Catanzaro #313263 v. Harry et al

Filing 42

OPINION ; signed by Chief Judge Robert J. Jonker (Chief Judge Robert J. Jonker, ymc)

UNITED STATES OF AMERICA
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF MICHIGAN
SOUTHERN DIVISION

MATTHEW CATANZARO,
Petitioner,

Case No. 1:11-cv-867

v.

Honorable Robert J. Jonker

SHIRLEE HARRY,
Respondent.
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OPINION
This is a habeas corpus action brought by a former state prisoner pursuant to 28
U.S.C. § 2254. The proccedings to date in this action were summarized by the Sixth Circuit as
follows:
In 2006, Catanzaro pleaded guilty to second-degree criminal sexual conduct,
and the trial court imposed a term of imprisonment of three to twenty-two and
one-half years. The Michigan courts affirmed his convictions and sentence.
Catanzaro filed a habeas petition in April 2008, which the district court denied.
Catanzaro did not appeal.
In April 2009, a parole hearing was held wherein the Michigan Parole Board
denied Catanzaro parole. In February 2010, he filed a habeas petition challenging the
Board’s decision. While the petition was pending, however, Catanzaro was released
on parole. The district court dismissed the petition, finding that Catanzaro’s release
rendered it moot. We denied a certificate of appealability (“COA”). Catanzaro v.
Quigley, No. 11-2406 (6th Cir. Apr. 25, 2012) (unpublished order).
Catanzaro was returned to prison on January 10, 2011, for engaging in
assaultive behavior while on parole in a Residential Sex Offender Program
(“RSOP”). On August 17, 2011, he filed the instant petition, classified as a “hybrid”
action, which referred to a civil rights complaint filed the same day, titled “Complaint
Pursuant to Civil Rights Act of 42 U.S.C. § 1983 and 28 U.S.C. § 2254 Habeas
Corpus/Hybrid.” Catanzaro alleged that his rights to due process and equal

protection were violated by the Board’s decision to parole him to the RSOP, rather
than to his home or the community, and by the decision to revoke his parole. He
also asserted that both his placement in the RSOP and the revocation of his
parole were done in retaliation for filing other legal actions. Finally, he alleged that
the conditions of his confinement in the RSOP were unconstitutional. The
court dismissed Catanzaro’s petition without service on the respondent, pursuant
to Rule 4, for failure to raise a meritorious federal claim. The court also denied
a COA.
We granted a COA in part and certified the following claims: 1) whether the
revocation of Catanzaro’s parole was motivated by retaliation; and 2) whether
Catanzaro was denied equal protection in connection with the revocation of his
parole. Catanzaro now alleges that the district court erred by finding that his
retaliation and equal protection claims were legally insufficient.
Catanzaro v. Harry, No. 12-1119 (6th Cir. April 2, 2013) (Order, ECF No. 28, PageID.165-66.) The
Sixth Circuit concluded this Court had erred in dismissing as legally insufficient Catanzaro’s
allegations of retaliation and equal protection violations in connection with the revocation of his
parole and remanded for further proceedings with respect to those two claims. (Id. at PageID.167.)
Respondent has filed an answer to the petition (ECF No. 34) and submitted the
relevant parole board records as required under Rule 5, RULES GOVERNING §2254 CASES.
Petitioner has not filed a reply to the response. Petitioner’s silence might be explained by the fact
that, according to the Michigan Department of Corrections (MDOC), he was discharged without
conditions on September 11, 2014. See MDOC Offender Tracking and Information Service,
http://mdocweb.state.mi.us/OTIS2 /otis2profile.aspx?mdocNumber=313263. Because Petitioner has
been discharged, his petition no longer presents a case or controversy under Article III, § 2, of the
Constitution. Accordingly, the petition will be dismissed as moot.

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Discussion
In Spencer v. Kemna, 523 U.S. 1 (1998), the Supreme Court considered whether a
prisoner’s release mooted the prisoner’s habeas petition challenging his incarceration by reason of
parole revocation. Because prisoner Spencer, as well as Petitioner here, was incarcerated at the time
the petition was filed, he satisfied the “in custody” requirement of 28 U.S.C. § 2254. Id. at 7. The
Spencer Court recognized, however, that the “case or controversy” requirement of Article III, § 2,
of the Constitution, requires more:
“This case-or-controversy requirement subsists through all stages of federal judicial
proceedings, trial and appellate.... The parties must continue to have a ‘personal stake
in the outcome’ of the lawsuit.” Lewis v. Continental Bank Corp., 494 U.S. 472,
477–478 (1990). See also Preiser v. Newkirk, 422 U.S. 395, 401 (1975). This means
that, throughout the litigation, 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.” Lewis, supra, at 477.
Spencer, 523 U.S. at 7 (parallel citations omitted). The injury is apparent so long as the convict is
incarcerated or even on parole. Id. Even after the sentence has expired and the convict is released,
the Court has not hesitated to presume continuing collateral consequences of the conviction, even
where such consequences might be remote or unlikely to occur. Id. at 7-8.
Does that same presumption apply where the convict has been released and the habeas
petition challenges only parole revocation? The Spencer Court said no: “We . . . decline to presume
that collateral consequences adequate to meet Article III’s injury-in-fact requirement resulted from
petitioner’s parole revocation.” Id. at 14. Moreover, the Court rejected as inadequate or too
speculative all of the possible injuries-in-fact offered by Spencer.1 The Court was unable to identify

1

Spencer suggested that if his parole revocation were permitted to stand it might be used to his detriment in later
parole proceedings or used to increase his sentence in future criminal proceedings. Spencer, 523 U.S. at 14-15. Spencer
further argued that the parole revocation might be used to impeach him or be used against him directly in subsequent

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any “collateral consequence” that might permit a convict challenging parole revocation to satisfy the
injury-in-fact requirement once he had been released. The Court concluded that it was “not in the
business of pronouncing that past actions which have no demonstrable continuing effect were right
or wrong.” Id. at 18. It affirmed the Eighth Circuit’s determination that Spencer’s release mooted
his petition challenging the constitutionality of parole revocation proceedings. Id.
Courts in this circuit applying Spencer have routinely concluded that petitions
challenging parole revocation proceedings are moot once the petitioner has been released. See, i.e.,
Prowell v. Hemingway, 37 F. App’x 768 (6th Cir. 2002); Pokladek v. Burton, No. 2:14-cv-13602
(E.D. Mich. Feb. 2, 2016); Bettison v. Bell, No. 10-12358 (E.D. Mich. Oct. 4, 2012); Henry v.
Romanowski, No. 10-10920 (E.D. Mich. July 25, 2012); Rehkopf v. Berghuis, No. 1:09-cv-116
(W.D. Mich. Oct. 27, 2011) adopted (W.D. Mich. Nov. 17, 2011); Thomas v. United States, No.
1:06-cv-25 (W.D. Mich. Oct. 12, 2007); Smith v. Lazaroff, No. 2:04-cv-606 (S.D. Ohio Mar. 14,
2006); Shafer v. United States, No. 1:04-cv-86 (E.D. Tenn. April 25, 2005). Although one can
conceive of injuries that might accrue to a prisoner subjected to an unconstitutional parole revocation
proceeding, Petitioner has failed to demonstrate any injury that would be remediable by way of
habeas corpus action now that he has been released.
Because there is no longer any injury likely to be redressed by a favorable judicial
decision, there is no case or controversy here. Spencer, 523 U.S. at 7. Accordingly, the petition is
moot and this Court is deprived of jurisdiction. See Demis v. Sniezek, 558 F.3d 508, 512 (6th Cir.

proceedings. Id. at 15-16. Alternatively Spencer claimed that the effect of a habeas dismissal on a
precluded a determination of mootness. Id. at 17.

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§ 1983 action

2009) (“Because the exercise of judicial power under Article III of the Constitution depends on the
existence of a live case or controversy, mootness is a jurisdictional question.”).
Conclusion
In light of the foregoing, the Court will dismiss Petitioner’s application as moot
because he has been released.
Certificate of Appealability
Under 28 U.S.C. § 2253(c)(2), the Court must determine whether a certificate of
appealability should be granted. A certificate should issue if Petitioner has demonstrated a
“substantial showing of a denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). The Sixth Circuit
Court of Appeals has disapproved issuance of blanket denials of a certificate of appealability.
Murphy v. Ohio, 263 F.3d 466 (6th Cir. 2001). Rather, the district court must “engage in a reasoned
assessment of each claim” to determine whether a certificate is warranted. Id. at 467. Each issue
must be considered under the standards set forth by the Supreme Court in Slack v. McDaniel, 529
U.S. 473 (2000). Murphy, 263 F.3d at 467. Consequently, this Court has examined each of
Petitioner’s claims under the Slack standard. Under Slack, 529 U.S. at 484, to warrant a grant of the
certificate, “[t]he petitioner must demonstrate that reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong.” Id. “A petitioner satisfies this standard
by demonstrating that . . . jurists could conclude the issues presented are adequate to deserve
encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322, 327 (2003). In applying
this standard, the Court may not conduct a full merits review, but must limit its examination to a
threshold inquiry into the underlying merit of Petitioner’s claims. Id.

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The Court finds that reasonable jurists could not conclude that this Court’s denial of
Petitioner’s claims was debatable or wrong. Therefore, the Court will deny Petitioner a certificate
of appealability.
A Judgment and Order consistent with this Opinion will be entered.

DATED:

July 28, 2016

/s/ Robert J. Jonker
ROBERT J. JONKER
CHIEF UNITED STATES DISTRICT JUDGE

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