United States District Court, S.D. Mississippi, Southern Division
REPORT AND RECOMMENDATION THAT RESPONDENT'S
MOTION TO DISMISS BE GRANTED AND THE PETITION FOR WRIT OF
HABEAS CORPUS PURSUANT TO 28 U.S.C. § 2241
C. GARGIULO, UNITED STATES MAGISTRATE JUDGE.
THE COURT is the pro se Petition of Robert Emmett
Hellmers, III (Petitioner) for Writ of Habeas Corpus under 28
U.S.C. § 2241. (ECF No. 5). At the time his Petition was
filed, Hellmers was a pretrial detainee at Lenoir Rowell
Criminal Justice Center in Pearl River County, Mississippi,
generally referred to as the Pearl River County Jail.
Respondent Beverly McGill has filed a Motion to Dismiss the
Petition as moot and provided proof that Petitioner is no
longer a pretrial detainee but has entered pleas of guilty.
(ECF No. 12). In a related case, the Pearl River County Jail
informed the Court by telephone that Petitioner has been
released from the Pearl River County Jail. In this case,
Petitioner did not respond to Respondent's Motion to
Dismiss or the Court's Order to Show Cause. He has not
filed a change of address. Having considered the submissions
by Respondent, the failure of Petitioner to respond, the
record, and relevant legal authority, the undersigned United
States Magistrate Judge recommends that Respondent's
Motion to Dismiss be granted because the Petition is moot and
Petitioner has failed to prosecute.
20, 2016, a grand jury in Pearl River County, Mississippi,
indicted Petitioner in a four-count indictment alleging
possession of weapons by a convicted felon. (ECF No. 12-1).
On September 2, 2016, Petitioner was indicted by a Pearl
River County grand jury in a four-count indictment alleging
possession of controlled substances with intent to
distribute. (ECF No. 12-3).
detained at the Pearl River County Jail, Petitioner filed a
civil action in this Court on May 9, 2016, requesting
“compensation and dismissal of charges based on false
imprisonment.” (ECF No. 1, at 1). See Hellmers v.
Pearl River County Sheriff's Dep't, Civil No.
1:16-cv-157-HSO-JCG (“Hellmers I”). Petitioner
complained that the conditions of his confinement were
unconstitutional and that an illegal search warrant was
executed against his phone. Petitioner alleged that he had
been in custody for 270 days since his arrest and asserted
his right to a speedy trial. (ECF No. 5, at 2).
Petitioner's claims requesting a speedy trial and release
from detention were severed and this habeas case opened.
1, 2017, Respondent filed a Motion to Dismiss the Petition as
moot because Petitioner pleaded guilty to Count One of each
indictment and thereby waived his allegations of speedy trial
violations. Respondent submitted evidence that in Pearl River
Circuit Court Cause No. 55:16-CR-48, Petitioner accepted a
guilty plea to the lesser included offense of disturbing the
peace, a misdemeanor, in violation of Mississippi Code
Section 97-35-15; the remaining three Counts were dismissed.
(ECF No. 12-2). In Pearl River Circuit Court Cause No.
55:16-CR-232, Petitioner accepted a guilty plea to the lesser
included offense of possession of a controlled substance, a
misdemeanor, in violation of Mississippi Code Section
41-29-139; the remaining three Counts were dismissed. (ECF
undersigned issued an Order to Show Cause on August 7, 2017,
requiring Petitioner to respond to Respondent's Motion to
Dismiss on or before September 7, 2017. (ECF No. 13). The
Order to Show Cause warned Petitioner that, if he did not
file a timely response, his habeas Petition was subject to
dismissal for failure to prosecute under Federal Rule of
Civil Procedure 41(b). Id. (citing Martinez v.
Johnson, 104 F.3d 769, 772-73 (5th Cir. 1997) (affirming
dismissal of habeas petition for failure to prosecute under
Rule 41(b)). The Order to Show Cause was mailed by certified
mail to Petitioner's last known address at the Pearl
River County Jail. The Pearl River County Jail received the
Order to Show Cause on August 11, 2017. (ECF No. 14).
omnibus hearing was set for August 23, 2017, in the related
case, Hellmers I. A writ of habeas corpus ad
testificandum issued to the warden of the Pearl River County
Jail to produce Petitioner for the omnibus hearing. Prior the
hearing, the Deputy Clerk received a telephone call from the
Pearl River County Jail advising that Petitioner had been
released. Petitioner did not appear at the omnibus hearing.
He did not respond to a post-hearing Order to Show Cause.
Petitioner submitted nothing to rebut the summary judgment
evidence submitted by the defendants. As a result,
Hellmers I was dismissed pursuant to Federal Rule of
Civil Procedure 41(b) for failure to prosecute and as barred
by 42 U.S.C. § 1997e(a) for failure to exhaust
pretrial prisoner's suit challenging his incarceration is
properly brought pursuant to 28 U.S.C. § 2241,
“which applies to persons in custody regardless of
whether final judgment has been rendered and regardless of
the present status of the case pending against him.”
Dickerson v. State of La., 816 F.2d 220, 224 (5th
Cir. 1987). The “purpose of the writ [filed pursuant to
' 2241] is not to examine the validity of any judgment,
but merely to inquire into the legality of a
detention.” Fain v. Duff, 488 F.2d 218, 222
(5th Cir. 1973) (citations omitted).
an action “is not moot simply because a § 2241
petitioner is no longer in custody, ” it is rendered
moot “when the court cannot grant the relief requested
by the moving party.” Salgado v. Fed. Bureau of
Prisons, 220 F. App'x 256, 257 (5th Cir. 2007)
(citing Bailey v. Southerland, 821 F.2d 277, 278
(5th Cir. 1987) (finding §2241 petition moot where
prisoner who asked to be released from confinement was
released from confinement)); see United States ex rel.
Lynn v. Downer, 322 U.S. 756, 756 (1944) (finding
petition for writ of certiorari moot where petitioner no
longer in respondent's custody); Salinas v. U.S.
Marshals Serv., 111 F. App'x 782, 783 (5th Cir.
2004) (“because [petitioner] has already been released
from federal custody, there is no relief this court can grant
. . .”).
Petition, Hellmers seeks a speedy trial and release from
detention. The Court cannot grant this relief. These requests
were rendered moot by Petitioner's guilty pleas and
release from the Pearl River County Jail. See Elmore v.
Ford, No. 2:11-cv-256-KS-MTP, 2012 WL 1715325 (S.D.Miss.
Apr. 17, 2012), report and recommendation adopted, 2012 WL
1715308 (S. D. Miss. May 14, 2012) (affirming petition as
moot where petitioner entered guilty plea, was sentenced, and
released from custody). Respondent's Motion to Dismiss
the Petition as moot should be granted.
this case exemplifies the type of action that warrants
dismissal under Federal Rule of Civil Procedure 41(b) for
failure to prosecute. See Link v. Wabash R.R. Co.,370 U.S. 626, 629-30 (1962); Larson v. Scott, 157
F.3d 1030, 1031 (5th Cir. 1998). It is evident that
Petitioner has abandoned this action. Petitioner did not
respond to Respondent's Motion to Dismiss, despite being
ordered to do so. Petitioner did not appear for the omnibus
hearing in Hellmers I. The Deputy Clerk was informed
by the Pearl River County Jail that Petitioner had been
released. Petitioner has not provided an updated address. He
was warned that failure to advise the Court of a current
address subjected his case to dismissal. (ECF No. 4, 8).
Petitioner has not filed any pleadings or otherwise inquired