and 21-1854 DARRYL NEWKIRK v. Superintendent Huntingdon Sci

NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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Nos. 21-1739, 21-1787 and 21-1854
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DARRYL NEWKIRK,
Appellant in No. 21-1739
TUCKER GINN,
Appellant in No. 21-1787
BENNIE ANDERSON,
Appellant in No. 21-1854
v.
SUPERINTENDENT HUNTINGDON SCI;
SECRETARY PENNSYLVANIA DEPARTMENT OF CORRECTIONS;
ATTORNEY GENERAL PENNSYLVANIA
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On Appeal from the United States District Court
For the Middle District of Pennsylvania
(D.C. Nos. 4-21-cv-00088, 1-21-cv-00508 and 3-21-cv-00136)
District Judges: Honorable Matthew W. Brann,
Honorable Jennifer P. Wilson
and Honorable Malachy E. Mannion
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Argued
June 29, 2023
Before: JORDAN, KRAUSE and SMITH, Circuit Judges
(Filed: July 31, 2023)
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Samuel G. Saylor [ARGUED]
Office of Federal Public Defender
1001 Liberty Avenue
1500 Liberty Center
Pittsburgh, PA 15222
Counsel for Appellants
Jeffrey Paladina
Pennsylvania Department of Corrections
Office of Chief Counsel
1920 Technology Parkway
Mechanicsburg, PA 17050
Counsel for Appellees Superintendent Huntingdon SCI
And Secretary Pennsylvania Department of Corrections
Ronald Eisenberg [ARGUED]
Office of Attorney General of Pennsylvania
1600 Arch Street – Suite 300
Philadelphia, PA 19103
Counsel for Appellee Attorney General Pennsylvania
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OPINION∗
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JORDAN, Circuit Judge.
Darryl Newkirk, Tucker Ginn, and Bennie Anderson (collectively, the
“Appellants”) are three inmates serving life sentences at SCI Huntingdon for murder
convictions. In early 2021, approximately one year after the onset of the global COVID-
19 pandemic, the Appellants each filed separate pro se habeas corpus petitions pursuant
to 28 U.S.C. § 2254, arguing that, given the pandemic, their serious medical conditions
∗ This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7,
does not constitute binding precedent.

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combined with inadequate public health measures at SCI Huntingdon warranted their
release from custody.1 The relief they sought was home confinement until the pandemic
subsided. (See App. at 34 (Anderson “seeking to be home confined until the risk of the
COVID 19 virus [h]as been eradicated”); App. at 40 (Ginn requesting “to be home
confined during the COVID 19 pandemic”); App. at 48-49 (“The only relief sought by
[Newkirk] is to be released from prison to home confinement until the COVID 19 virus
and the new strain is eradicated.”).)
None of the Appellants pursued their claims in state court proceedings, and the
District Court dismissed their petitions without prejudice for failure to exhaust state
remedies. (See App. at 7 (“For the foregoing reasons, Anderson’s petition for writ of
habeas corpus proceeding under 28 U.S.C. § 2254 is denied without prejudice due to his
failure to exhaust his available state court remedies.”); App. at 20 (“For the foregoing
reasons, Ginn’s petition for writ of habeas corpus proceeding under 28 U.S.C. § 2254 is
denied without prejudice due to his failure to exhaust his available state court
remedies.”); App. at 27-28 (denying Newkirk’s petition as “it [was] clear from the record
1 Newkirk filed his petition on January 11, 2021. He has been incarcerated for
over twenty years and contends that his unspecified “underlying health conditions” make
remaining in prison a “possible death sentence” if he were to contract COVID-19. (App.
at 47-48.)
Ginn filed his petition on March 22, 2021. He has been incarcerated for almost
three decades, and he suffers from several health problems. He contends that
“[c]ontracting COVID 19 in prison would be a [d]eath [p]enalty.” (App. at 40 (emphasis
removed).)
Anderson filed his petition on January 25, 2021. He too suffers from “numerous
health impairments[.]” (App. at 33.) He contends that he “is of the group most likely to
perish should [he] be infected with the COVID 19 virus.” (App. at 33.)

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and the state court electronic docket that [Newkirk] ha[d] not pursued any relief in the
state court”).) We granted a certificate of appealability limited to whether the District
Court should have stayed the Appellants’ habeas petitions rather than dismissing them.2
We also consolidated the three appeals and appointed counsel.3
Having considered the matter at length, we conclude that these appeals are moot
because the pandemic has subsided, and “changes in circumstances that prevailed at the
beginning of the litigation have forestalled any [occasion] for meaningful relief.” Jersey
Cent. Power & Light Co. v. New Jersey, 772 F.2d 35, 39 (3d Cir. 1985). Although
exceptions to mootness exist, none apply here. See In re Surrick, 338 F.3d 224, 230 (3d
Cir. 2003) (noting that one exception to mootness is “whether the dispute is of such a
nature that it is capable of repetition yet evading review”). In the present context,
“mootness concerns itself with … whether the same precise situation – the pandemic
such as it presented itself in 2020 and 2021 – will occur again[.]” Clark v. Governor of
N.J., 53 F.4th 769, 778-79 (3d Cir. 2022). When the Appellants filed their habeas
petitions in early 2021, COVID-19 presented a serious risk to people with significant
underlying health problems. Since then, “[i]t is absolutely clear that” “the same
pandemic conditions we faced in 2020-21” are no longer extant. See id. (“Our
knowledge of the virus and its vectors of transmission, the rollout of vaccines, and the
2 The District Court had jurisdiction under 28 U.S.C. §§ 2241 and 2254. We
exercise appellate jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253.
3 Federal Public Defender Samuel G. Saylor, Esq. has our thanks for his excellent
advocacy in this matter.

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availability of therapeutic responses to infection have totally changed the nature of the
disease itself, our understanding of it, and our response to it.”).
Given that change in circumstances, the foundation for the Appellants’ habeas
petitions – that COVID-19 poses a mortal health threat – is gone. See City of Erie v.
Pap’s A.M., 529 U.S. 277, 287 (2000) (“[A] case is moot when the issues presented are
no longer ‘live’ or the parties lack a legally cognizable interest in the outcome.”) (internal
quotation marks and citation omitted). As such, it is “impossible for the court to grant
‘any effectual relief whatever’ to [the Appellants.]” Id. Although the immediate relief
the Appellants seek is a determination of whether the District Court should have stayed
their habeas petitions rather than dismissing them, the overall relief sought is home
confinement until the pandemic subsides, which it has. Any opinion by this Court as to
whether the District Court should have stayed the petitions rather than dismissing them
would be purely advisory. See id. (noting that a court opinion is advisory when it cannot
grant effectual relief to the prevailing party). Thus, we will dismiss the appeals as moot.
I. C ONCLUSION
For the foregoing reasons, the appeals shall be dismissed.

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