Usman Shehu Sule v. Warden, Adx Florence, Colorado, 133 F.3d 933, 10th Cir. (1998)
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Scribd Government DocsUsman Shehu Sule v. Warden, Adx Florence, Colorado, 133 F.3d 933, 10th Cir. (1998)
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98 CJ C.A.R. 185
NOTICE: Although citation of unpublished opinions remains unfavored,
unpublished opinions may now be cited if the opinion has persuasive value on a
material issue, and a copy is attached to the citing document or, if cited in oral
argument, copies are furnished to the Court and all parties. See General Order of
November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or
further order.
Usman Shehu SULE, Petitioner-Appellant,
v.
Warden, Adx FLORENCE, Colorado, Respondent-Appellee.
No. 97-1210.
United States Court of Appeals, Tenth Circuit.
Jan. 13, 1998.
Before BALDOCK, McKAY, and LUCERO, Circuit Judges.
ORDER AND JUDGMENT*
MONROE G. McKAY, Circuit Judge.
After examining Petitioner-Appellant's brief and the appellate record, this panel
has determined unanimously that oral argument would not materially assist the
determination of this appeal. See Fed. R.App. P. 34(a); 10th Cir. R. 34.1.9. The
case is therefore ordered submitted without oral argument.
Petitioner is a former federal prisoner now in custody at the Immigration and
Naturalization Services detention facility in Aurora, Colorado. Appearing pro
se and proceeding in forma pauperis, Petitioner filed a habeas corpus petition
pursuant to 28 U.S.C. 2241 asserting that his First and Fifth Amendment
rights were violated by a prison disciplinary sanction withdrawing twenty-two
days of good-time credit. Petitioner appeals the district court's dismissal of his
section 2241 petition. Respondent moves for this court to dismiss the appeal for
mootness.
Respondent contends the appeal is moot because Petitioner served his sentence
and was released from United States Bureau of Prisons' custody on July 3,
1997. Respondent also argues there are no collateral consequences that could
transform Petitioner's appeal into a justiciable controversy because the
challenged disciplinary sanction only impacted a sentence that has been fully
discharged. Petitioner argues his appeal is not moot because collateral
consequences could flow from his intention to undertake a civil rights action for
damages against the Bureau of Prisons and United States and from the sixtymonth term of supervised release included in his sentence.1
Petitioner claims that because he intends to file a Bivens or Federal Tort Claims
Act action against the Bureau of Prisons and the federal government for the
denial of good-time credit, the rule in Heck v. Humphrey, 512 U.S. 477 (1994),
constitutes a collateral consequence flowing from the disciplinary sanction.
Under Heck, Petitioner is required to obtain a judgment setting aside the prison
disciplinary sanction as a prerequisite to claiming damages for constitutional
violations under 42 U.S.C. 1983. See id. at 486-87. If we were to find this
appeal moot, we would effectively bar Petitioner from undertaking a civil rights
action. We must determine whether the Heck bar constitutes a collateral
consequence under existing precedent.
A case becomes moot if at any time during any stage of a judicial proceeding
no live controversy exists or "the parties lack a legally cognizable interest in the
outcome." Powell v. McCormack, 395 U.S. 486, 496 (1969); see U.S. Const.
art. III, 2; United States v. Chavez-Palacios, 30 F.3d 1290, 1292-93 (10th
Cir.1994). However, an exception to the mootness doctrine occurs when
"collateral consequences" from a judgment give a party a substantial stake in
the outcome of the case. Carafas v. LaVallee, 391 U.S. 234, 237 (1968). The
collateral consequences doctrine recognizes that the law naturally imposes
future indirect consequences when a previous judgment, conviction, or sentence
affects the outcome of a later-existing dispute. See Sibron v. New York, 392
U.S. 40, 53-57 (1968); Carafas, 391 U.S. at 237; see also Oyler v. Allenbrand,
23 F.3d 292, 294 (10th Cir.1994) (holding habeas appeal not moot because
possible collateral consequences could flow from misdemeanor conviction).
While we acknowledge that the Seventh Circuit has suggested the collateral
consequences doctrine is limited to a narrow set of imposed legal disabilities
such as being barred from holding office, voting in state election, and serving as
a juror, see McClendon v. Trigg, 79 F.3d 557, 558 (7th Cir.1996), our
reasoning leads us to a contrary result.
The Supreme Court has held "that a criminal case is moot only if it is shown
there is no possibility that any collateral legal consequences will be imposed on
the basis of the challenged conviction." Sibron, 392 U.S. at 57. A collateral
consequence is not necessarily limited to the few legal penalties articulated by
the Supreme Court in Carafas, 391 U.S. at 237, but may be defined more
broadly as the possibility of a legal consequence stemming from one's status.2
See Sibron, 392 U.S. at 55 (The "mere possibility" of an adverse legal collateral
consequence "is enough to perserve a criminal case from ending ignominiously
in the limbo of mootness.") (internal quotation marks and citation omitted). The
structure of our existing law creates a variety of statuses--such as the felon, the
habitual offender, the parolee, or the probationer--from which collateral
consequences may flow. See Carafas, 391 U.S. at 237 (case not moot because
defendant could not vote or serve as juror as a consequence of his conviction);
United States v. Reider, 103 F.3d 99, 101 (10th Cir.1996) (release from federal
custody and from any term of parole or supervised release did not moot appeal
from order revoking release); Chavez-Palacios, 30 F.3d at 1293 (attack on
sentence was not moot because appellate court decision could affect appellant's
two-year term of supervised release); United States v. Smith, 997 F.2d 674, 676
n. 2 (10th Cir.) (felony status rendered appeal justiciable), cert. denied, 510
U.S. 937 (1993); City of Ottowa v. Lester, 822 P.2d 72, 74 (Kan.1991) (appeal
not moot because of collateral effect on habitual offender status).
7
In Russ v. Perrill, 995 F.2d 1001, 1003 n. 2 (10th Cir.1993), we held that
petitioner's habeas appeal was not moot even though his sentence was fully
discharged and he was no longer in federal custody. In Russ, petitioner brought
a habeas petition for the violation of his rights under the Youth Corrections
Act. Under that act, a youth offender's conviction would be set aside if he
received an unconditional discharge prior to the completion of his maximum
sentence. See id. If we had dismissed the appeal as moot, we would have barred
the setting-aside of petitioner's conviction, even though we determined that
petitioner's rights had been violated. Id. at 1003. We therefore concluded that
the appeal was not moot because it "ha[d] important collateral consequences."
Id. at 1003 n. 2. Similarly, under Heck, one can pursue legal action for the
deprivation of civil rights only when the underlying conviction or sentence has
been invalidated. See Heck, 512 U.S. at 486-87. In the best-case scenario,
where a habeas corpus petitioner's constitutional rights were in fact violated,
that petitioner would have a valid basis for a section 1983 action. However, as
in Russ, a dismissal of the habeas action for mootness would impose a legal
disability on that petitioner because his meritorious civil rights action would be
barred by Heck.3 The irony of this result is that a petitioner whose civil rights
clearly have been violated but who received a short sentence would be unable
to satisfy the Heck rule. A petitioner who also had a plausible civil rights claim
but who received a life sentence could meet Heck 's requirement simply
because he remained incarcerated. Such a distinction would be arbitrary and
senseless. We conclude that the Heck rule requiring a successful attack on the
underlying disciplinary sanction before pursuing a damages claim constitutes a
collateral consequence within the meaning of the mootness doctrine. Accord
Leonard v. Nix, 55 F.3d 370, 373 (8th Cir.1995).
8
Our review of the record indicates that, although no actual controversy exists at
this stage of the proceeding, Petitioner has articulated the presence of an
adverse collateral consequence that could be imposed as a result of the prison
disciplinary sanction. We therefore do not decide whether any collateral
consequences stem from Petitioner's sixty-month term of supervised release.4
We deny Respondent's Motion to Dismiss this appeal for mootness and turn to
the merits of Petitioner's section 2241 claim.
After reviewing the record, we affirm the district court's dismissal of the
habeas petition for the reasons stated in the magistrate judge's
Recommendation filed October 1, 1996, and adopted by the district court in its
Order of Dismissal filed May 20, 1997. Judge Baldock concurs in the result
only.
10
AFFIRMED.
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally
disfavors the citation of orders and judgments; nevertheless, an order and
judgment may be cited under the terms and conditions of 10th Cir. R. 36.3
Petitioner only attacks the validity of the prison disciplinary sanction
withholding good-time credit. Petitioner does not attack the validity of the
underlying conviction or the sentence of 97 months imprisonment and 60
months supervised release for importation of heroin imposed by the United
States District Court for the Eastern District of New York in 1990
Our use of "status" conforms to the following primary definition: "[T]he
condition ... of a person that determines the nature of his legal personality, his
legal capacities, and the nature of the legal relations to the state or to other
persons into which he may enter." Webster's Third New International
Dictionary 2230 (1986)
We note that while, for the purposes of analysis, the collateral consequences
doctrine is examined in light of the meritorious case where petitioner's
constitutional rights were violated, the rule also encompasses the petitioner
whose claim has no merit
4
Apparently, were we to address this issue, prior decisions in this circuit indicate
that no collateral consequences would stem from Petitioner's sixty-month term
of supervised release. See Johnson v. Riveland, 855 F.2d 1477, 1481-82 & n. 4
(10th Cir.1988); Vandenburg v. Rodgers, 801 F.2d 377, 377-78 (10th Cir.1986)
