Opinion
Civil Action No. 04-825.
July 15, 2004
REPORT AND RECOMMENDATION
Presently before the court is a pro se petition for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2241 (Doc. No. 1). In conjunction therewith, petitioner also filed a motion to show cause for the issuance of the writ (Doc. No. 3) and a motion for injunctive relief (Doc. No. 4). Petitioner, a committed parole violator, had been incarcerated at the time he filed his petition on February 26, 2004. By his petition, petitioner challenged the manner in which his period of incarceration was calculated and requested an order releasing him from imprisonment. (Petition ¶ 32-38). Since the filing of his petition, petitioner was released from prison on March 20, 2004, having served his term of incarceration for his parole violation. Because petitioner has been released from prison, his petition for a writ of habeas corpus is now moot. For the reasons that follow, the court therefore recommends that the petition be dismissed.
I. BACKGROUND
On July 13, 1985, petitioner was convicted of mail fraud and making false statements to a government agency before the late Honorable Daniel H. Huyett, III (Criminal Action No. 84-97).See United States v. Schweitzer, 1988 WL 115774 at *1 (E.D. Pa. Oct. 26, 1988) (describing proceedings). On October 25, 1985, Judge Huyett sentenced petitioner to fifteen years of imprisonment. The Third Circuit Court of Appeals affirmed the judgment of the district court. United States v. Schweitzer, 800 F.2d 1141 (3d Cir. 1986). In October 1990, petitioner was paroled from federal prison. His parole terminates in January of 2008.
While on parole, petitioner was charged in another indictment with conspiracy, wire fraud and false statements resulting from a scheme to defraud the government (Criminal Action No. 95-200). Petitioner pled guilty on June 21, 1995 and the Honorable Clarence C. Newcomer sentenced him on November 7, 1995 to forty-one months of imprisonment. As a result of this conviction, petitioner was found in violation of his parole in Criminal Action No. 84-97 and was incarcerated on the violation until February, 1999.
While released on parole, petitioner was indicted by the federal grand jury for a third time on July 24, 2003. In this third indictment, Criminal Action No. 03-451, petitioner was charged with over thirty counts of mail and wire fraud, resulting from a scheme to fill Department of Defense contracts with goods he obtained from vendors on credit but for which he did not pay. According to the Government, the conduct charged in the current indictment is substantially similar to the conduct for which petitioner was convicted in the previous two indictments. In this most recent indictment, petitioner was released on bail and is awaiting trial before the Honorable James Knoll Gardner.
As a result of Criminal Indictment No. 03-451, a warrant was issued by the U.S. Parole Commission on the grounds that petitioner committed violations of his parole. Following a hearing, the Parole Commission found that petitioner committed technical violations of his parole and the Commission sentenced him to seven months imprisonment for the technical violations. (Petition ¶ 6, 26).
While incarcerated for the parole violations, petitioner filed this writ of habeas corpus on February 26, 2004. On March 20, 2004, petitioner was released from incarceration having completed the seven month term of imprisonment. (Response to Petition at 3). His parole continues until January 11, 2008. Id. II. DISCUSSION
In his petition for a writ of habeas corpus (Doc. No. 1), petitioner claimed that his period of incarceration was miscalculated by the Federal Bureau of Prisons ("BOP") and he requested an order releasing him from imprisonment. He alleges that the BOP failed to give him credit for certain time served. (Petition ¶ 32-38).
It is well established that under Article III, Section 2, of the United States Constitution, a federal court only may consider ongoing cases or controversies. Lewis v. Continental Bank, Corp., 494 U.S. 472, 477-78 (1990). Thus, although this action was alive when filed by petitioner and may have become moot only during the pendency of this court's review, "Article III requires that an actual controversy exist through all stages of litigation." United States v. Kissinger, 309 F.3d 179, 180 (3d Cir. 2002).
"Generally, once a litigant is unconditionally released from criminal confinement, the litigant must prove that he or she suffers a continuing injury from the collateral consequences attaching to the challenged act." Kissinger, 309 F.3d at 181. Here, petitioner must show that he will suffer future injury from the alleged miscalculation of prison time, or that he is currently suffering from an injury from the alleged miscalculation. Petitioner has failed to make such a showing.
In Spencer v. Kemna, 523 U.S. 1 (1998), petitioner filed an application for a writ of habeas corpus, which challenged the procedures used to revoke his parole. While his habeas corpus petition was proceeding, petitioner was released from incarceration because his sentence for the parole violation had been served. The U.S. Supreme Court affirmed the dismissal of the petition as being moot because petitioner had not shown concrete injuries-in-fact of the kind sufficient to satisfy Article III's case-or-controversy requirement. The Court stated the following:
An incarcerated convict's (or a parolee's) challenge to the validity of his conviction always satisfies the case-or-controversy requirement, because the incarceration (or the restriction imposed by the terms of the parole) constitutes a concrete injury, caused by the conviction and redressable by invalidation of the conviction. 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.Id. at 7.
Here, petitioner is not challenging the decision to revoke his parole or procedures used to revoke his parole. Instead, he is merely challenging the BOP's calculation of his sentence claiming that he should have received credit for previous time served. (Petition ¶ 32-38). There simply are not collateral consequences resulting from this alleged miscalculation to enable this court to hear the habeas petition after he was released from prison. Therefore, the court should dismiss the petition as moot. See Lane v. Williams, 455 U.S. 624, 631 (1982) (holding that "[s]ince respondents elected only to attack their sentences, and since those sentences expired during the course of these proceedings, the case is moot."); Diaz v. Kinkela, 253 F.3d 241, 243-44 (6th Cir. 2001) (federal habeas petition moot where petitioner challenged additional period of incarceration for "bad time," but petitioner already released from prison after serving the additional "bad time."); Wharton v. Hood, 2001 WL 1664465, at *1 (9th Cir. 2001) (unpublished opinion) (holding habeas petition moot where petitioner challenged computation of good time credits, and petitioner had been released from custody);Beckett v. Nash, 2003 WL 230224534, at *2 (E.D. Pa. Dec. 11, 2003) ("[W]here a petitioner only challenges the computation of his or her sentence — and nothing else — any alleged remedy can no longer be enforced once the petitioner has fully served the imposed sentence and has been released from custody.");Ewald v. Cockrell, 2002 WL 31051018, at *3 (N.D. Tex. Sept. 11, 2002) (habeas petition challenging aspects of sentence, rather than underlying conviction, was mooted by petitioner's release from custody). Accordingly, the court should dismiss this petition for a writ of habeas corpus as moot.
III. CONCLUSION
For all the above reasons, the court makes the following:
RECOMMENDATION
AND NOW, this 15th day of July, 2004, the court respectfully recommends that the petition for a writ of habeas corpus be DISMISSED as moot, and that no certificate of appealability ("COA") be granted.
The COA should be denied because petitioner has not shown that reasonable jurists could debate whether his petition should be resolved in a different manner or that the issues presented are adequate to deserve encouragement to proceed further. See Miller-El v. Cockrell, 537 U.S. 322, 336 (2003).