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16-4217 - Jermel Pope v. Janet Perdue

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16-4217 - Jermel Pope v. Janet Perdue
May 3, 2018
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Filed opinion of the court by Judge Kanne. We DENY the Government's motion to dismiss Pope's case as moot, and VACATE and REMAND the district court's denial of Pope's habeas corpus petition. On remand, the district court shall transfer Pope's case to the sentencing court for further proceedings. IT IS FURTHER ORDERED that the BOP shall revise the date of the commencement of Pope's federal sentece to August 31, 2009, and reconsider Pope's request for retroactive designation in line with the Supreme Court's decision in Setser. Diane P. Wood, Chief Judge; Kenneth F. Ripple, Circuit Judge and Michael S. Kanne, Circuit Judge. [6922381-1] [6922381] [16-4217]
July 30, 2018
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ORDER: Footnote 1 at page 5 of the original opinion is STRICKEN and replaced with the following revised footnote 1: The Government’s reliance on Spencer v. Kemna’s mootness standard is misplaced. See 523 U.S. 1, 7 (1998). While Pope is no longer incarcerated, he continues to serve his sentence on supervised release – another form of custody. Trotter, 270 F.3d at 1152. Thus, Spencer, a case in which the petitioner’s sentence had already expired, does not apply. See Spencer, 523 U.S. at 7. The statute referred to on line 2 of the CONCLUSION at page 13 of the original opinion is revised from § 3538(e) to § 3583(e). Finally, the Respondent’s Petition for Panel Rehearing is DENIED. [6941662-1] [6941662] [16-4217]