Scott v. Warden of the Buena Vista Correctional Complex
Filing
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ORDER granting 30 Respondents Motion to Dismiss Matter as Moot. Petitioner Lynn Eugene Scotts Application For a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 is denied for lack of subject matter jurisdiction. No certificate of appealabil ity will issue because Petitioner has not made a substantial showing that jurists of reason would find it debatable whether the jurisdictional ruling is correct and whether the Petition states a valid claim of the denial of a constitutional right. This case is dismissed without prejudice. by Judge William J. Martinez on 8/24/2011.(erv, )
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge William J. Martínez
Civil Action No. 10-cv-02716-WJM
LYNN EUGENE SCOTT,
Applicant,
v.
WARDEN OF THE BUENA VISTA CORRECTIONAL FACILITY,
Respondent.
ORDER DISMISSING APPLICATION FOR A WRIT OF HABEAS CORPUS
PURSUANT TO 28 U.S.C. § 2241
This matter is before the Court on Petitioner Lynn Eugene Scott’s pro se
Application for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2241 (“the Petition”)
challenging the validity of an October 2007 prison disciplinary conviction that resulted in
the postponement of his reparole date. Respondent filed a Response to Order to Show
Cause and the Petitioner filed a Traverse. Also pending is Respondent’s Motion to
Dismiss Matter as Moot [Dkt. #30]. Petitioner filed a response to the motion. Having
considered the same, the Court concludes that the Petition must be dismissed for lack
of subject matter jurisdiction.
I.
Background
Petitioner was convicted in Colorado state court of two separate drug counts and
was sentenced on March 24, 2000 to ten years of imprisonment with the Colorado
Department of Corrections (DOC), plus a period of mandatory parole pursuant to
statute. See Motion to Dismiss, Affidavit of Mary Carlson, Ex. A, at ¶ 4, and attachs. 1,
2. In May 2004, he was sentenced for a conviction on two charges of escape to six
months imprisonment and a two-year period of parole. Id. at ¶ 4, and attach. 3. On
June 19, 2006, the Colorado Board of Parole granted Petitioner early release to parole.
Carlson Aff., at ¶ 5, and attachs. 4, 5. The mandatory five-year parole period was
ordered to commence April 11, 2007 in Denver. Id. On July 3, 2007, a parole complaint
was filed, alleging that Petitioner committed numerous violations of his parole
agreement, including absconding from parole supervision. Id., at ¶ 6. On July 9, 2007,
the Parole Board found Petitioner guilty of absconding and other violations and ordered
Petitioner’s parole revoked for 180 days. Id. at ¶ 7, attach. 7. Petitioner was returned to
the DOC to serve the revocation. Id. Petitioner’s reparole date was scheduled for
January 5, 2008. Id. at ¶ 8.
On October 19, 2007, Petitioner was convicted of a class II Code of Penal
Discipline (COPD) infraction for advocating a facility disruption at Sterling Correctional
Facility (SCF). Carlson Aff., ¶ 9. In a hearing held on November 14, 2007, the Parole
Board rescinded Petitioner’s January 5, 2008 reparole date and ordered that the
revocation period be extended 180 days. Id., and attachs. 8, 9. Petitioner’s reparole
date was continued to May 12, 2008. Id., ¶ 10.
On February 19, 2008, Petitioner was convicted of a class II COPD infraction for
possession of another offender’s legal document at SCF. Carlson aff., ¶ 11. In a
hearing held on March 11, 2008, the Parole Board rescinded Petitioner’s May 12, 2008
reparole date and ordered that the revocation period be extended 150 days. Id., and
attachs. 10, 11. Petitioner’s reparole date was readjusted to August 5, 2008. Id. at ¶
12.
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Petitioner was reparoled on August 5, 2008. Carlson aff., at ¶ 13, and attachs.
12, 13. On September 12, 2008, a parole complaint was filed against Petitioner,
alleging several violations of the parole agreement, including absconding from parole
supervision. Id. at ¶ 14, and attach. 14. Following a November 20, 2008 hearing, the
Parole Board found Petitioner guilty of several parole violations, and revoked his parole
to the DOC for the remainder of the term. Id. at ¶ 15, and attach. 15. Petitioner was
returned to the DOC on November 24, 2008 to serve his parole revocation period. Id.
His estimated discharge date is May 3, 2012. Id. at ¶ 16.
II.
Standard of Review
The Court must construe the Petition and other papers filed by Petitioner liberally
because he is not represented by an attorney. See Haines v. Kerner, 404 U.S. 519,
520 (1972); Hall v. Bellmon, 935 F.2d 1106, 1110 (10th Cir.1991). However, the Court
should not be an advocate for a pro se litigant. See Hall, 935 F.2d at 1110.
An action brought by a federal prisoner pursuant to 28 U.S.C. § 2241 is one that
challenges the execution of a sentence. See Davis v. Roberts, 425 F.3d 830, 833 (10th
Cir. 2005); McIntosh v. United States Parole Comm'n, 115 F.3d 809, 811 (10th
Cir.1997) (“a § 2241 attack on the execution of a sentence may challenge some matters
that occur at prison, such as deprivation of good-time credits and other prison
disciplinary matters.”). A district court is only authorized to issue the writ of habeas
corpus when the petitioner is “in custody in violation of the Constitution or laws or
treaties of the United States.” 28 U.S.C. § 2241(c)(3). An application for habeas relief
may be granted only “when the remedy requested would result in the prisoner’s
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immediate or speedier release from . . . confinement.” Boutwell v. Keating, 399 F.3d
1203, 1209 (10th Cir. 2005).
Petitioner challenges his October 19, 2007 prison disciplinary conviction for
advocating a facility disruption as violative of his rights under the Fourteenth
Amendment Due Process Clause. See Wolff v. McDonnell, 418 U.S. 539, 563-67
(1974) (setting forth due process requirements in prison disciplinary proceedings);
Superintendent, Mass. Corr. Inst., Walpole v. Hill, 472 U.S. 445, 454 (1985) (holding
that requirements of due process are satisfied if some evidence supports prison
disciplinary decision). He does not seek any specific relief.
Respondent does not intend to raise the affirmative defenses of timeliness or
failure to exhaust state court remedies. See Dkt. #7.
III.
Analysis
The first issue the Court must address is whether the Petition is moot. “A habeas
corpus petition is moot when it no longer presents a case or controversy under Article
III, § 2, of the Constitution.” Aragon v. Shanks, 144 F.3d 690, 691 (10th Cir.1998) (citing
Spencer v. Kemna, 523 U.S. 1 (1998)). To satisfy this case or controversy requirement,
“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. (quotation
omitted). Put simply, “[a]n issue becomes moot when it becomes impossible for the
court to grant ‘any effectual relief whatsoever’ on that issue to a prevailing party.”
United States v. Hahn, 359 F.3d 1315, 1323 (10th Cir. 2004) (quoting Smith v. Plati, 258
F.3d 1167, 1179 (10th Cir. 2001)). “Mootness is a threshold issue because the
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existence of a live case or controversy is a constitutional prerequisite to federal court
jurisdiction.” McClendon v. City of Albuquerque, 100 F.3d 863, 867 (10th Cir. 1996).
In this proceeding, Petitioner challenges the constitutionality of his October 2007
disciplinary conviction which caused the Parole Board to postpone Petitioner’s reparole
date for several months. However, once Petitioner was reparoled on August 5, 2008,
he no longer had a redressable injury arising from the postponement. The Court cannot
shorten the period of the postponement because it was terminated by Petitioner’s
reparole. As such, “the best this court could do for him would be to declare [in an
advisory opinion] that he spent longer in prison than he should have . . . . [t]hat is not
enough to satisfy Article III.” Rhodes v. Judiscak,
F.3d
, 2011 WL 3134731, at *3
(10th Cir. July 27, 2011). Petitioner therefore must establish the existence of continuing
“collateral consequences” as a result of the postponement to demonstrate a live case or
controversy. See Spencer, 523 U.S. at 7-8 (holding that when a defendant challenges a
parole revocation but has completed the sentence imposed upon revocation, the
defendant bears the burden of demonstrating the existence of actual collateral
consequences resulting from the revocation”); see also Vandenberg v. Rodgers, 801
F.2d 377, 377-78 (10th Cir.1986) (dismissing habeas petition as moot where petitioner
challenged determinations that delayed his parole date, but was released on parole at
time of appeal).
Petitioner counters that the Petition is not moot because he is still imprisoned,
having been reincarcerated following revocation of his term of mandatory parole.
Petitioner maintains that he should have been released from DOC custody on his state
sentences in March 2008 and his current detention, therefore, is illegal. Response, at
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3-10. This argument is wide of the mark. The Petition challenges the execution of
Petitioner’s sentence as it was affected by his October 1997 prison disciplinary
conviction–i.e., the postponement of his reparole from January 2008 to May 2008. The
Petition does not assert any constitutional or federal statutory claims concerning the
execution of Petitioner’s sentence following his reparole in August 2008 and his
subsequent reincarceration in November 2008. And, such concerns are not “collateral
consequences” of the postponement of his reparole in 2008. See Spencer, 523 U.S. at
15-16 (possibility that prisoner may violate the law upon his release from state
confinement “does not constitute a sufficient collateral consequence to defeat
mootness”). Because Petitioner does not articulate any continuing “collateral
consequences” as a result of the postponement of his reparole from January to May
2008, he fails to present a case or controversy for purposes of Article III. See generally
id., at 14-17 (rejecting petitioner’s asserted injuries attributable to parole revocation).
Accordingly, it is ordered:
1.
Respondent’s Motion to Dismiss Matter as Moot [Dkt. #30] is GRANTED.
2.
Petitioner Lynn Eugene Scott’s Application For a Writ of Habeas Corpus
Pursuant to 28 U.S.C. § 2241 is denied for lack of subject matter
jurisdiction.
3.
No certificate of appealability will issue because Petitioner has not made a
substantial showing that jurists of reason would find it debatable whether
the jurisdictional ruling is correct and whether the Petition states a valid
claim of the denial of a constitutional right.
4.
This case is dismissed without prejudice.
Dated this 24th day of August, 2011.
BY THE COURT:
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_______________________
William J. Martínez
United States District Judge
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