

correctional authorities restored all lost good time credits. See

Wilson v. Terhune, 319 F.3d 477, 481-82 (9th Cir. 2003) (analyzing

whether “the denial of conjugal visits, [the petitioner’s] transfer

to [another p]rison, and the increase in his classification score”

constituted sufficient collateral consequences of prison

disciplinary conviction to defeat mootness (and deciding they did

not)). In contrast, the Seventh Circuit has interpreted Spencer as

ruling that the collateral consequences exception cannot apply in

the prison discipline context where prison authorities restored all

lost good time credits. See Johnson v. Finnan, 252 F. App’x 98, 99

(7th Cir. 2007) (“A federal court hearing a collateral attack under

28 U.S.C. § 2254 reviews custody (here, a revocation of good-time

credits), and when custody ends (here, by restoration of the

credits) the federal proceeding becomes moot. [The petitioner]

contends that he suffers collateral consequences, but that doctrine

is inapplicable when the custody stems from prison discipline. See

Spencer v. Kemna, 523 U.S. 1 (1998).” (emphasis in original)

(parallel citations omitted)); but see Cochran v. Buss, 381 F.3d

637, 641 (7th Cir. 2004) (evaluating whether the petitioner’s los[s

of] his preferred prison living arrangement, his prison job and his

eligibility for rehabilitative programs[,] and . . . damage[ to]

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his prison record” constituted “sufficient collateral consequences”

to overcome mootness (and holding they did not)).

Another judge of this Court recently ruled that a Section 2254

petition qualified as moot where “[the p]etitioner’s good time

credits ha[d] been restored, and he ha[d] received the remedy

available in th[e Section 2254] proceeding.” Rasul, 2023 WL

11833718, at *1. However, that case also noted that,

alternatively, “[the petitioner ] present[ed] no continuing

collateral consequence or cognizable injury absent the loss of good

time credits,” id. (citing Cochran, 381 F.3d at 641), thus allowing

for the possibility that the collateral consequences exception

conceivably could apply in the context of a Section 2254 challenge

to prison discipline involving restored good time credits. The

undersigned need not resolve the issue of the applicability of the

collateral consequences exception because, even assuming the

exception applies, Petitioner has not shown that his alleged

demotion from minimum custody security and inability to participate

in prison programs, serve as a faith helper, and engage in work

release qualify as sufficient collateral consequences to defeat

Respondent’s mootness arguments.

Petitioner asserts that “[he] was demoted from minimum custody

security where [he was] eligible for work release (a liberty

interest), without due process as [he] never received a notice of

demotion[, and he] never had a hearing in th[at] regard as prison

staff demoted [him] to [m]edium [c]ustody arbitrarily and

capriciously around April 2024.” (Docket Entry 11 at 14 (emphasis

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added) (comma omitted).) However, Petitioner has failed to show

that this alleged demotion arose because of the disciplinary

conviction he challenges in this action. The NCDAC’s Offense and

Disciplinary Report for the conviction in question reflects that

Petitioner received as punishment 30 days in RHDP (see Docket Entry

6-2 at 8), the loss of 40 days of sentence reduction credits (see

id.), 50 hours of extra duty (see id.), a 90-day suspension of

canteen, visitation, and telephone privileges (see id. at 9), and

60 days of limited withdrawal from his prison trust fund (see id.).

Notably, the line “DEMOTE TO:” does not contain any punishment.

(See id.) Moreover, Petitioner avers that the demotion occurred in

“April 2024” (Docket Entry 11 at 14 (emphasis added) (comma

omitted)), whereas his disciplinary conviction and sentencing took

place on March 18, 2024 (see Docket Entry 6-2 at 8). Simply put,

Petitioner has not shown that any alleged demotion to medium

custody security constituted a collateral consequence of his

disciplinary conviction. See Veal v. Jones, No. CIV-08-350, 2009

WL 365940, at *3 (W.D. Okla. Feb. 12, 2009) (unpublished) (“The

existing record does not reflect the reason for the decision at the

adjustment review to demote [the petitioner] Lo level

two. . . . [T]he petitioner has failed to prove that the

downgraded classification was the product of the disciplinary

conviction.”). Furthermore, even if Petitioner could connect his

alleged custody-level demotion to his disciplinary conviction,

courts have held that a prisoner’s reclassification does not

constitute a sufficient collateral consequence to defeat mootness.

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See Hall v. Kirkegard, No. CV 12-18, 2012 WL 1378104, at *2 (D.

Mont. Apr. 19, 2012) (unpublished) (“[A] change in classification

is not a sufficient adverse consequence to meet the

case-or-controversy requirement.”); Lira v. Director of Corr. for

State of California, Civ. No. C 03-3772, 2004 WL 1376517, at *2

(N.D. Cal. June 15, 2004) (unpublished) (“Allegations that a

[prison] rules violation finding will affect classification[ and]

institutional and housing assignments . . . involve discretionary

decisions too speculative to constitute sufficient proof of

collateral consequences.”).

Relatedly, Petitioner maintains that the prison has barred him

from participating in “work release because of []his wrongful

[disciplinary] conviction.” (Docket Entry 11 at 14.) Given that

Petitioner averred that his “demot[ion] from minimum custody

security . . . to [m]edium [c]ustody [security]” caused his

ineligibility for work release (id.), and Petitioner, as discussed

above, has failed to connect that alleged demotion to his

disciplinary conviction, he similarly cannot establish his

ineligibility for work release as a collateral consequence of that

conviction, see Hall, 2012 WL 1378104, at *2 (“[The p]etitioner

contends that his current classification level disqualifies him

from participating in the prison’s Criminal Thinking Errors

program, which he must complete before he can be eligible for

community placement. This argument fails because [the

p]etitioner’s ineligibility for the Criminal Thinking Errors course

is a consequence that flows directly from reclassification, and a

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change in classification is not a sufficient adverse consequence to

meet the case-or-controversy requirement.”).5

Lastly, Petitioner avers that he could not “participate in

programs such as vocational classes, recreational tournaments,

etc.,” or serve as “a religious ‘faith helper’ for [his] religious

community within the [prison]” because of “requirements of being

infraction free for certain periods of time.” (Docket Entry 11 at

14.) The loss of such opportunities remains too speculative to

qualify as a collateral consequence for three reasons. First, as

Petitioner has not explained how long he must remain infraction-

free to participate in those programs (see Docket Entries 1, 11),

and more than one year has passed since the disciplinary conviction

at issue, he has not shown that the disciplinary conviction still

disqualifies him for those programs. Second, Petitioner has not

established the absence, in the year since his disciplinary

conviction, of additional disciplinary convictions (or other

circumstances) that have rendered him ineligible for such programs.

See Lira, 2004 WL 1376517, at *2 (“Allegations that a [prison]

rules violation finding will affect . . . privileges . . . involve

discretionary decisions too speculative to constitute sufficient

5 Even if Petitioner could establish that his disciplinary conviction

caused his ineligibility for work release, doubt exists that such ineligibility

would qualify as a sufficient collateral consequence to defeat mootness. See

Johnson, 252 F. App’x at 99 (“[T]he only collateral consequence that [the

petitioner] identifies is a loss of prison wages. Money differs from custody;

indeed, the opportunity to earn wages while in prison is not a form of liberty

or property to which the due process clause applies. See Sandin v. Conner, 515

U.S. 472 (1995)[.]” (parallel citations omitted)); Cochran, 381 F.3d at 641

(“[The petitioner] alleges in general terms only that he lost . . . his prison

job . . . . Th[at] alleged deprivation[], however, [is] not [a] sufficient

collateral consequence[].”).

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proof of collateral consequences.”). Third, courts have held that

ineligibility for prison programs and other such privileges do not

involve a sufficient deprivation to constitute collateral

consequences to overcome mootness. See Cochran, 381 F.3d at 641

(“[The petitioner] alleges in general terms only that he

lost . . . his eligibility for rehabilitative programs . . . .

These alleged deprivations, however, are not sufficient collateral

consequences. See Moody v. Daggett, 429 U.S. 78, 88 n.9 (1976)

(stating that not every prison action that adversely affects the

prisoner requires due process, such as a transfer to a

substantially less agreeable prison and an unfavorable

classification for rehabilitative programs).” (parallel citations

omitted)); Rhode v. Superintendent, Indiana State Prison, No.

3:09CV239, 2009 WL 4671789, at *2 (N.D. Ind. Dec. 8, 2009)

(unpublished) (“That the [prison disciplinary hearing board]’s

finding of guilt might affect the [p]etitioner’s ability to earn

future educational credit time states no claim upon which relief

can be granted under § 2254.”).

Accordingly, the Court should dismiss the Petition as moot.

See, e.g., Prator v. Neven, No. 2:10CV1209, 2013 WL 3297173, at *1

(D. Nev. June 28, 2013) (unpublished) (“Due to the restoration of

the 90 days of good time credit, [the] petitioner’s claims are

moot, and the petition is dismissed with prejudice on this

basis.”); Holtz, 779 F. Supp. at 113 (“[T]he petitioner has

received the remedy he sought in his habeas petition, restoration

of the forty-five (45) days of good time credit he lost as a result

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of the defective prison disciplinary hearing . . .[, and

t]herefore, his petition is moot.” (capitalization omitted)).

IV. Conclusion

IT IS THEREFORE RECOMMENDED that Respondent’s Motion to

Dismiss (Docket Entry 5) be granted, and that the Petition (Docket

Entry 1) be dismissed as moot.

/s/ L. Patrick Auld

L. Patrick Auld

United States Magistrate Judge

May 5, 2025

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