Morris v. USA

Filing 22

ORDERED Morris' Amended Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside or Correct Sentence by a Person in Federal Custody (CV 18-00065, Doc. 3 ; CR 16-01686-001, Doc. 140) is DENIED. Cause No. CV 18-00065 is DISMISSED. The Clerk of the Court shall enter judgment and shall then close its file in Cause No. CV 18-00065. A Certificate of Appealability shall not issue in this case. Signed by Senior Judge Cindy K Jorgenson on 2/18/21. (MYE)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE DISTRICT OF ARIZONA

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Kristen Theresa Morris,

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Petitioner,

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v.

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USA,

No. CV-18-00065-TUC-CKJ
CR-16-01686-TUC-CKJ (LAB)
ORDER

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Respondent.

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Pending before the Court is Petitioner’s Amended Motion to Vacate, Set Aside or

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Correct Sentence by a Person in Federal Custody Pursuant to 28 U.S.C. § 2255. (Doc. 3).

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The government has filed a response, (Doc. 16) and Petitioner has filed a reply. (Doc. 17).

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Background

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On September 7, 2016, Kristen Theresa Morris was charged with one count of

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Conspiracy to Possess with Intent to Distribute approximately 64.86 kilograms of

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Marijuana and one count of Possession with Intent to Distribute Marijuana in violation of

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21 U.S.C. §§§ 841(a)(1), (b)(1)(C), and 846. Morris pleaded guilty to the Conspiracy count

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on September 7, 2017, with her plea agreement providing a guideline range of sentencing

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between 21 to 27 months. On December 19, 2017, This Court sentenced Morris to a twenty-

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one (21) month term of imprisonment and a three-year term of supervised release.

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On February 8, 2018, Morris filed a Motion to Vacate, Set Aside or Correct

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Sentence by a Person in Federal Custody Pursuant to 28 U.S.C. § 2255, and filed an

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amended motion on February 16, 2018. The government filed its response on November

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7, 2018, and Morris filed a reply on November 19, 2018. Morris filed a notice continuing

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this action on September 12, 2019.

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Morris was released from the Federal Bureau of Prisons on May 3, 2019. (Doc. 18).

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She successfully completed her term of supervised release on July 10, 2020. (Cr. Doc.

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150).1

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Mootness

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Morris makes it clear — in her motion, amended motion, and reply — she seeks to

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challenge her sentencing rather than her conviction. (Doc. 1, pg. 14); (Doc. 3, pg. 17);

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(Doc. 17, pg. 1). However, the Court declines to address these arguments, because her

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sentence has been fully served, making her request moot. United States v. Palomba, 182

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F.3d 1121, 1123 (9th Cir. 1999).

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A question is moot when it no longer presents “a case or controversy under Article

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III, § 2, of the Constitution.” See, e.g., Spencer v. Kemna, 523 U.S. 1, 8 (1998). This

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requires the parties to continue having a stake in the outcome of the case throughout “all

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stages of federal judicial proceedings” and the plaintiff must be able to obtain redress from

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a favorable judicial decision. United States v. Verdin, 243 F.3d 1174, 1177 (9th Cir. 2001)

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(quoting Spencer, 523 U.S. at 7). The burden is met while the plaintiff is incarcerated or

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even on supervised probation. Id. In Verdin, the court found a potential one-year reduction

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of supervised probation sufficient. Id.

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However, when a sentence has completely run its course, leaving nothing to be

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undone, there must be continuing “collateral consequences.” Spencer, 523 U.S. at 8. Upon

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challenging a conviction, the presumption of collateral consequences is permissible, due to

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“the obvious fact of life that most criminal convictions do in fact entail adverse collateral

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legal consequences.” Sibron v. New York, 392 U.S. 40, 55 (1968). Yet, as Spencer instructs,

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this is not the case for other challenges, where the petitioner bears the burden. Spencer, 523

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U.S. at 12. The Spencer Court required the petitioner to “identify specific, concrete”

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consequences to satisfy this requirement for a parole revocation. Id. at 9. In building off
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Citations to the underlying criminal docket in this case are abbreviated “(Cr. Doc._)”.
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requirements from other standing contexts, the Court demanded more than a hypothetical

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injury, in this case enhanced consequences due to future lawbreaking. Id. at 13 (citing Lane

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v. Williams, 455 U.S. 624, 632-633 (1982).). In fact, the Ninth Circuit has interpreted this

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to mean any review of completed sentences over these hypothetical future consequences is

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“no longer good law.” United States v. Palomba, 182 F.3d 1121, 1123 (9th Cir. 1999).

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The heightened requirement has been extended to challenges against supervised

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release revocation denials, United States v. King, 891 F.3d 868, 872 (9th Cir. 2018), as well

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as a variety of sentence challenges. See United States v. Garcia-Gastelum, 735 F. App'x

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412 (9th Cir. 2018) (Challenge for a variance deemed moot); United States v. Mendoza,

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745 F. App'x 692 (9th Cir. 2018) (Challenge regarding reasonableness of a sentence

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deemed moot); United States v. Cota-Chavez, 698 F. App'x 484 (9th Cir. 2017) (Challenge

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regarding denial of a role reduction deemed moot); United States v. VeVea, 446 F. App'x

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63, 67 (9th Cir. 2011) (Challenge to probation conditions deemed moot). “Mootness,

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however it may have come about, simply deprives us of our power to act,” making even

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well-intended investigation or corrective actions improper. See Spencer, 523 U.S. at 18.

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Morris is no longer incarcerated or on supervised release. Her sentence is over, and

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as in Spencer, there are no collateral consequences. Morris successfully completed her

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sentence, including her supervised release term, and is no longer under the jurisdiction of

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this court.

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Certificate of Appealability (“COA”)

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Rule 11(a), Rules Governing Section 2255 Proceedings, requires that in

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habeas cases the “district court must issue or deny a certificate of appealability when it

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enters a final order adverse to the applicant.” Such certificates are required in cases

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concerning detention arising “out of process issued by a State court”, or in a proceeding

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under 28 U.S.C. § 2255 attacking a federal criminal judgment or sentence. 28 U.S.C. §

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2253(c)(1). Here, the Petition is brought pursuant to 28 U.S.C. § 2255. This Court must

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determine, therefore, if a COA shall issue.

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The standard for issuing a COA is whether the applicant has “made a substantial

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showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). “Where a district

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court has rejected the constitutional claims on the merits, the showing required to satisfy §

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2253(c) is straightforward: The petitioner must demonstrate that reasonable jurists would

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find the district court's assessment of the constitutional claims debatable or wrong.” Slack

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v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). “When the

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district court denies a habeas petition on procedural grounds without reaching the prisoner's

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underlying constitutional claim, a COA should issue when the prisoner shows, at least, that

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jurists of reason would find it debatable whether the petition states a valid claim of the

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denial of a constitutional right and that jurists of reason would find it debatable whether

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the district court was correct in its procedural ruling.” Id. In the certificate, the Court must

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indicate which specific issues satisfy the showing. See 28 U.S.C. § 2253(c)(3).

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The Court finds that jurists of reason would not find it debatable whether the

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Petition stated a valid claim of the denial of a constitutional right and the Court finds that

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jurists of reason would not find it debatable whether the district court was correct in its

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procedural ruling. A COA shall not issue as to Morris’ claims.

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Accordingly, IT IS ORDERED:

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Morris’ Amended Motion Under 28 U.S.C. § 2255 to Vacate, Set Aside or

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Correct Sentence by a Person in Federal Custody (CV 18-00065, Doc. 3; CR 16-01686-

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001, Doc. 140) is DENIED.

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Cause No. CV 18-00065 is DISMISSED

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The Clerk of the Court shall enter judgment and shall then close its file in

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Cause No. CV 18-00065.

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4.

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Dated this 18th day of February, 2021.

A Certificate of Appealability shall not issue in this case.

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