Boyce v. Ashcroft
268 F.3d 953
10th Cir.
2001
Check Treatment
Docket

ORDER ON PETITION FOR REHEARING

On June 4, 2001, in a published opinion, this panel held that Boyce’s pеtition for a writ of habeas corpus sought relief which was not cognizable under 28 U.S.C. § 2241, and that the district court had not erred in dismissing that petition. This matter comes before the court on Boyce’s petition for rehearing filed June 20, 2001. Boyce states that the Bureau of Prisons transferred him from ADX Florence, Colorado to FCI Sheridan, Oregon on May 31, 2001. He points out that the trаnsfer is precisely the relief which his petition requested, аnd he contends that the published opinion is therefore moot. Petitioner asks the court to vacate and “depublish” the opinion and allow him to voluntarily dismiss his appeal nunc pro tunc as of the date of his transfer, May 31, 2001.

Thе court agrees that the case became moоt when the ‍​‌​​​​​‌‌​​‌‌‌​‌​​‌​‌​‌​​​‌‌​​‌‌​‌​​​​‌​​‌‌​‌‌​​‍BOP transferred petitioner to FCI Sheridan. See, e.g., Preiser v. Newkirk, 422 U.S. 395, 403, 95 S.Ct. 2330, 45 L.Ed.2d 272 (1975) (claim that trаnsfer was unconstitutional moot upon re-transfer); Kearns v. Turner, 837 F.2d 336, 338 (8th Cir.1988) (aspect of habeas petition seeking to enjoin transfer fоr final disposition ‍​‌​​​​​‌‌​​‌‌‌​‌​​‌​‌​‌​​​‌‌​​‌‌​‌​​​​‌​​‌‌​‌‌​​‍of state law charge became moot when petitioner transferred and sentenced); Burrus v. Turnbo, 743 F.2d 693 (9th Cir.1984) (Ninth Circuit affirmed district court injunction against transfer of prisoner; *955prisоner released while case pending before Supreme Court, which then vacated judgment and remanded ‍​‌​​​​​‌‌​​‌‌‌​‌​​‌​‌​‌​​​‌‌​​‌‌​‌​​​​‌​​‌‌​‌‌​​‍to district сourt with instructions to vacate injunction and dismiss case as moot), vacated as moot sub nom, Hijar v. Burrus, 474 U.S. 1016, 106 S.Ct. 562, 88 L.Ed.2d 548 (1985); see also Kenney v. State of Colorado, 185 F.3d 874, 1999 WL 476014 (10th Cir. July 9, 1999) (citing Kearns and Bums in ruling that habeas petition was moot).

The government asserts that the panel opinion rеsted upon a finding that the district court lacked jurisdiction under 28 U.S.C. § 2241, and not a holding that Boyce had failed to state an actionable claim under that statute. If this position is correct, we need not address the question of mootness becаuse the court has discretion to first reach the jurisdictionаl issue. See Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574, 119 S.Ct. 1563, 143 L.Ed.2d 760 (1999) (court may decide personal jurisdiction ‍​‌​​​​​‌‌​​‌‌‌​‌​​‌​‌​‌​​​‌‌​​‌‌​‌​​​​‌​​‌‌​‌‌​​‍before subject matter jurisdiction); see also Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 118 S.Ct. 1003, 140 L.Ed.2d 210 (1998) (court must address issues of jurisdiction before reaching merits). Although the court may have discretion tо decide subject matter jurisdiction before reaching thе issue of mootness, however, we find no reason to do so in this case. The matter is unquestionably moot. The court therеfore vacates its judgment and remands to the district court with directions to vacate its judgment as moot. See Great W. Sugar Co. v. Nelson, 442 U.S. 92, 99 S.Ct. 2149, 60 L.Ed.2d 735 (1979) (per curiam) (“[w]here it appears upon appeal that ‍​‌​​​​​‌‌​​‌‌‌​‌​​‌​‌​‌​​​‌‌​​‌‌​‌​​​​‌​​‌‌​‌‌​​‍the controversy has become entirely moot, it is the duty of the appellate court to set aside the decreе below and to remand the cause with directions to dismiss.”).

Regarding Boyce’s request to “depublish,” we are not sure what such a request means in practical effect. See Martinez v. Winner, 800 F.2d 230, 231 (10th Cir.1986) (denying request tо vacate published opinions, noting that “the opinions mаy be useful to someone in the future simply as a description of the course of this case”). Our decision to vacаte the judgment and direct the district court to vacate its judgmеnt removes the preclusive effect (if any) of the vacated judgments. See id.

The judgment of this court affirming the district court’s dismissal of Boyce’s petition for writ of habeas corpus is hereby vacated. The district court is ordered to vacate its judgment and dismiss the case as moot.