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holding that any "possible civil disabilities that the petitioner may suffer in the future and that would keep the controversy alive would result from the 'underlying conduct that formed the basis for the parole violation,' not from the denial of a revocation hearing"
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03 Civ. 9116 (SHS) (JCF).
April 13, 2005
REPORT AND RECOMMENDATION
Ted Caldwell brings this amended petition for a writ of mandamus pursuant to 28 U.S.C. § 1361 and writ of habeas corpus pursuant to 28 U.S.C. § 2241. The petitioner contends that (1) he has not received a parole revocation hearing since he has been in federal custody; (2) he should receive credit against his sentence for the time spent in a drug rehabilitation program; and (3) he has been incarcerated beyond the term of his sentence and should be released. The respondent opposes the petition on the ground that it is moot. For the reasons set forth below, I recommend that the petition be dismissed.
Background
On March 12, 1980, Ted Caldwell was sentenced to five years in prison and three years of special parole on the basis of a conviction for Unlawful Possession with Intent to Distribute a Controlled Substance in violation of 21 U.S.C. § 841(a). (Certificate of Douglas W. Thiessen, Assistant General Counsel for the United States Parole Commission (the "Commission") dated July 21, 2004 ("Thiessen Cert."), Exh. B at 15-16). He was released on August 26, 1983 and began to serve his special parole term on July 24, 1984. (Thiessen Cert., Exh. B at 16, Caldwell v. Spears, 973 F. Supp. 406, 406 (S.D.N.Y. 1997). The petitioner was then arrested in January 1985 for a drug-related crime.Caldwell, 973 F. Supp. at 406. On May 17, 1985, he pled guilty to the crime of Possession with Intent to Distribute Heroin in violation of 21 U.S.C. § 841(a) in the Southern District of New York and was sentenced to six years in prison followed by five years of special parole. (Thiessen Cert., Exh. A). The petitioner was released from incarceration under the 1985 sentence on December 15, 1991 (Thiessen Cert., Exh. B at 11) and began serving the five-year special parole from the same sentence on October 31, 1992. (Thiessen Cert., Exh. B at 12). Caldwell, 973 F. Supp. at 407.
The petitioner violated the terms of his 1985 parole three times. As a result, he was incarcerated and released three times between 1992 and 2002. In April 2003, the petitioner's probation officer notified the Commission that the petitioner had again violated the conditions of his release by using illegal drugs, failing to participate in his required drug treatment program, and failing to report to his probation officer. (Thiessen Cert., Exh. H). In response, the Commission issued a parole violation warrant. (Thiessen Cert., Exh. I). The warrant was not immediately executed, but was lodged as a detainer against the petitioner with the New York State Department of Correctional Services on April 30, 2003 (Thiessen Cert., Exh. J), as the petitioner had been incarcerated due to a state parole violation. (Petition for a Writ of Habeas Corpus dated June 19, 2003 ("Pet.")), at first unnumbered page). Before the warrant was executed, the petitioner brought a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241, asking for a parole hearing with respect to the federal detainer. (Pet. at first unnumbered page). The warrant was then executed on November 5, 2003. (Thiessen Cert., Exh. B, at 1-2).
The petitioner was arrested on August 3, 1994 for violating the conditions of the 1985 special parole. On November 4, 1994, that parole was revoked. Caldwell, 973 F. Supp. at 407. The petitioner was released, subject to another term of special parole set to expire on August 2, 1999. (Thiessen Cert., Exh. B at 8). On June 6, 1996, he was arrested for violating his 1985 special parole, which was rescinded on November 12, 1996. (Thiessen Cert., Exh. B at 6). Caldwell, 973 F. Supp. at 407. The petitioner filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2241 arguing that the Commission did not have the power to impose a new term of special parole when he was released in December 1995. On August 21, 1997, the Honorable Lewis A. Kaplan, U.S.D.J., found that the Commission lacked authority to impose special parole on the petitioner when he was released in 1995, declined to order the petitioner's release, and remanded the matter to the Commission. Caldwell, 973 F. Supp. at 409. The petitioner then sought reconsideration of Judge Kaplan's decision. In an order dated November 13, 1997, Judge Kaplan held that while the Commission lacked authority to release the petitioner on special parole on December 1, 1995, it had the authority to release him on regular parole. (Thiessen Cert., Exh. C). He also held that the Commission should have an opportunity to reconsider its December 1, 1995 order and that, if the Commission deemed it appropriate, it could explicitly impose a term of regular parole. (Thiessen Cert., Exh. C). On September 30, 1997, the Commission complied with the district court's order and recalculated the petitioner's sentence as if the remainder of his special parole term were a regular sentence of parole. (Thiessen Cert., Exh. D). Pursuant to 18 U.S.C. § 4163, the petitioner was mandatorily released from that sentence on August 28, 1998. (Thiessen Cert., Exh. E Exh. B at 5). On July 19, 2002, the Commission revoked the petitioner's mandatory release because the petitioner violated a condition of his parole, and ordered his release after the service of 47 months. (Thiessen Cert., Exh. F). The petitioner was released on parole on September 27, 2002. (Thiessen Cert., Exh. B at 3 Exh. G).
Although the petitioner did not label his submission as a petition for a writ of habeas corpus the Court interpreted it as such and altered the case caption accordingly.
In an order dated November 18, 2003 (the "Nov. 18 Order"), the Honorable Michael B. Mukasey, Chief Judge, dismissed the petitioner's claims under 28 U.S.C. § 2241 because the petitioner could not be deemed to be in federal custody for the parole violation since the detainer had not been executed at the time the petitioner filed his petition. (Nov. 18 Order at 3-4). In the same order, the Court also construed a portion of the petitioner's original submission as a petition for a writ of mandamus pursuant to 28 U.S.C. § 1361, as the petitioner sought to compel the Commission to comply with the statutes pertaining to parole violation hearings. (Nov. 18 Order at 4). Chief Judge Mukasey directed the petitioner to submit an amended petition for a writ of mandamus within sixty days of the date of the November 18 order. (Nov. 18 Order at 6).
On January 8, 2004, the Commission offered the petitioner an expedited revocation, whereby he could accept responsibility for his federal parole violation and be provided a release date. (Thiessen Cert., Exh. K). On January 30, 2004, the petitioner declined the Commission's proposal and requested an in-person hearing. (Thiessen Cert., Exh. K, at third unnumbered page).
On March 26, 2004, the Court's Pro Se Office received a letter from the petitioner in which, believing that his petition was dismissed on November 18, 2003, he requested that the Court appoint legal counsel for him. (Letter of Ted Caldwell dated March 24, 2004, attached to Order dated April 15, 2004 (the "April 15 Order")). Chief Judge Mukasey construed the letter as a motion for an extension of time to comply with the November 18 Order and granted the application. (April 15 Order at 1). The Court then directed the petitioner to submit within thirty days an amended petition for a writ a mandamus in compliance with the prior order. (April 15 Order at 1-2).
On April 27, 2004, Mr. Caldwell filed the instant amended petition for a writ of mandamus (the "Amended Petition"). On May 17, 2004, before receiving an in-person hearing, the petitioner elected to accept the Commission's expedited revocation proposal. (Thiessen Cert., Exh. L at third unnumbered page). On May 27, 2004, the Commission revoked the petitioner's parole pursuant to the agreement. (Thiessen Cert., Exh. M).
The petitioner was mandatorily released on May 27, 2004, with a sentence expiration date of September 2, 2004. (Resp., Exh. B at 2; Resp., Exh. N). The respondent submitted a letter in opposition to the amended petition, arguing that it is moot since the petitioner has been released. The petitioner did not submit a reply.
Discussion
First, the petitioner claims that, although he requested a "revocation hearing" for his violation of probation, he has not received a "parole hearing" since he has been in federal custody (Amended Petition, ¶¶ 9, 11). Second, he argues that because he was not given his parole hearing, he "has been incarcerated over his sentence." (Amended Petition, ¶ 13). Essentially, he claims that had he had a hearing, the Commission would have realized that his sentence was completed. (Amended Petition, ¶ 14). Furthermore, he contends that he should have received credit for the time he spent in a federal drug treatment program before he started serving his sentence for his fourth parole violation. (Amended Petition, ¶ 12). Therefore, the petitioner "begs . . . the court to release him". (Amended Petition, ¶ 17).
Although Chief Judge Mukasey characterized this petition as a petition for a writ of mandamus, the petition can also reasonably be interpreted as a petition for a writ for habeas corpus under 28 U.S.C. § 2241 because, not only does the petitioner challenge the failure to afford him a revocation hearing, but he also attacks the execution of his federal sentence. "Under § 2241, a [federal] prisoner may challenge the `execution of [his] sentence', such as calculations by the Bureau of Prisons of the credit to be given for other periods of detention, or decisions to deny parole, or conditions of confinement[.]". Poindexter v. Nash, 333 F.3d 372, 377 (2d Cir. 2003) (citations and alterations omitted).
The appropriate remedy for the government's failure to comply with the time requirements pertaining to parole revocation hearings is "a writ of mandamus to compel the Commission's compliance with the statute not a writ of habeas corpus to compel release on parole or to extinguish the remainder of a sentence." Sutherland v. McCall, 709 F.2d 730, 732 (D.C. Cir. 1983) (citations omitted); see also Heath v. United States Parole Commission, 788 F.2d 85, 89 (2d Cir. 1986) ("absent prejudice or bad faith on the Commission's part, the appropriate remedy is not writ of habeas corpus but a writ of mandamus").
The issue in this case is whether the petitioner's acceptance of an expedited revocation and subsequent release caused the petition to become moot because it no longer presents a case or controversy under Article III § 2 of the Constitution. To satisfy the case-or-controversy requirement, "[t]he parties must continue to have a `personal stake in the outcome' of the lawsuit[.]"Lewis v. Continental Bank Corp., 494 U.S. 472, 477-78 (1990) (quoting City of Los Angeles v. Lyons, 461 U.S. 95, 129 (1983)). In other words, 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[.]" Id. at 477 (citations omitted).
1. Denial of Revocation Hearing
In this case, after the petitioner challenged the denial of a revocation hearing in his petition of April 27, 2004, he accepted the Commission's expedited revocation proposal. The expedited revocation agreement required the petitioner to waive his revocation hearing and accept responsibility for his federal parole violation. (Thiessen Cert., Exh. L). Because the petitioner waived his right to a revocation hearing, his prior request for one no longer presents a live controversy. Accordingly, the petitioner's argument that he was denied a revocation hearing is moot.
2. Extended Sentence
A petition for habeas corpus does not necessarily become moot when a prisoner is released from custody or has satisfied a sentence. The courts recognize that a live controversy exists if the petitioner can show that he will face continuing negative consequences as a result of a challenged conviction. Carafas v. LaVallee, 391 U.S. 234, 237-38 (1968) (petition not moot where released petitioner could not engage in certain business, vote in state elections, or serve as a juror because of conviction). However, if a petitioner who has completed his term of incarceration yet still challenges his sentence cannot show that he will suffer concrete and continuing collateral legal consequences as a result of the challenged sentencing decision, his petition is moot. See Spencer v. Kemna, 523 U.S. 1, 14-18 (1998); Lane v. Williams, 455 U.S. 624, 630-33 (1982).
In Lane, the petitioners sought "the elimination of [a] mandatory parole term from their sentences." Lane, 455 U.S. at 630. However, by the time the case was before the Supreme Court, the parole terms had expired and the respondents had been discharged from custody. Id. The Court found that they were "no longer subject to any direct restraint" and held that "[s]ince respondents elected only to attack their sentences and since those sentences expired during the course of these proceedings, this case is moot." Id. The Court reasoned that "[n]ullification of a conviction may have important benefits for a defendant . . . but urging in a habeas corpus proceeding the correction of a sentence already served is another matter." Id. (quoting North Carolina v. Rice, 404 U.S. 244, 248 (1971)). It emphasized that the petition would not have been moot had the petitioners challenged their convictions. Id. at 630-31. It concluded that there was no future harm caused by the failure to eliminate their mandatory parole terms since no civil disabilities such as denial of employment or enhancement of a sentence in a future proceeding would result from the mere presence of a parole violation on a person's record. The Court reasoned that any civil disabilities would flow, not from a recorded violation of parole, but from the underlying conduct that formed the basis for the parole violation. Id. at 632-33. Therefore, there were no collateral consequences resulting from the challenged action and no live controversy. Likewise, in Spencer, the court found no adverse collateral consequences when the petitioner, who had completed the entire term of his imprisonment, challenged his parole revocation. As in Lane, the court would not presume that collateral consequences resulted from the petitioner's parole revocation and held that the petitioner was required to establish such consequences. Spencer, 523 U.S. at 14.
In this case, the petitioner challenges the sentence which he has already served. The incarceration that he may have incurred as a result of the denial of a revocation hearing "is now over, and cannot be undone." Spencer, 523 U.S. at 8. Mr. Caldwell is now no longer subject to any direct restraint since his sentence and term of parole fully expired on September 2, 2004. (Thiessen Cert., Exh. B at 1-2). Therefore, "[t]hrough the mere passage of time, [the petitioner] ha[s] obtained all the relief that [he] sought. In these circumstances, no live controversy remains."Lane, 455 U.S. at 633.
In addition, here, as in Lane and Spencer, the petitioner has never attacked his conviction itself. As in Lane, he simply elected to challenge the duration of his sentence. Therefore, there is no presumption of collateral consequences; the petitioner must prove them. Spencer, 523 U.S. at 14; see also Aaron v. Pepperas, 790 F.2d 1360, 1361 (9th Cir. 1986) (no collateral consequences when petitioner merely contests duration of his sentence, and does not attack validity of conviction). The petitioner contends only that because he was denied a parole revocation hearing, he "has been incarcerated over his sentence." (Amended Petition, ¶ 13). He does not argue that he will suffer collateral consequences from the denial of the revocation hearing. In any case, the possible civil disabilities that the petitioner may suffer in the future and that would keep the controversy alive would result from the "underlying conduct that formed the basis for the parole violation," not from the denial of a revocation hearing. Spencer, 523 U.S. at 13; see also Lane, 455 U.S. at 633. Therefore, there are no collateral consequences resulting from the Commission's denial of a revocation hearing.
Even if the petitioner's challenge to the denial of his revocation hearing were liberally interpreted as a challenge to the government's finding of his parole violation, there would be no collateral adverse consequences resulting from the challenged government action. This is because "parole violations . . . cannot affect a subsequent parole determination [or other future criminal proceedings] unless [the petitioner] again violates [the] law, [is] returned to prison, and become[s] eligible for parole. [The petitioner himself is] able — and indeed required by law — to prevent such a possibility from occurring." Lane, 455 U.S. at 632 n. 13. Therefore, "[n]o civil disabilities such as those present in Carafas result from a finding that an individual has violated parole." Id. at 632.
Finally, the petitioner cannot demonstrate that his claims fall under any exception to the mootness doctrine. The Supreme Court has recognized that a case will not be moot where the dispute between the parties is "capable of repetition, yet evading review." This exception only applies in unusual situations, Lewis, 494 U.S. at 477-78, "where the following two circumstances [are] simultaneously present: (1) the challenged action [is] in its duration too short to be fully litigated prior to cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party [will] be subject to the same action again. Id. at 481 (citations and quotation marks omitted); see also Norman v. Reed, 502 U.S. 279, 288 (1992). Here, the petitioner cannot establish the applicability of either prong of the exception. Having failed to demonstrate the existence of a live controversy or the applicability of any exception to the mootness doctrine, the petitioner's claims are moot. Accordingly, the court does not have jurisdiction to decide the merits of the case.
Conclusion
For the reasons set forth above, Mr. Caldwell's petition should be dismissed. Pursuant to 28 U.S.C. § 636(b)(1) and Rules 72, 6(a), and 6(e) of the Federal Rules of Civil Procedure, the parties shall have ten (10) days from this date to file written objections to this Report and Recommendation. Such objections shall be filed with the Clerk of the Court, with extra copies delivered to the chambers of the Honorable Sidney H. Stein, Room 1010, and to the Chambers of the undersigned, Room 1960, 500 Pearl Street, New York, New York 10007. Failure to file timely objections will preclude appellate review.
Respectfully submitted,