We post news and comment on federal criminal justice issues, focused primarily on trial and post-conviction matters, legislative initiatives, and sentencing issues.
DELAY IS VICTORY FOR THE GOVERNMENT
Apropos of yesterday’s update, the government’s enjoyment of a presumption of regularity usually leads to a court granting it as many extensions of time to answer prisoners’ petitions as it requests, and for as long as the government wants.
This almost unchecked ability to run out the clock, routinely overlooked by courts that pretend a decision within a year is a “swift and imperative remedy”, has become a potent tool in a U.S. attorney’s litigation toolbox.
Anthony Fortner brought a 28 USC § 2241 habeas corpus action against the Bureau of Prisons, claiming that the BOP wrongfully refused his request to properly award and apply additional First Step Act time credits for 543 days he had been incarcerated in Texas. Tony asserted that, had BOP properly applied the credits he earned in Texas, he would have qualified for release to home confinement when he filed his habeas petition in June 2024.
The district court dismissed the habeas for lack of jurisdiction. That’s a topic in itself that I won’t get into here. Today’s issue is mootness.
While on appeal, Tony was moved to a halfway house (where he will be for 27 months). Because of that, last week, the 8th Circuit dismissed his habeas corpus motion as moot.
Transfer to a halfway house “is precisely the relief his habeas petition requested and the BOP previously denied,” the Circuit observed. “The government argues the appeal has become moot. It is well-established that an appeal should… be dismissed as moot when, by virtue of an intervening event, a court of appeals cannot grant any effectual relief whatever in favor of the appellant.”
Tony opposed dismissal, arguing that the capable-of-repetition-yet-evading-review doctrine, which often defeats a mootness claim, should apply because claims like his often recur. But the “capable-of-repetition” exception is an exception for a good reason: it applies only in exceptional situations, the 8th ruled, where “(1) the challenged action is in its duration too short to be fully litigated prior to cessation or expiration; and (2) there is a reasonable expectation that the same complaining party will be subject to the same action again.”
In Tony’s case, the Circuit ignored the first standard but focused on the second, ruling that there was no reasonable expectation that he would again be subject to the same deprivation of time credits.
Tony filed his habeas 23 months ago. The 8th’s decision underscores how courts’ inherent docket delays benefit the home team and can make the prisoner’s task in obtaining prompt review of a BOP decision a daunting one.
Fortner v. Eischen, Warden, Case No. 24-3596, 2026 U.S.App. LEXIS 7413 (8th Cir. March 13, 2026)
~ Thomas L. Root