Pro Se Chicago's Weblog

November 9, 2008

Federal Habeas NOT Moot if Released from Custody


Release from Custody (incarceration or parole) does NOT Cause a Petition to Federal Court for Habeas (regarding conviction and not solely sentence) to become Moot as there may be Collateral Consequences that keep the Controversy “live” Maintining the Federal Court Jurisdiction

over the Matter.

            The Federal District Court has jurisdiction of petitions for writs of habeas corpus under 28 U.S.C. § 2254 which requires the petitioner to be “in custody.” Jurisdiction is established for this purpose as long as the petitioner is in the custody of the state when the petition for writ of habeas corpus is filed. Carafas v. LaVallee, 391 U.S. 234, 238, 88 S.Ct. 1556, 1559, 20 L.Ed.2d 554 (1968) (overruling Parker v. Ellis, 362 U.S. 574, 80 S.Ct. 909, 4 l.Ed.2d 963 (1960)).

            Article III of the Constitution allows Federal Courts to adjudicate only actually, ongoing cases or controversies. See Americans United for Separation of Church and State v. Prison Fellowship Ministries, 509 F.3d 406, 420-421 (8th Cir. 2007); Potter v. Norwest Mortgage, Inc., 329 F.3d 608, 611 (8th Cir. 2003). “This case-or-controversy requirement subsists through all stages of federal judicial proceedings, trial and appellate” and, “[w]hen an action no longer satisfies the case or controversy requirement, the action is moot and a federal court must dismiss the action.” Potter v. Norwest Mortgage, Inc.,  supra at 611 [citations and internal quotations omitted] Therefore, there must be consideration given to whether or not a controversy still exists when a prisoner after filing or when filing a petition for writ of habeas corpus is no longer in custody. The United States Supreme Court has wrestled with this issue for decades. The inquiry was narrowed to consider the possibility of providing the petitioner further redress for the claims that have been raised. If this is impossible, the case is moot. The Court in Spencer v. Kemna, 523 U.S. 1, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998) found that once a habeas petitioner is released from custody, his case becomes moot, unless he can show that a writ of habeas corpus would still provide him some genuine benefit. This line of reasoning began decades before in the United States Supreme Court.  

            In St. Pierre v. United States, 319 U.S. 41, 63 S.Ct. 910, 87 L.Ed. 1199 (1943) the Court held that there were two exceptions to the mootness doctrine when the sentence of a petitioner for a write of habeas corpus expired. First is when the petitioner “could not have brought his case to this Court for review before the expiration of his sentence.” This applies when the sentence is so short that there is no realistic possibility of bringing the case to court prior to expiration of the sentence. In Sibron v. New York, 392 U.S. 40 at 52, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968), the Court noted that this was true in a six-month sentence for contempt despite the fact that the petitioner “took all steps to perfect his appeal in a prompt, diligent, and timely manner.” The Court in Sibron supra, at 53 further noted that: “As St. Pierre supra, clearly recognized, a State may not effectively deny a convict access to its appellate courts until he has been released and then argue that his case has been mooted by his failure to do what it alone prevented him from doing.”

            The second exception recognized in St. Pierre supraat 43, permits adjudication of the merits of a criminal case where “under either state or federal law further penalties or disabilities can be imposed . . . as a result of the judgment which has . . . been satisfied”.  St. Pierre supra at 43, implied that it was the burden of the petitioner to show the existence of collateral legal consequences.

            In Fiswick v. United States, 329 U.S. 211, 67 S.Ct. 224, 91 L.Ed. 196 (1946) the Court held that a criminal case had not become moot upon release of the prisoner because the petitioner, an alien, might be subject to deportation for having committed a crime of “moral turpitude”. The Court also pointed out that if the petitioner should in the future decide he wanted to become an American Citizen, he might have difficulty proving that he was of “good moral character.”

            The Court Ginsburg v. State of New York, 390 U.S. 629, 633, 99 S.Ct. 1274, 1277, 20 L.Ed.2d 195, n. 2 (1968)  held that the mere possibility that the Commissioner of Buildings of the Town of Hempstead, New York, might “in his discretion” attempt in the future to revoke a license to run a luncheonette because of a single conviction for selling relatively inoffensive “girlie” magazines to a 16-year-old boy was sufficient to preserve a criminal case from mootness.

In United States v. Morgan, 346 U.S. 502, 74 S.Ct 247, 98 L.Ed. 248 (1954) the Court

ruled that collateral consequences should be considered in determining mootness.

 

Although the term has been served, the results of the conviction may persits. Subsequent convictions may carry heavier penalties, civil rights may be affected. As the power to remedy an invalid sentence exists, we think, respondent is entitled to an opportunity to attempt to show that this conviction was invalid. Morgan at 512-513 supra.

 

The Court in Sibron at 55 supra, re-iterated that this inquiry was made a presumption in a

previous decision: “[I]n Pollard v. United States, 352 U.S. 354, 77 S.Ct 481, 1 L.Ed.2d 393 (1957), the Court  abandoned all inquiry into the actual existence of specific collateral consequences and in effect presumed that they existed.” [emphasis added]

 

                        The Sibron Court clarified the constitutional importance of giving the petitioner his day in court on a habeas corpus petition after release from custody, in the face of any direct or collateral consequences.

 

The Court thus acknowledged the obvious fact of life that most criminal convictions do in fact entail adverse collateral legal consequences (FN See generally Note, 53 Va.L.Rev. 403 (1967).) The mere ‘possibility’ that this will be the case is enough to preserve a criminal case from ending ‘ignominiously in the limbo of mootness’ Parker v. Ellis, 362 U.S. 574, 577, 80 S.Ct 909, 911, 4 L.Ed.2d 963 (1960) (dissenting opinion). Sibron supra,at 55. [emphasis added]

 

[I]t is far better to eliminate the source of a potential legal disability than to require the citizen tol suffer the possibly unjustified consequences of the disability itself for an indefinite period of time before he can secure adjudication of the State’s right to impose it on the basis of some past action. Df. Peyton v. Rowe, 391 U.S. 54, 64, 88 S.Ct. 1549, 20 L.Ed.2d 426 (1968) (FN This factor has clearly been considered relevant by the Court in the past in determining the issue of mootness. See Fiswick v. United States, 329 U.S. 211, 221-222, 67 S.Ct. 224, 229-230, 91 L.Ed. 196 (1946). Siborn supra,at 56. [emphasis added]

 

None of the concededly imperative policies behind the constitutional rule against entertaining moot controversies would be served by a dismissal in this case. There is nothing abstract, feigned, or hypothetical about Sibron’s appeal. Nor is there any suggestion that either Sibron or the State has been wanting in diligence or fervor in the litigation. Sibron supra,at 57.

 

St. Pierre v. United States, supra, must be read in light of later cases to mean that a criminal case is moot only if it is shown that there is no possibility that any collateral legal consequences will be imposed on the basis of the challenged conviction. Sibron supra,at 57. [emphasis added]

 

The Court therefore concluded that analogously Sibron’s petition for writ of habeas corpus was not moot because he “has a substantial stake in the judgment of conviction which survives the satisfaction of the sentence imposed on him. Sibron supra,at 57-58. Citing Fiswick supra, at 222.

            Subsequent release of the petitioner does not oust the court of statutory jurisdiction because with a conviction there are presumed collateral consequences that persists after termination of sentence. Carafas. at 237-238 supra. [including inability to engage in certain businesses, inability to vote, inability to serve as official of labor union, inability to serve as juror, impeachment of character, enhancement of future sentence, etc. depending on laws of state]  Even in the case of a non-felony criminal contempt conviction the 5th Circuit Court of Appeals held that even the direct consequence of a fine constitutes consequences that persists after termination of sentence. Port v. Heard, 764 F.2d 423 (1985).

            In Lane v. Williams, 455 U.S. 624, 102 S.Ct. 1322, 71 L.Ed.2d 508 (1982), the U.S. Supreme Court narrowed the presumed collateral consequences doctrine so that termination of sentence did not oust statutory jurisdiction when the issue presented in the petition for habeas corpus involved the conviction and not specifically only the sentence. As the issue of the sentence no longer existed if the petitioner was released from custody (incarceration or parole), then the petition for habeas corpus became moot under the specific circumstance that the petitioner did not question the validity of his conviction, but only applied for the writ based on his sentence.

            In Spencer v. Kemna, 523 U.S. 1, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998), the Court further narrowed the presumed collateral consequences doctrine stating that the presumption of collateral consequences to conviction do not flow to parole violations in order to satisfy Article III injury-in-fact requirement for the Court to retain jurisdiction.

           The U.S. Supreme Court ruled that:

The petitioner in this case was sentenced in 1960. He has been attempting to litigate his constitutional claim ever since. His path has been long-partly because of inevitable delays in our court processes and partly because of the requirement that he exhaust state remedies. He should not be thwarted now and required to bear the consequences of assertedly unlawful conviction simply because the path has been so long [seven years] that he has served his sentence. The federal habeas corpus statute does not require this result, and Parker v. Ellis must be overruled. Carafas supra, at 240. [emphasis added]

 

            Therefore, the line of reasoning in the United States of Supreme Court in deciding whether or not a “live” controversy still exists after a petitioner for a writ of habeas corpus has been released from custody, firmly established the principle that criminal convictions entail collateral consequences that keep the controversy “live” after release when the issues in the habeas petition concern the  conviction, although not when the issues pertain solely to the sentence, nor when the conviction is in regards to a parole violation. 

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