Ward v. Gray

Filing 46

MEMORANDUM AND ORDER ENTERED: Respondent's motion 39 to dismiss this matter as moot is granted. The motion 41 of Charles W. Gittins is denied as moot. Signed by Senior District Judge Richard D. Rogers on 9/27/2012. (smnd)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

BRIAN SCOTT WARD,
Petitioner,
v.

CASE NO. 10-3047-RDR

ERIC BELCHER,
Respondent.

MEMORANDUM AND ORDER

This matter is a petition for habeas corpus filed pursuant to
28

U.S.C.

incarcerated

§

2241.
in

the

Petitioner
United

commenced

States

this

Disciplinary

matter

while

Barracks,

Fort

Leavenworth, Kansas (“USDB”).
The

matter

now

comes

before

the

court

on

the

motion

of

respondent to dismiss this matter as moot (Doc. 39), and the motion
of Charles W. Gittins to appear pro hac vice and as co-counsel in
this matter without sponsorship (Doc. 41).
Background
Petitioner was incarcerated pursuant to his guilty plea of
conduct including the possession of child pornography, indecent
conduct with a minor, and disorderly conduct. The minor victim was
petitioner’s stepdaughter, the child of his second wife. Contact
with the victim is not at issue in this matter, and all references

to the children hereafter refer to the daughter and son born during
petitioner’s first marriage.
Petitioner initially was confined at the U.S. Naval Brig,
Pensacola,

Florida,

and

during

his

confinement

there

he

had

communication with the children by mail, telephone, and personal
visits.
Following

his

reception

at

the

USDB

in

September

2005,

officials advised him that he was subject to USDB Command Policy
Letter #03-26, Sexual Offenders Contact with Minor Children. This
policy provides, in part, “those who have been convicted of a
criminal offense that involved sexual contact with children pose
some level of risk for re-offending even after completion of
treatment and will not be allowed

to have contact, either written,

telephonic or in person with minor children.” (Doc. 6, Att. F., Ex.
B, ¶ 4.) As a result of this policy, petitioner was unable to have
any type of contact with the children, although they were not
involved in his criminal conduct, and their mother, the custodial
parent, did not object to their having contact with the petitioner.
A

mental

health

evaluation

of

the

children

in

May

2006

was

favorable.
Petitioner pursued an exception or waiver from the policy by
administrative channels at the USDB, and he also presented his
complaint concerning the no-contact rule in a Grostefon1 brief in
1

U.S. v. Grostefon, 12 M.J. 431 (C.M.A.1982)(allowing a
petitioner to personally present claims before the courts of
military review even if counsel declines to raise them
elsewhere).
2

his direct appeal before the Navy-Marine Corps Court of Criminal
Appeals.
Petitioner commenced this action in March 2010. The matter was
held

in

abeyance

to

allow

him

to

exhaust

available

military

remedies.
In November 2010, petitioner completed a 35-week sex offender
course

at

the

USDB,

and

he

received

a

favorable

evaluation

concerning communication with his children. The USDB then issued
permission allowing petitioner limited written communication with
the children.
In March 2011, the court appointed counsel to assist petitioner
and allowed the filing of an amended petition. That petition was
filed in April 2011, and petitioner personally filed a supplement to
the amended petition in May 2011. Respondent filed a response to the
amended petition on July 5, 2011.
On July 10, 2011, Petitioner was released from the USDB and
placed on Mandatory Supervised Release (“MSR”). Under the MSR
agreement, petitioner is allowed contact with children, including
his

own

children,

only

where

that

contact

is

monitored

by

a

probation officer and treatment provider. Petitioner’s present
custody status on MSR was granted by the Secretary of the Navy, and,
in turn, the current terms and conditions of his supervised release
are governed not by the USDB but by the Secretary of the Navy
through the Naval Parole and Clemency Board (“NPCB”). (Doc. 45, p.
2.)
Discussion
3

It is well-settled that “[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)). This

requirement exists at all stages of litigation. Lewis v. Cont’l Bank
Corp., 494 U.S. 472, 477 (1990). “A case, although live at the
start, becomes moot when intervening acts destroy a party’s legally
cognizable interest in the outcome of adjudication.... In such a
case, Article III would deprive the federal courts of jurisdiction
over that party’s claim.” Tandy v. City of Wichita, 380 F.3d 1277,
1290 (10th Cir. 2004).
The case-or-controversy limitation lies at the core of both
standing and mootness jurisprudence. Friends of the Earth v. Laidlaw
Envtl. Servs., 528 U.S. 167, 180 (2000). A case becomes moot when a
petitioner no longer suffers an “actual injury that can be redressed
by a favorable judicial decision.”

Iron Arrow Honor Soc’y v.

Heckler, 464 U.S. 67, 70 (1983); Green v. Haskell County Bd. of
Comm’rs, 568 F.3d 784, 794 (10th Cir. 2009).
Nevertheless,

a

claim

which

is

made

moot

by

intervening

circumstances may survive dismissal if the allegedly unlawful act is
“capable of repetition yet evading review.” Spencer, 523 at 17. Such
a claim will be recognized only in exceptional circumstances. City
of Los Angeles v. Lyons, 461 U.S. 95, 109 (1983). Generally, the
exception is available only where two criteria are met, namely,
“‘(1) the challenged action was in its duration too short to be

4

fully litigated prior to its cessation or expiration, and (2) there
was a reasonable expectation that the same complaining party would
be subjected to the same action again.’” Murphy v. Hunt, 455 U.S.
478, 482 (1982)(quoting Weinstein v. Bradford, 423 U.S. 147, 149
(1975)).
This matter has been capably briefed by the parties, and the
court is persuaded that it presents a significant constitutional
question,

namely,

whether

a

complete

ban

on

consensual

communications between a parent and his children may be sustained
where there exist reasonable alternatives.
Despite

this,

however,

the

current

circumstances

of

petitioner’s status lead to the conclusion that this matter is moot
due to petitioner’s release from the USDB. The conditions of his
present status are subject not to the Commandant but to the NPCB.
While it is possible that petitioner might be returned to the USDB,
such return is, at best, speculative. Likewise, it is noteworthy
that at the time of petitioner’s release, authorities at the USDB
had

allowed

some

means

for

petitioner

and

his

children

to

communicate. The court has carefully considered the entire record
and finds no concrete injury that is susceptible to judicial
correction in habeas corpus. Because the court cannot find the
requisite exceptional circumstances to allow this matter to proceed,
the matter must be dismissed as moot.

IT IS, THEREFORE, BY THE COURT ORDERED respondent’s motion to
dismiss this matter as moot (Doc. 39) is granted.
5

IT IS FURTHER ORDERED the motion of Charles W. Gittins (Doc.
41) is denied as moot.
Copies of this Memorandum and Order shall be transmitted to the
parties.
IT IS SO ORDERED.
DATED:

This 27th day of September, 2012, at Topeka, Kansas.

S/ Richard D. Rogers
RICHARD D. ROGERS
United States District Judge

6