Berry v. Fox

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT November 30, 2017
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Elisabeth A. Shumaker
Clerk of Court
DUANE LETROY BERRY,

Petitioner - Appellant,

v. No. 17-6192
(D.C. No. 5:17-CV-00202-R)
JOHN B. FOX, (W.D. Okla.)

Respondent - Appellee.
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ORDER AND JUDGMENT*
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Before KELLY, MURPHY, and MATHESON, Circuit Judges.**
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Petitioner - Appellant Duane Berry, appearing pro se, appeals from the district

court’s dismissal of his petition for habeas relief under 28 U.S.C. § 2241. Mr. Berry

was indicted on charges of “perpetrating false information and hoaxes” in violation

of 18 U.S.C. § 1038 in the Eastern District of Michigan. Order of Commitment to

Att’y Gen. (Doc. No. 45) at 2, United States v. Berry, No. 2:15-cr-20743 (E.D. Mich.

Aug. 30, 2016). That district court found that Mr. Berry suffered from a “mental

disease” which made him unable to “assist properly in his defense” and ordered him

*
This order and judgment is not binding precedent, except under the doctrines
of law of the case, res judicata, and collateral estoppel. It may be cited, however, for
its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R. 32.1.
**
After examining the brief and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
committed to the custody of the Attorney General and hospitalized to determine

whether he might attain capacity to permit further proceedings. Id. at 3–4. While he

was temporarily confined at the Federal Transfer Center in Oklahoma City, he filed

this habeas petition challenging his commitment. Berry v. Fox, No. CIV-17-202-R,

2017 WL 3203706, at *1 (W.D. Okla. June 30, 2017), report and recommendation

adopted, No. CIV-17-202-R, 2017 WL 3197239 (W.D. Okla. July 27, 2017).

Before the district court could rule on that petition, however, Mr. Berry was

transferred to a Michigan county jail. Id. The district court referred the petition to a

magistrate judge who recommended that the petition be dismissed without prejudice

as moot because Mr. Berry was no longer in the custody of the Bureau of Prisons

and, therefore, it could not order any “effectual relief.” Id. at *2 (quoting Griffin v.

Kastner, 507 F. App’x 801, 802 (10th Cir. 2013)); see Rumsfeld v. Padilla, 542 U.S.

426, 442 (2004).

As we understand it, Mr. Berry contends that he is only being detained

temporarily by Michigan and that he should be returned to federal custody so he may

challenge his detention. So construed, he does not need a certificate of appealability.

Montez v. McKenna, 208 F.3d 862, 867 (10th Cir. 2000). He argues that he was

unlawfully removed, that his removal violated his Fifth Amendment right to due

process, and that the district court had jurisdiction. Although jurisdiction attaches

under § 2241 where the inmate is confined when the petition is filed, the district

court’s order was undoubtedly correct that Mr. Berry’s transfer to state custody in

Michigan rendered the court incapable of ordering effectual relief vis-à-vis the FTC

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warden; accordingly, the petition was moot. See Griffin, 507 F. App’x at 802-03.

We affirm the dismissal without prejudice for substantially the same reasons as the

district court.

AFFIRMED. All pending requests for the court to take judicial notice are

DENIED.

Entered for the Court

Paul J Kelly, Jr.
Circuit Judge

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