United States District Court, D. Vermont
ORDER ADOPTING IN PART REPORT AND RECOMMENDATION
(DOCS. 69, 80, 84)
WILLIAM K. SESSIONS III DISTRICT COURT JUDGE
September 2016, Andre Rene Levesque, representing himself,
moved under 28 U.S.C. § 2255 to vacate his sentence.
(Doc. 69.) On March 7, 2016, he initially received a sentence
of time served, followed by a one-year term of supervised
release and, on July 25, 2016, subsequently received a
sentence of seven months’ imprisonment, with no further
period of supervised release, imposed following his admission
to violating a condition of his supervised release.
(See Docs. 51, 52, 63, 64.) The case was
automatically referred to United States Magistrate Judge John
Conroy pursuant to 28 U.S.C. § 636(b)(1) and Local Rule
73(f). Levesque also filed a direct appeal to the Second
Circuit Court of Appeals on August 9, 2016. (See
Doc. 65.) The government moved to deny or stay
Levesque’s motion § 2255 as premature. (Doc. 80.)
December 29, 2016, the Magistrate Judge issued a Report and
Recommendation recommending the government’s motion
seeking denial of Levesque’s motion as premature be
granted and Levesque’s motion be denied without
prejudice. (Doc. 84.) Under Federal Rule of Civil Procedure
72, Levesque’s objection was timely filed in January
2017. (Doc. 85.) On January 31, 2018, the Second Circuit
dismissed Levesque’s appeal for lack of subject matter
jurisdiction because he had served his sentence. (Doc. 87.)
district judge must make a de novo determination of
those portions of a magistrate judge’s report and
recommendation to which an objection is made. Fed R. Civ. P.
72(b)(3); 28 U.S.C. § 636(b)(1); Cullen v. United
States, 194 F.3d 401, 405 (2d Cir. 1999). The district
judge may “accept, reject, or modify, in whole or in
part, the findings or recommendations made by the magistrate
judge.” 28 U.S.C. § 636(b)(1); accord
Cullen, 194 F.3d at 405.
Conroy determined that Levesque’s motion was premature
because “typically [a] defendant must exhaust his
direct appeal before applying for habeas relief” and no
“extraordinary circumstances . . . justify deciding
Levesque’s Motion while his direct appeal remains
pending.” (Doc. 84 at 3, 5.) He therefore recommended
the court deny Levesque’s motion and grant the
government’s motion to the extent it seeks to deny
Levesque’s motion as premature. (Id. at 5.)
filed a handwritten objection asserting that “there is
some confusion” because his 2255 motion was filed to
“appeal” the March 7, 2016 sentencing, and not
his subsequent violation of supervised release, which led to
the July 25, 2016 sentencing, presumably the subject of his
August 2016 direct appeal. (Doc. 85 at 1.)
careful review of the file, the Report and Recommendation,
and Levesque’s objection, this court accepts Magistrate
Judge Conroy’s recommendation in so far as he
recommends that Levesque’s motion be denied. A review
of the Federal Bureau of Prisons Inmate Locator shows that
Levesque was released from federal custody on November 15,
2017. Because Levesque has been released from federal
custody, his 2255 motion is moot. See Chevron Corp. v.
Donziger, 833 F.3d 74, 124 (2d Cir. 2016) (finding that
a case “becomes moot only when it is impossible for a
court to grant any effectual relief whatever to the
prevailing party”) (emphasis and internal quotation
Magistrate Judge noted, the claims in Levesque’s motion
are “largely indecipherable.” (Doc. 84 at 2.) In
his objection, Levesque attempts to clarify that he is
challenging his March 7, 2016 sentence. Because
Levesque’s appeal has been dismissed, the
recommendation to deny his current motion because the appeal
was pending is no longer applicable. However, because
Levesque has now been released from federal custody, and is
not serving a supervised release term, “the Court can
no longer provide the relief sought . . . [and] the petition
must be dismissed as moot.” United States v.
Hey, No. 5:14-cr-28, 2016 WL 8849759, at *4 (D. Vt. Dec.
12, 2016). Although Levesque was “in custody” for
purposes of the jurisdictional custody requirement of 28
U.S.C. § 2255 at the time he filed his motion in
September 2016, see Scanio v. United States, 37 F.3d
858, 860 (“the habeas corpus statute confers
jurisdiction to district courts to entertain habeas petitions
for relief solely from persons who satisfy the status or
condition of being ‘in custody’ at the time the
petition is filed), and even if his challenge is to the March
7 sentence of a one-year term of supervised release, his
motion has been mooted by his release from federal custody,
including his supervised release term, see Id .
(“a petitioner under supervised release may be
considered ‘in custody’”). Levesque’s
claims are moot because the court cannot afford Levesque the
relief he seeks, namely that the court vacate his March 7,
2016 sentence of a one-year term of supervised release,
because that sentence was revoked on July 25, 2016, and no
federal sentence remains.
these reasons, the Report and Recommendation (Doc. 84) is
ADOPTED IN PART: Levesque’s § 2255 motion (Doc.
69) is DENIED. The government’s motion to stay or deny
as premature Levesque’s motion (Doc. 80) is DENIED AS
court declines to issue a certificate of appealability, which
may issue in a § 2255 proceeding “only if the
applicant has made a substantial showing of the denial of a
constitutional right.” 28 U.S.C. § 2253(c)(2).
Generally, a movant meets this burden by demonstrating that
“reasonable jurists could debate whether . . . the
[motion] should have been resolved in a different manner or
that the issues presented [a]re adequate to deserve
encouragement to proceed further.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000) (internal quotation
marks omitted). Levesque has not made this showing, and thus
the court will not issue a certificate of appealability.
 A challenge to his July 25, 2016
sentence would also be moot because he has served the entire
sentence of imprisonment and no supervised release term
remains. See Guzman v. United States, No. Crim.
1036, 2007 WL 1821698, at *1 (S.D.N.Y. June 26, 2007)
(holding § 2255 ...