Opinion
Civil Action No. 99-CV-73945-DT.
February 11, 2000.
OPINION AND ORDER DENYING PETITION FOR A WRIT OF HABEAS CORPUS AND DENYING MOTION TO COMPEL AGENCY ACTION
Petitioner William Prowell, a federal prisoner currently confined at the Federal Correctional Institution in Milan, Michigan (FCI Milan), has filed a pro se petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 challenging his 1997 parole revocation proceedings. Petitioner was re-paroled following a period of imprisonment and is currently incarcerated due to a subsequent parole revocation. Respondent John Hemingway is the warden at FCI Milan. For the reasons stated below, Petitioner's request for habeas relief is denied and the petition for a writ of habeas corpus is dismissed. Given this determination, Petitioner's motion to compel agency action is also denied.
I. Facts
Petitioner was originally convicted of two counts of unarmed bank robbery and sentenced to concurrent terms of 12 years and 37 months imprisonment. He was first paroled on September 15, 1994. A violator warrant was issued for Petitioner on December 14, 1995 charging him with using cocaine and alcohol, failing to timely submit written supervision reports, associating with a person with a criminal record, and failing to report to his drug aftercare agency. Following a parole revocation hearing on April 18, 1996, the United States Parole Commission ("USPC") revoked Petitioner's parole. Petitioner was re-paroled on December 16, 1996.
In a letter dated March 13, 1997, United States Probation Officer Susan Worstall notified the USPC that Petitioner had violated several conditions of his release by testing positive for cocaine use on three occasions, failing to submit a written supervision report, failing to respond to her messages. and repeatedly missing sessions with his drug aftercare agency. The USPC issued a violator warrant for Petitioner on March 18, 1997. Petitioner was arrested on April 11, 1997 and taken to the Summit County Jail in Akron, Ohio.
On April 17, 1997, Petitioner's attorney, Stanley Tolliver was provided with information concerning the parole violation. Preliminary interviews were scheduled for April 21, 1997 and April 28, 1997, but were not conducted because Mr. Tolliver was not present and Petitioner did not want to proceed without him. On May 2, 1997, United States Probation Officer James Pertz conducted a preliminary interview with Petitioner and Mr. Tolliver present. A summary report of the interview was not prepared, apparently because Petitioner had requested a local revocation hearing. The USPC subsequently informed Officer Pertz that a preliminary interview should be conducted and that the USPC would then decide whether to grant Petitioner's request for a local revocation hearing. Officer Pertz informed Petitioner of this determination on May 27, 1997, at which time Petitioner requested a 30-day postponement of the preliminary interview.
Petitioner "was transferred to FCI Milan on June 6, 1997. United States Probation Officer Monroe Snider of Toledo, Ohio met with Petitioner on June 20, 1997. At that time, Petitioner stated that a preliminary interview was conducted on May 2, 1997 and refused to sign a preliminary interview form before speaking with his attorney. Mr. Tolliver was contacted and stated that he believed they were waiting to hear whether a local revocation hearing would be conducted.
On June 26, 1997, Officer Snider informed Mr. Tolliver that a preliminary interview would have to be conducted at FCI Milan. Mr. Tolliver indicated that he would not attend the interview, but wanted to speak with Petitioner before it was conducted. Petitioner was instructed to telephone Mr. Tolliver. After consulting with Mr. Tolliver, Petitioner notified the Probation Office in Toledo, Ohio that the preliminary interview could proceed without the presence of his attorney.
The preliminary interview was conducted at FCI Milan on July 14, 1997. Prior to the interview, Petitioner was given an opportunity to review relevant documents and confirmed that the interview could be undertaken without Mr. Tolliver or other appointed counsel. On July 20, 1997, Regional Commissioner John Simpson found probable cause for the alleged violations and ordered Petitioner to be designated to a federal institution for his revocation hearing. The following day, the USPC notified Petitioner of this decision and sent a parole violator information packet to FCI Milan for Petitioner to receive prior to the hewing.
Hearing Examiner Raymond Essex met with Petitioner to conduct the revocation hearing on September 2, 1997. A continuance was granted, however, because neither Petitioner nor Mr. Tolliver had been given sufficient notice of the hearing nor had they received the parole violator packet.
Hearing Examiner Kathleen Pinner conducted the revocation hearing on November 12, 1997. Prior to the hearing, Petitioner informed Examiner Pinner that he had only received notice of the hearing that morning, that had not received the parole violator packet, and that Mr. Tolliver was not present. Examiner Pinner offered to grant a continuance, but Petitioner elected to go forward with the hearing. Petitioner admitted the charged violations at the hearing. In a Notice of Action letter dated December 3, 1997, the USPC informed Petitioner that his parole was revoked, that he was credited with all time spent on parole, and that parole would be effective on June 10, 1998 after the service of 14 months imprisonment. Petitioner's appeals of this decision were denied.
Petitioner was paroled for the third time on June 10, 1998. The following day, he was charged with driving under the influence. He pleaded no contest and received a 30-day jail term (27 days suspended), a $250 fine, and a temporary suspension of his driver's license. He did not report this arrest to his probation officer until July 10, 1998. Officer Worstall reported that Petitioner also tested positive for cocaine and repeatedly missed appointments with his drug aftercare agency. The USPC issued a letter of reprimand, ordering Petitioner's placement in home confinement for 60 days.
Officer Worstall subsequently informed the USPC that Petitioner was using cocaine, had missed several appointments with his drug aftercare agency, and had failed to report to probation as directed. The USPC issued another letter of reprimand, but Petitioner continued to commit similar parole violations. On December 18, 1998, Officer Worstall requested that the USPC issue a summons for Petitioner. The USPC issued a violator warrant on December 28, 1998 and Petitioner was arrested on February 2, 1999. Following a revocation hearing, the USPC issued a Notice of Action letter dated October 27, 1999 informing Petitioner that his parole was revoked, that the time he spent on parole would not be credited, and that he was to be imprisoned until the expiration of his sentence (less good time). Petitioner's appeal of this decision is pending before the National Appeals Board,
II. Procedural History
Petitioner submitted an administrative remedy request to the warden at FCI Milan on January 7, 1998 alleging that his detainment was illegal and requesting an investigation. The warden conducted an investigation and concluded that Petitioner was not being illegally detained. Petitioner submitted an appeal to the Regional Director, which was denied on March 4, 1998. Petitioner then appealed to the National Appeals Board, which affirmed the Regional Director's decision on May 13, 1998.
Petitioner filed the instant pro se petition for a writ of habeas corpus on November 1, 1999 seeking to have his 1997 parole revocation invalidated based upon several alleged procedural errors. Specifically, Petitioner claims that: (1) he was falsely arrested on a void warrant for bank robbery without probable cause, rather than for violations of his conditions of release; (2) a probation officer failed to prepare a digest of a preliminary interview; (3) a probation officer improperly attempted to conduct several additional preliminary hearings and obtained postponements for the same; (4) a case analyst fabricated a probable cause letter; (5) he received inadequate notice of scheduled parole revocation hearings and disclosure of information packets; (6) he was coerced to proceed with his final parole revocation hearing absent proper notice, disclosure, and legal representation; and (7) his complaints regarding the alleged procedural violations have not been adequately investigated by prison officials; and (8) he received ineffective assistance of counsel during the revocation proceedings.
Respondent filed an answer to the petition on January 10, 2000, asserting that the petition is moot and, alternatively, that Petitioner's claims lack merit.
III. Discussion
Article III, § 2 of the Constitution requires the existence of a case or controversy through all stages of federal judicial proceedings. This means that, throughout the litigation, the petitioner "must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision." Lewis v. Continental Bank Corp., 494 U.S. 472, 477 (1990). An incarcerated convict's challenge to the validity of his conviction satisfies the case-or-controversy requirement, because the incarceration constitutes a concrete injury, caused by the conviction, which can be redressed by the invalidation of the conviction. See Spencer v. Kenna, 523 U.S. 1, ___, 118 S.Ct. 978, 983 (1998). Once the convict's sentence has expired, however, some concrete and continuing injury other than the now-ended incarceration or parole — some "collateral consequence" of the conviction — must exist if the suit is to be maintained and not considered moot. Id. Courts may presume that a criminal conviction has continuing collateral consequences. Id. at. 983-85 (noting that Supreme Court has been willing to accept hypothetical collateral consequences for criminal convictions); Evitts v. Lucey, 469 U.S. 387, 391 n. 4 (1985) (accepting as collateral consequence possibility that conviction may be used in future criminal proceeding to enhance sentence); Carafas v. LaVallee, 391 U.S. 234, 237-38 (1968) (convicted felon's inability to engage in certain businesses, serve in particular offices, vote, and serve as a juror due to his conviction defeated mootness challenge to his appeal).
In Spencer, the United States Supreme Court declined to extend this presumption of collateral consequences to parole revocations. Spencer, 118 S.Ct. at 985-86; see also Lane v. Williams, 455 U.S. 624, 632-33 (1982). The Supreme Court held that when a petitioner challenges a parole revocation but has completed the sentenced imposed upon revocation, the petitioner bears the burden of demonstrating the existence of actual collateral consequences arising from the parole revocation. Spencer, 118 S.Ct. at 986. Absent such a showing, the petitioner's claims are rendered moot by completion of the imprisonment term imposed for the parole revocation.
Claims of detriment in a future parole or sentencing proceeding, impeachment in a future criminal or civil proceeding, use against the petitioner as a defendant in a future criminal proceeding, and possible effects on filing a civil rights lawsuit under 42 U.S.C. § 1983 do not constitute sufficient proof of collateral consequences. Spencer, 118 S.Ct. at 986-88; see also United States v. Meyers, ___ F.3d ___, 2000 WL 3843, *6 (10th Cir, Jan. 4, 2000) (holding that when a defendant appeals the revocation of supervised release and has completed the term of resulting imprisonment, the potential impact of the revocation order and sentence on possible later sentencing proceedings does not constitute a sufficient collateral consequence to defeat mootness); United States v. Clark, 193 F.3d 845, 847-48 (5th Cir. 1999) (fact that petitioner was required to pay $100 per month to probation officer during period of extended supervised release and that he may need a decision questioning the validity of his extended supervised release to bring a separate lawsuit were insufficient to defeat mootness); United States v. Mercurris, 192 F.3d 290, 293-94 (2d Cir. 1999) (refusing to presume collateral consequences arising from aggravated felony enhancement once petitioner completed his sentence); United States v. Palomba, 182 F.3d 1121, 1123 (9th Cir. 1999) (petitioner lacked standing to challenge criminal history calculation for completed sentence); United States v. Probber, 170 F.3d 345, 348-49 (2d Cir. 1999) (concluding that petitioner's allegations that revocation decision finding him guilty of mail and wire fraud would adversely affect his reputation, could be used against him as character or impeachment evidence in future legal proceedings, could support an upward sentencing departure in future criminal proceedings, or made it more likely that he would be erroneously convicted in the future were too speculative to satisfy the case-or-controversy requirement).
By the time Petitioner filed his federal habeas petition on November 1, 1999, he had completed serving the 14-month term of imprisonment arising from the 1997 parole revocation proceedings at issue in this case. Petitioner was re-paroled and is currently incarcerated based upon a subsequent revocation of his parole which occurred in 1999. Petitioner has not shown that he suffers continuing collateral consequences flowing from the parole revocation decision. Petitioner's subsequent encounters with the criminal justice system may be affected by his underlying unarmed robbery convictions, but those convictions are not at issue in this habeas proceeding. Any injury that Petitioner suffered arising from the 1997 parole revocation proceedings cannot be redressed by a favorable judicial decision from this Court. Petitioner's claims have thus been rendered moot and his petition for a writ of habeas corpus must be dismissed.
IV. Conclusion
For the reasons stated, the Court concludes that Petitioner's claims concerning his 1997 parole revocation proceedings are moot. Petitioner has not demonstrated that he is otherwise entitled to habeas relief from this Court.
Accordingly, IT IS ORDERED that the petition for a writ of habeas corpus is DENIED WITH PREJUDICE. Additionally, given this determination, IT IS FURTHER ORDERED that Petitioner's motion to compel agency action is DENIED.
GERALD E. ROSEN UNITED STATES DISTRICT JUDGE
DATED: 11 FEB 2000