[00:00:00] Speaker 00: Good morning, Your Honors. [00:00:01] Speaker 00: May it please the Court? [00:00:02] Speaker 00: Morning. [00:00:03] Speaker 00: I'm Assistant Federal Public Defender Keith Hilzendegger. [00:00:07] Speaker 00: I represent the petitioners in this case, Michael Duran and Grace Pinson. [00:00:12] Speaker 00: I'm going to try and save three minutes for rebuttal, but in light of what I'm about to say next, we may not even need that amount of time. [00:00:23] Speaker 00: I want to discuss two issues this morning. [00:00:27] Speaker 00: First, mootness. [00:00:28] Speaker 00: and then the summary dismissal of Mr. Duran's habeas petition. [00:00:34] Speaker 00: I'm going to come right out of the gate and say I agree with the government, based on the 28-J letter that it filed on Wednesday, that Ms. [00:00:44] Speaker 00: Pinson's appeal is moot under this Coors case law, the Dilley versus Gun case that we both have relied on. [00:00:54] Speaker 00: Because the government has informed the court that Ms. [00:00:57] Speaker 00: Pinson has been reclassified and transferred to a prison where she is unlikely to be subject to solitary confinement in the same way that she was at USP Tucson, that makes her appeal moot. [00:01:12] Speaker 00: I think that there's some question in my mind as to whether Mr. Duran's appeal is also moot for the same reason. [00:01:20] Speaker 01: What's your best argument in his case, since we don't have a 28-day letter about him, what's your best case? [00:01:29] Speaker 01: Obviously, a retransfer to Tucson cannot be speculative. [00:01:34] Speaker 01: And from my reading of it, that's what you've got here. [00:01:38] Speaker 01: What's your best argument that this is capable of repetition? [00:01:41] Speaker 00: Your Honor, I was going to point to some facts that make Mr. Duran's situation sound a lot like Ms. [00:01:49] Speaker 00: Pinson's. [00:01:50] Speaker 00: The docket in this case shows that Mr. Duran was transferred after the district court ruled against him, first to USP Lee, and then when this court appointed counsel and directed briefing of certain issues in November of last year, he was at USP Pollock in Louisiana. [00:02:10] Speaker 00: Mr. Duran is now at an FCI in New Hampshire. [00:02:15] Speaker 00: The only information I have about classification, apart from what the government knows on its own, is that both FCI El Reno, where Ms. [00:02:23] Speaker 00: Pinson is, and FCI Berlin in New Hampshire, where Mr. Duran is, are described by the Bureau of Prisons on its website as a medium security facility with a minimum security adjacent satellite camp. [00:02:37] Speaker 00: And if the reclassification of Ms. [00:02:42] Speaker 00: Pinson [00:02:44] Speaker 00: is the reason that she was transferred to an FCI. [00:02:46] Speaker 00: It seems plausible to me that Mr. Duran's transfer to an FCI is for the same reason. [00:02:55] Speaker 00: I don't know if that's true. [00:02:57] Speaker 00: I did point to a line and an order in Mr. Duran's parallel civil case that this court took judicial notice of where the district court said that it was possible that Mr. Duran would be returned to USB Tucson because he has family [00:03:14] Speaker 00: in the area. [00:03:16] Speaker 00: The only family of Mr. Duran's that I'm aware of. [00:03:18] Speaker 01: But you would agree, would you not counsel, that with respect to Mr. Duran, you still have to show that this is not too speculative. [00:03:28] Speaker 01: That's what I struggle with here, even without a change of classification as you had in the Pinson case. [00:03:38] Speaker 01: It just seems so highly speculative. [00:03:41] Speaker 01: I don't see how you get around the mutinous problem. [00:03:44] Speaker 00: Your Honor, candidly, the only thing I have to rely on in the record here is the district court's finding in the parallel civil case that it was not speculative. [00:03:53] Speaker 00: The district court made no such finding in the case that's directly under review here, because instead what it did is it dismissed his entire petition summarily on the ground that his claims were not cognizable in habeas proceedings. [00:04:08] Speaker 00: The court, of course, doesn't need to reach that question because that's [00:04:13] Speaker 00: more akin to a 12b6 question than a Article III jurisdictional question, which it makes sense. [00:04:18] Speaker 01: So are you saying then we don't need to reach the, what I thought was your second issue, whether or not these cases can sound in habeas since you're talking about the conditions of confinement as opposed to release? [00:04:31] Speaker 01: Is that correct? [00:04:33] Speaker 00: I think it makes sense as the way that I understand federal courts to process cases, you talk about [00:04:41] Speaker 00: jurisdiction first, and a component of jurisdiction is mootness, and if the court thinks that Mr. Duran's case is moot, then it doesn't need to reach the cognizability question. [00:04:51] Speaker 01: Okay, so basically, if I understand you correctly, you are, of course, with respect to Pignon, you're saying that's done, but if we find that on Duran's case, it's also moot, that's the end of the case, right? [00:05:04] Speaker 00: Yes, I agree. [00:05:05] Speaker 00: I agree with that, Your Honor. [00:05:08] Speaker 00: And if the court has no other questions about mootness, I'm happy to talk about the cognizability question if the court has questions about that. [00:05:19] Speaker 00: I don't think so. [00:05:22] Speaker 00: Like I said, Your Honor, I didn't think I'm with need all of the time. [00:05:25] Speaker 00: So thank you, Your Honor. [00:05:26] Speaker 00: Well, just in case you want to come back, you have nine minutes for rebuttal. [00:05:29] Speaker 00: Well, I will come back if you ask me to, but I don't think I have anything to add. [00:05:33] Speaker 00: I don't think we will. [00:05:46] Speaker 00: May it please the court? [00:05:47] Speaker 00: Good morning. [00:05:48] Speaker 00: My name is Craig Russell, appearing on behalf of the United States. [00:05:51] Speaker 01: You don't have much work to do here.