                                                           [DO NOT PUBLISH]


               IN THE UNITED STATES COURT OF APPEALS

                       FOR THE ELEVENTH CIRCUIT           FILED
                        ________________________ U.S. COURT OF APPEALS
                                                           ELEVENTH CIRCUIT
                                                              JULY 18, 2008
                               No. 07-15047
                                                            THOMAS K. KAHN
                           Non-Argument Calendar
                                                                 CLERK
                         ________________________

                      D. C. Docket No. 05-00373-CV-T-N

JOSEPH EDWIN MITCHELL,


                                                           Petitioner-Appellant,

                                     versus

SCOTT MIDDLEBROOKS,
Warden,
MICHAEL ZENK,
Warden of the United States Prison
in Atlanta, Georgia,


                                                        Respondents-Appellees.


                         ________________________

                  Appeal from the United States District Court
                      for the Middle District of Alabama
                        _________________________

                                (July 18, 2008)
Before CARNES, MARCUS and WILSON, Circuit Judges.

PER CURIAM:

      Joseph Mitchell, a former federal prisoner proceeding pro se, appeals the

district court’s denial of his 28 U.S.C. § 2241 petition as moot. Mitchell contends

that, even though he has already been released from prison, his case is not moot

because the Bureau of Prisons improperly denied him a one year reduction to his

sentence, causing him to serve an extra year of prison time and delaying the

commencement of his supervised release.

                                         I.

      At the time Mitchell filed his § 2241 petition in the district court, he was

serving a forty-six month sentence, with three years of supervised release to

follow, for trafficking in counterfeit labels for copies of computer programs, in

violation of 18 U.S.C. § 2318. While incarcerated, Mitchell was initially advised

by the BOP that he was eligible for up to a one year reduction of his sentence if he

completed the prison’s residential drug abuse program. Mitchell entered the

program on April 1, 2004. Although Mitchell continued in the program, the BOP

withdrew its approval of any reduction of his sentence on that basis because it

determined that Mitchell’s prior felony conviction for DUI manslaughter




                                          2
constituted non-negligent homicide, which disqualified him for early release under

the criteria used by the BOP. Mitchell did complete the program.

      After unsuccessfully challenging that decision through the appropriate

administrative review process, Mitchell filed a § 2241 petition in the United States

District Court for the Middle District of Alabama. The petition requested

Mitchell’s “immediate release to community corrections to complete the

requirements of his early release pursuant to 18 U.S.C. § 3621(e).”

      While his § 2241 petition was pending before the district court, however,

Mitchell completed his full forty-six month sentence and was released from prison

on October 20, 2006. In light of those events, the magistrate judge issued a report

and recommendation suggesting that the district court dismiss Mitchell’s petition

as moot. The magistrate noted that Mitchell’s petition requested release to a

community corrections center for completion of the early release requirements but

that his sentence had already expired. Accordingly, the magistrate recommended

that the petition be dismissed because there was no longer a live case or

controversy.

      Mitchell objected to the magistrate judge’s report and recommendation,

arguing that his petition was not moot because, had he received the one year

sentence reduction, he would complete his supervised release a year earlier. He

                                         3
also requested permission to modify the request for relief in his habeas petition to

include the termination of his supervised release. The district court overruled

Mitchell’s objections, adopted the magistrate’s report and recommendation, and

denied Mitchell’s § 2241 petition as moot. Mitchell timely appealed.1

                                                 II.

       “The issue of whether a case is moot is a question of law that we review de

novo.” Mattern v. Sec’y for the Dep’t of Corr., 494 F.3d 1282, 1285 (11th Cir.

2007). The respondent carries the burden of establishing that a claim is moot. Id.

       Article III of the Constitution limits the jurisdiction of federal courts to the

consideration of “Cases” or “Controversies.” U.S. Const. art. III, § 2. “The

doctrine of mootness derives directly from the case or controversy limitation

because ‘an action that is moot cannot be characterized as an active case or

controversy.’” Soliman v. United States ex rel. INS, 296 F.3d 1237, 1242 (11th

Cir. 2002) (citation omitted). “[A] case is moot when the issues presented are no

longer ‘live’ or the parties lack a legally cognizable interest in the outcome.” Id.

(internal quotation marks and citation omitted) (alteration in original). Thus, if an

event occurring after the filing of the lawsuit deprives “the court of the ability to


       1
         Although the district court also denied Mitchell’s motion for a certificate of appealability,
this Court may nonetheless review the appeal because “a federal prisoner who proceeds under § 2241
does not need a COA to proceed.” Sawyer v. Holder, 326 F.3d 1363, 1364 n.3 (11th Cir. 2003).

                                                  4
give the plaintiff or appellant meaningful relief, then the case is moot and must be

dismissed.” Id. (internal quotation marks and citation omitted); see also Spencer

v. Kemna, 523 U.S. 1, 7, 118 S. Ct. 978, 983 (1998) (“Throughout the litigation,

the plaintiff ‘must have suffered or be threatened with, an actual injury traceable to

the defendant and likely to be redressed by a favorable judicial decision.’”

(citation omitted)).

      In Dawson v. Scott, 50 F.3d 884 (11th Cir. 1995), this Court addressed a

mootness argument similar to the one made by the government here. Dawson had

pleaded guilty to drug-related charges and was sentenced to a term of

imprisonment as well as three years of supervised release. Id. at 886. While still a

federal prisoner, Dawson filed a § 2241 petition seeking credit against his

sentence for the time he had spent in halfway and safe houses following his arrest.

Id. After the district court denied Dawson’s petition, he appealed. Id. Because

Dawson was subsequently released from prison, however, the government moved

this Court to dismiss the appeal as moot. Id. at 886 n.2. We rejected the

government’s mootness argument, noting that Dawson was “still serving his term

of supervised release, which is part of his sentence and involves some restrictions

upon his liberty.” Id. We held that Dawson’s appeal was not moot “[b]ecause

success for Dawson could alter the supervised release portion of his sentence.”

                                          5
Id.; see also United States v. Page, 69 F.3d 482, 488 n.4 (11th Cir. 1995) (holding

that an appeal was not moot where the defendants had been released from prison

but were still serving their terms of supervised release).

      The facts of this case are materially indistinguishable from Dawson.

Mitchell filed his § 2241 petition while he was still a federal prisoner and his

petition alleged that he was being forced to serve too much time in prison. As in

Dawson, Mitchell was released from prison and began serving his supervised

release during the pendency of the action. The fact that he was released from

prison, however, does not by itself render Mitchell’s petition moot because, as in

Dawson, the supervised release he is currently serving “is part of his sentence and

involves some restrictions upon his liberty.” Dawson, 50 F.3d at 886 n.2.

Moreover, although Mitchell’s original petition requested release, he has since

asked for permission to modify the request for relief to include the termination of

his supervised release. Success for Mitchell in his § 2241 petition could,

therefore, “alter the supervised release portion of his sentence.” Id.

      In support of its mootness argument, the government’s brief cites to United

States v. Johnson, 529 U.S. 53, 120 S. Ct. 1114 (2000), which the Supreme Court

issued after our Dawson decision. In Johnson, a federal prisoner was set free after

serving too much prison time. Id. at 54, 120 S. Ct. at 1116. The question before

                                          6
the Supreme Court was “whether the excess prison time should be credited to the

supervised release term, reducing its length.” Id. The Court interpreted the

language of 18 U.S.C. § 3624(e) to mean that supervised release “does not run

while an individual remains in the custody of the Bureau of Prisons.” Id. at 57,

120 S. Ct. at 1117–18. However, the Court in Johnson went on to observe that

“[t]here can be no doubt that equitable considerations of great weight exist when

an individual is incarcerated beyond the proper expiration of his prison term” and

noted that trial courts have discretion to modify the conditions and length of an

individual’s supervised release under § 3583(e). Id. at 60, 120 S. Ct. at 1119.

      The Supreme Court’s Johnson decision does not undermine our reasoning in

Dawson. Our rejection of the government’s mootness argument in Dawson hinged

upon the liberty restrictions that supervised release imposes as well as the fact that

success on appeal could have altered the supervised release portion of the

petitioner’s sentence. See Dawson, 50 F.3d at 886. Although Johnson stands for

the proposition that 18 U.S.C. § 3624(e) does not “by its own necessary operation .

. . reduce the length of a supervised release term by reason of excess time served

in prison,” the decision also recognized that sentencing courts have the authority

both to modify conditions of supervised release and to terminate supervised

release altogether after the completion of one year. Johnson, 529 U.S. at 60, 120

                                          7
S. Ct. at 1119; see also 18 U.S.C. § 3583(e)(1) & (2). Johnson did not, therefore,

alter our holding in Dawson that an appeal is not moot where a former prisoner is

still serving a term of supervised release, which imposes restrictions on his liberty

and could be altered following success on appeal.

       Although we express no views on the merits of the petition, we hold that

Mitchell’s § 2241 petition is not moot because it is possible he could receive a

reduced or modified term of supervised release from the sentencing court if he

succeeds in this habeas proceeding.2 We note that every other circuit to consider

the issue has reached the same result. See Johnson v. Pettiford, 442 F.3d 917, 918

(5th Cir. 2006); Levine v. Apker, 455 F.3d 71, 76–77 (2d Cir. 2006); United States

v. Larson, 417 F.3d 741, 747 (7th Cir. 2005); United States v. Castro-Rocha, 323

F.3d 846, 847 n.1 (10th Cir. 2003), abrogated on other grounds by Lopez v.

Gonzales, 549 U.S. 47, 127 S. Ct. 625 (2006); United States v. Molak, 276 F.3d

45, 48–49 (1st Cir. 2002); United States v. McCoy, 313 F.3d 561, 564 (D.C. Cir.

2002) (en banc); Gunderson v. Hood, 268 F.3d 1149, 1153 (9th Cir. 2001).

       REVERSED AND REMANDED.



       2
          Mitchell additionally contends on appeal that the rule of Heck v. Humphrey, 512 U.S. 477,
114 S. Ct. 2364 (1994), which requires a successful habeas petition before filing a § 1983 lawsuit,
constitutes a collateral consequence and therefore renders his claim not moot. Because we have
already determined that his petition is not moot, we need not address that argument.

                                                8
