Damian Marine v. Francisco J. Quintana, Fci McKean

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DLD-293 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 09-2348
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DAMIAN MARINE,
Appellant
v.
FRANCISCO J. QUINTANA, FCI MCKEAN
____________________________________
On Appeal from the United States District Court
for the Western District of Pennsylvania
(D.C. Civil No. 08-00333)
District Judge: Honorable Sean J. McLaughlin
____________________________________
Submitted for Possible Summary Action Pursuant to
Third Circuit LAR 27.4 and I.O.P. 10.6
August 20, 2009
Before: BARRY, AMBRO and SMITH, Circuit Judges
(Opinion filed: October 6, 2009)
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OPINION
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PER CURIAM
At the time he filed his petition for writ of habeas corpus pursuant to 28 U.S.C. §

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2241, Damian Marine was incarcerated at FCI-McKean in Pennsylvania. Marine had
been transferred to that facility from a halfway house in Brooklyn, New York, following
an adverse disciplinary hearing decision in which he was adjudicated guilty of failing to
submit a pay stub from his place of employment. The disciplinary hearing also resulted in
both a rescheduling of his provisional release date and a loss of thirteen days good time
credits.
In his habeas petition, Marine challenged the disciplinary proceeding on due
process grounds and demanded expungement of the relevant incident report,
compensatory damages for emotional distress, termination of his 3-year term of
supervised release, and immediate release from custody. The latter demand was attached
to Marine’s claim that had his provisional release date not been pushed back as a result of
the disciplinary decision, he would no longer be in custody.
In an exhaustive report and recommendation, the Magistrate Judge first determined
that Marine’s successful administrative appeal had rendered moot his claim for
expungement of the incident report. The Magistrate Judge next determined that Marine
had failed to exhaust his claim regarding the provisional release date, and that in any
event the claim lacked merit. The Magistrate Judge also determined that only the
sentencing court, the District Court for the Southern District of Florida, could modify
Marine’s term of supervised release, and that Marine’s claim for compensatory damages
based on emotional distress was precluded in a habeas proceeding by Preiser v.

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Rodriguez, 411 U.S. 475 (1973). The District Court adopted the Magistrate Judge’s
recommendation that the habeas petition be denied. Marine appealed, and the
Government filed a motion for summary affirmance.
We have jurisdiction over the appeal pursuant to 28 U.S.C. § 1291 and 28 U.S.C. §
2253(a). A certificate of appealability is not required to appeal from the denial of
Marine’s § 2241 petition. See Burkey v. Marberry, 556 F.3d 142, 146 (3d Cir. 2009).
We exercise plenary review over the District Court’s legal conclusions, and review its
factual findings for clear error. See Ruggiano v. Reish, 307 F.3d 121, 126 (3d Cir. 2002).
Summary affirmance is proper when “it clearly appears that no substantial question is
presented or that subsequent precedent or a change in circumstances warrants such
action.” Third Circuit I.O.P. 10.6.
We agree with the Government that events subsequent to his filing of the habeas
petition have rendered moot Marine’s primary requests for relief. See Burns v. Pa. Dep’t
of Corr., 544 F.3d 279, 283 (3d Cir. 2008). Specifically, his incident report was
expunged, his good time credits were restored, and he is no longer in custody. Moreover,
Marine’s claims concerning his term of supervised release and his alleged emotional
distress lack merit for substantially the reasons given in the Magistrate’s report, and they
do not present a “substantial question.”
Accordingly, we grant the Government’s motion for summary affirmance and will
affirm the judgment of the District Court.

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