Litschewski v. Dooley et al

Filing 29

ORDER granting 22 Motion to Dismiss, denying 26 Petitioner's request for evidentiary hearing. Signed by U.S. District Judge Charles B. Kornmann on May 30, 2018. (DLC)

FILED
MAY 30 2016

UNITED STATES DISTRICT COURT
DISTRICT OF SOUTH DAKOTA

NORTHERN DIVISION

1:16-CV-01009-CBK

RICHARD LITSCHEWSKI

Petitioner,
vs.

ORDER

ROBERT DOOLEY,Warden, Mike Durfee
State Prison; DENNIS KAEMINGK,Secretary
of Corrections; and MARTY J. JACKLEY,

Attorney General, State of South Dakota,
Respondents.

BACKGROUND

Petitioner filed a request for habeas corpus relief pursuant to 28 U.S.C. § 2254

challenging the October 2014 decision ofthe South Dakota Department of Corrections to revoke
his good time credits for failure to participate in a sex offender treatment program which
required petitioner to admit to his sex offenses. Petitioner argued that the revocation of good time
credits violated his Fifth Amendment rights against self-incrimination and double jeopardy, as
well as his First Amendment liberty interest, Sixth Amendment right to counsel. Fourteenth

Amendment due process rights, and the Religious Land Use of Institutionalized Persons Act,
among other contentions. Petitioner requested appointment of counsel, which was granted on
March 9, 2016. On January 5, 2018, Petitioner was released from prison. Respondents

subsequently filed a motion to dismiss the habeas petition as moot. Petitioner objects to the
motion to dismiss, arguing that he suffers from collateral consequences as a result of not
completing the sexual offender treatment program; namely, the requirement to register as a sex

offender, ineligibility for good time credits were he convicted of a sex offense again, and the

requirement to report to the sex offender registry failure to complete the treatment program.

Petitioner requests an evidentiary hearing to present evidence ofthe collateral consequences of
his compliance with South Dakota's sex offender registration statute.
DECISION

1. Standard to render a habeas petition moot

Article III of the Constitution requires that federal courts limit jurisdiction to "actual,
ongoing cases and controversies." Haden v. Pelofskv. 212 F.3d 466,469(8th Cir. 2000); see
U.S. Const, art. Ill, § 2, cl. 1. When a federal court can no longer grant effective relief as a result

"ofthe passage oftime or a change in circumstances" a case is considered moot and must be
dismissed for lack ofjurisdiction. Ali v. Caneemi. 419 F.3d 722, 723-24 (8th Cir. 2005)(internal
citations omitted). If a petitioner is released from custody, but "faces sufficient repercussions
from his allegedly unlawful punishment," the federal court should not dismiss the petition as
moot. Leonard v. Nix. 55 F.3d 370, 373 (8th Cir. 1995)(internal citations omitted). While such

repercussions, or collateral consequences,"are presumed to stem from a criminal conviction,"
where the "allegedly illegal punishment does not produce any collateral consequences
independent of the underlying conviction, the case will be mooted by physical release." Id.
(internal citations omitted). Sufficient collateral consequences to warrant continued Article III
jurisdiction may include "the right to vote, to hold office, to serve on a jury, or to engage in
certain businesses." Spencer v. Kemna. 523 U.S. I, 8(1998).

An exception to the mootness doctrine exists where a matter is "capable of repetition, yet
evading review" and there is "a reasonable expectation that the complaining party would be
subjected to the same action again." Id. at 17. However, a "mere physical or theoretical

possibility" that the petitioner will be subjected to the same action twice is not sufficient to
satisfy the mootness exception. Spencer v. Kemna. 91 F.3d 1114, 1118 (8th Cir. 1996).
Rather, the petitioner must show that there is a "reasonable likelihood" that he will be affected
by the allegedly unconstitutional practice in the future. Id. Where a petitioner's contention is

based upon "general assertions or inferences that...[he] will be prosecuted for violating valid
criminal laws" such claims to Article III standing must be rejected. O'Shea v. Littleton, 414 U.S.
488,497(1974); see also Spencer v. Kemna. 523 U.S. 1, 15 (1998).
II. Petitioner's alleged collateral consequences

Petitioner contends that this court should maintain jurisdiction over his habeas petition
because collateral consequences will result from his not completing the sexual offender treatment
program. First, petitioner characterizes the requirement to register as a sex offender as a

collateral consequence. However, the requirement to register as a sex offender is not a result of

petitioner's failure to attend treatment, but of his underlying conviction. As petitioner does not
challenge his underlying conviction, this consequence does not justify continued jurisdiction
over petitioner's claim. Leonard v. Nix. 55 F.3d at 373.

Petitioner also contends that, "[i]f[he] were convicted of a new crime, he would be
forced to sit the entire sentence again." This is effectively a request for an exception to the
mootness doctrine. Petitioner has not shown that there is a reasonable likelihood of his having to

undergo sex offender treatment again and claims to maintain standing that presume a petitioner's
future unlawful conduct have consistently been rejected by federal courts. See Spencer v.

Kemna. 523 0.8.1,15 (1998).
Petitioner's final contention is that "the sex offender registry will depict [petitioner] as
having never taken the [sexual offender treatment program]." It is true that, pursuant to SDCL
22-24B-8, the information required for sex offender registration includes "[w]hether or not
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registrant is receiving or has received any sex offender treatment." However,the South Dakota
sex offender'registry does not publish this,information online. South Dakota Sex Offender

Registry(May 3, 2018), https://sor.sd.gov/MoreInfo.aspx?s=S0591804. The sex offender
registry, contrary to petitioner's contention, does not therefore depict his failure to participate in
the sex offender treatment program. Moreover, even if the sex offender registry did make public

petitioner's.treatment status,"[m]ere injury to reputation, even if defamatory, does not constitute
the deprivation of a liberty interest." Connecticut Dept. of Public Safety v. Doe. 538 U.S. 1,1-2
(2003). Petitioner does not otherwise articulate what harm would result from providing
information on the status of his treatment to the sex offender registry. Nor has Petitioner filed

suit challenging the legality of South Dakota's sex offender registry statute. That petitioner must

report his sex offender treatment or lack thereof to the registry is too speculative a repercussion
to justify maintaining jurisdiction over the habeas petition.

None of petitioner's alleged collateral consequences are sufficiently credible to satisfy
the case-or-controversy requirement of Article III. The return of the good-time credits petitioner

originally sought would have no consequence given his release. As such, petitioner's writ of
habeas corpus is moot and should be dismissed.
III. Petitioner's request for evidentiary hearing

Where an evidentiary hearing pursuant to a habeas petition is not otherwise barred by
statute, "the decision to grant such a hearing rests in the discretion of the district court."
McGehee v. Norris. 588 F.3d 1185, 1200(8th Cir. 2009)(internal citations omitted). The district

court, in making its determination "must consider whether a hearing could enable an applicant to

prove the petition's factual allegations." Id. (internal citations omitted). If the record "refutes the
[petitioner's] factual allegations or otherwise precludes habeas relief, a district court is not
required to hold an evidentiary hearing." Schriro v. Landrigan, 550 U.S. 465, 474(2007).

This court is not persuaded that an evidentiary hearing would allow ptitioner to prove
the petition's factual allegations. Indeed, petitioner has not alleged any credible factual
allegations that, if true, would serve as sufficient collateral consequences to justify this court's
maintenance ofjurisdiction over this suit. Having failed to brief the claimed impact of

petitioner's reporting his treatment status pursuant to the sex offender registry statute, it is further
unclear what evidence petitioner could present that would demonstrate that this obligation
satisfies the case-or-controversy requirement ofthe Constitution. As such, the request for an
evidentiary hearing should be denied.
The dismissal of this action does not alleviate my concerns that the sexual offender

program for inmates in South Dakota, especially in cases where the sentencing state judge has
not included in the sentence imposed the requirement to participate in the program while in

custody, may well have constitutional flaws. I cannot, of course, issue advisory opinions and my
concerns do not remedy the problems with mootness in this case.

I thank appointed counsel for his public service. He should submit his billing to the court.
ORDER

Now,therefore,
IT IS ORDERED:

1. Respondents' motion to dismiss. Doc. 22, is granted.
2. Petitioner's request for evidentiary hearing, Doc. 26, is denied.

Dated this 3^ ^y of May,2018.
BY THE COURT:

CHARLES B. KORNMANN

United States District Judge