Gall v. Scroggy

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 10a0121p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

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Petitioner-Appellee, -
EUGENE WILLIAMS GALL, JR.,
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No. 08-6553
v.
,
>
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Respondent-Appellant. -
GENE SCROGGY, Warden,
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N
Appeal from the United States District Court
for the Eastern District of Kentucky at Covington.
No. 87-00056—Danny C. Reeves, District Judge.
Submitted: January 13, 2010
Decided and Filed: April 29, 2010
*
Before: MARTIN and WHITE, Circuit Judges; ZOUHARY, District Judge.

_________________

COUNSEL
ON BRIEF: Matthew R. Krygiel, OFFICE OF THE KENTUCKY ATTORNEY
GENERAL, Frankfort, Kentucky, for Appellant. Timothy G. Arnold, Jeffrey E. Sherr,
DEPARTMENT OF PUBLIC ADVOCACY, Frankfort, Kentucky, for Appellee.
MARTIN, J., delivered the opinion of the court, in which WHITE, J., joined.
ZOUHARY, D. J. (pp. 18-22), delivered a separate dissenting opinion.
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OPINION
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BOYCE F. MARTIN, JR., Circuit Judge. This is Eugene Gall’s third appearance
in our Court arising out of his 1978 murder conviction and sentence of death in
Kentucky state court. Gall was the appellant in his two prior appearances, and his record

*
The Honorable Jack Zouhary, United States District Judge for the Northern District of Ohio,
sitting by designation.

1
No. 08-6553 Gall v. Scroggy Page 2

in that role is one-and-one. In 2000, we reversed the district court’s denial of Gall’s
petition for a writ of habeas corpus, found that Gall’s 1978 murder conviction was
unconstitutional, and therefore ordered the district court to grant Gall a conditional writ
of habeas corpus. Gall v. Parker (Gall III), 231 F.3d 265 (6th Cir. 2000).1 The
condition placed on the writ allowed the Commonwealth either to release Gall or to
initiate involuntary civil commitment proceedings due to Gall’s extreme and pervasive
psychological issues. Then, in 2003, we affirmed the district court’s denial of Gall’s
request for an order compelling the Commonwealth to proceed with involuntary
commitment instead of releasing him into the custody of the state of Ohio. Gall v.
Scroggy (Gall IV), 69 F. App’x 251 (6th Cir. 2003).

Here, however, Gall finds himself in the unusual position of defending the
district court’s decision, as it is the Commonwealth that brings this appeal. After
unsuccessfully seeking an order from the Kentucky state courts vacating the 1978
conviction and expunging it from his record, Gall again turned to the district court for
relief. He sought an order mandating that the Commonwealth vacate the conviction.
The district court agreed with Gall, declared that the 1978 conviction was nullified, and
directed the Commonwealth to expunge the conviction from Gall’s criminal record. Gall
v. Scroggy, No. 2:87-cv-56, 2008 U.S. Dist. LEXIS 98254 (E.D. Ky. Dec. 4, 2008). The
Commonwealth now appeals, and we AFFIRM.

I.

In 1978, Gall was convicted in Kentucky state court of raping and murdering a
twelve-year-old girl and was sentenced to death. In 2000, though we acknowledged that
there was “little doubt” that Gall had committed the horrible crimes with which he had
been charged, we conditionally granted Gall’s petition for a writ of habeas corpus due
to the Commonwealth’s failure to prove an essential element of first-degree murder as

1
For purposes of clarity, we continue with the numbering system that we adopted in our 2000
opinion granting the conditional writ. 231 F.3d at 278. Gall I refers to the decision of the Kentucky
Supreme Court affirming Gall’s conviction and sentence on direct appeal, Gall v. Commonwealth, 607
S.W.2d 97 (Ky. 1980), and Gall II refers to the Kentucky Supreme Court’s opinion denying Gall’s request
for state habeas relief, Gall v. Commonwealth, 702 S.W.2d 37 (Ky. 1985).
No. 08-6553 Gall v. Scroggy Page 3

it existed at the time in Kentucky law. Gall III, 231 F.3d at 277. Recognizing that Gall
nevertheless posed a danger to society as a result of his uncontrollable psychological
impulses and should never be allowed to rejoin free society, we “condition[ed] the grant
of Gall’s habeas petition on the state’s granting him an involuntary hospitalization
proceeding, just as he would have been provided if he had been found insane under Ky.
Rev. Stat. Ann. § 504.030 (requiring such a proceeding for defendants who are acquitted
by reason of insanity).” Id. at 336.2

The Commonwealth sought en banc and Supreme Court review to no avail. The
district court thus took the case back up on remand to order the conditional writ and to
supervise the release or commitment process. It became apparent during a status
conference that the Commonwealth did not intend to initiate involuntary commitment
proceedings and, instead, intended to release Gall into the custody of Ohio, where Gall
had been convicted of numerous crimes and sentenced to life in prison. State v. Gall,
415 N.E.2d 1008 (Ohio Ct. App. 1980) (affirming conviction). Gall understandably
preferred to spend the rest of his life in a Kentucky mental hospital instead of an Ohio
prison. Thus, in 2001, under the same caption and case number as his original 1987
habeas petition, he moved the district court to enforce our judgment, arguing that our
conditional writ essentially amounted to a directive ordering the Commonwealth to
initiate involuntary commitment and that the Commonwealth was powerless to opt to
extradite him to Ohio instead.

Gall’s 2001 motion to enforce our judgment asked that the district court enter
“the attached Final Judgment,” a draft order that Gall tendered with his motion. The
draft order purported to direct the Commonwealth to proceed with involuntary
commitment proceedings and included, among other things, language declaring that his
1978 conviction and death sentence “are unconstitutional and are VACATED.” The
district court did not adopt Gall’s proposed judgment. Instead, for reasons not apparent

2
The commitment had to be carried out under Kentucky’s involuntarily commitment procedures
as opposed to voluntary commitment even if Gall acquiesced in the result of institutionalization. This was
so because a person who voluntarily commits himself can leave whenever he wants, an unacceptable
option given Gall’s continued risk to the public.
No. 08-6553 Gall v. Scroggy Page 4

from the record, it entered its own judgment ordering Gall’s release within ninety days,
with an additional thirty days if the Commonwealth elected to proceed with civil
commitment. Importantly for purposes of this appeal, the district court’s judgment did
not include language vacating Gall’s 1978 conviction or otherwise addressing its
continued presence on his record.

When the Commonwealth released Gall into Ohio’s custody, Gall appealed the
district court’s judgment. His sole argument on appeal was that the district court should
have ordered the Commonwealth to proceed with involuntary commitment; he did not
raise on appeal the district court’s failure to vacate the underlying conviction. Our Court
affirmed the district court in 2003. Gall IV, 69 F. App’x 251.

After losing his fight to stay in Kentucky, Gall soon moved the Kentucky state
court to vacate the conviction. He filed an action in state court in 2004 seeking to have
the conviction vacated under Kentucky state procedure. The trial court denied the
motion and, in June 2007, the Kentucky Court of Appeals affirmed. Gall v.
Commonwealth, No. 2006-CA-112-MR, 2007 Ky. App. Unpub. LEXIS 10 (Ky. Ct. App.
June 1, 2007). The Kentucky Supreme Court denied review in March 2008.

Gall therefore returned to federal court seeking an order directing the
Commonwealth to vacate his conviction. Again under the caption of his initial habeas
claim, Gall moved to enforce our ruling in Gall III declaring the conviction
unconstitutional. Gall essentially argued that an unconstitutional conviction is a legal
nullity and therefore expungement of the conviction is required. He claims that vacation
of his conviction is important because he is set to come before the parole board in Ohio
in 2021 and that, in assessing his suitability for parole, a prior murder conviction on his
record would be relevant. The Commonwealth opposed Gall’s motion on the following
theories: (1) that either the district court lacked jurisdiction to grant the motion or that
the matter is moot because the Commonwealth has released Gall in accordance with the
writ; (2) venue was improper in federal court in Kentucky because Gall is currently
incarcerated in Ohio; (3) Gall failed to show harm flowing from the collateral
consequences of the conviction remaining on his record, so his pleadings do not allege
No. 08-6553 Gall v. Scroggy Page 5

injury; (4) Gall either waived his right to or is procedurally barred from seeking to have
the conviction vacated; and (5) that notions of federalism, comity, and justice cut against
vacating Gall’s conviction because neither the Commonwealth nor its courts want to
vacate the conviction and because vacating the conviction could aid in Gall’s parole in
Ohio. Magistrate Judge J. Gregory Wehrman recommended that the court grant Gall’s
motion and, over the Commonwealth’s objection, the district court adopted the
magistrate’s recommendation in a well-reasoned opinion. The court therefore declared
that the conviction was nullified and directed the Commonwealth to expunge the
conviction.3 The Commonwealth timely appealed.

II.

Though Gall styles his motion as a motion to enforce our judgment in Gall III,
he brought the motion under the caption of his federal habeas case, and the motion raises
substantive questions of the implication of a writ of habeas corpus and the power of a
federal court sitting in habeas. We generally review a district court’s disposition of a
habeas petition de novo and its findings of fact for clear error. Satterlee v.
Wolfenbarger, 453 F.3d 362, 365 (6th Cir. 2006). Questions of law or mixed questions
of law and fact are reviewed de novo. Ruimveld v. Birkett, 404 F.3d 1006, 1010 (6th Cir.
2005). As this appeal principally concerns legal conclusions regarding the federal
court’s power to order expungement of a state conviction and policy questions regarding
whether the court should exercise that power, we review the district court’s decision de
novo.

III.

The Commonwealth’s arguments on appeal are materially identical to those made
before the district court. Prior to addressing these arguments in turn, however, it is

3
The district court correctly explained that, although Gall sought an order vacating the conviction,
the federal court does not have the authority to vacate a state conviction as vacation is an executory act.
Instead, the federal court has the authority to nullify a conviction and to direct that it be expunged. It is
by virtue of this expungement order that the state must vacate the conviction. 2008 U.S. Dist. LEXIS
98254.
No. 08-6553 Gall v. Scroggy Page 6

useful to review our leading case on the ability of a federal court sitting in habeas to
nullify an unconstitutional state conviction.

That case is Gentry v. Deuth, 456 F.3d 687 (6th Cir. 2006). The issue in Gentry
was whether a federal court retains jurisdiction over a habeas case for purposes of
declaring a state conviction deemed unconstitutional to be null and void if the defendant
is no longer in state custody.4 On the way to answering in the affirmative, we
characterized the expungement of an unconstitutional conviction from one’s record as
the “essential relief” contemplated by a conditional writ of habeas corpus. Id. at 691
(“[T]he court’s May 2004 order [granting a conditional writ of habeas corpus ordering
either release or retrial within ninety days] implicitly expected that the Commonwealth
would vacate the prior judgment pursuant to seeking a new trial, and thus the
Commonwealth’s failure to seek a new trial effectively circumvented the district court’s
purpose.”); see also id. at 695 (“[A] successful habeas challenge to an unconstitutional
conviction necessitates relief not only from any present incarceration arising from that
conviction, but also from any collateral consequences thereof. Therefore, Gentry’s
challenge to the collateral consequences of her conviction was implied by her original
petition challenging her conviction as unconstitutional . . . .”). Thus, because a federal
court always retains jurisdiction to enforce its lawful judgments, including habeas
judgments, the court has the authority to see that its judgment is fully effectuated. This
includes the ability to order the state to expunge a conviction. Id. at 692, 696-97.

In other words, a habeas petition challenging the constitutionality of a conviction
(as opposed to the constitutionality of a particular sentence) challenges both the
conviction itself and the resulting confinement and other collateral or incidental
consequences stemming from the conviction. If the petition is well taken, then the
necessary remedy is relief from both the direct and collateral consequences of the
unconstitutional conviction. It follows that, because ongoing collateral consequences

4
The Commonwealth was also the Appellant in Gentry.
No. 08-6553 Gall v. Scroggy Page 7

are assumed to flow from an unconstitutional conviction,5 and because the full relief
implied by the writ is the elimination of all direct and collateral consequences,
nullification of the conviction and expungement of the conviction from one’s record are
naturally and necessarily implicit in granting the writ. Id. at 696 (“As a practical,
logical, and necessary matter, relief from the collateral consequences of an
unconstitutionally obtained state criminal conviction effectively requires expungement
of the conviction from the petitioner’s record, and expungement of the record implies
nullification of the unconstitutional conviction.”). Indeed, as a general proposition, we
know of no authority or plausible rationale indicating that states ever have a substantive
justification to keep an unconstitutional conviction on an individual’s record, and we
find it telling that the Commonwealth has not cited a single case of a state successfully
maintaining an unconstitutional conviction on the record of a petitioner seeking its
removal. The only question is whether the state takes care of the ministerial function of
expungement of its own accord or whether it insists that the habeas petitioner
affirmatively request expungement.

Having thus reviewed Gentry, we believe that the majority of the
Commonwealth’s arguments in this case are plainly foreclosed by this prior precedent.

A. The district court retained jurisdiction to consider and grant Gall’s motion.

Just as it did in Gentry, the Commonwealth argues that the district court no
longer has habeas jurisdiction because Gall has been released from the custody of the
Kentucky prison. And just as it was in Gentry, the Commonwealth is incorrect.

In support of its argument, the Commonwealth cites Gentry for the proposition
that “when a state meets the terms of the habeas court’s condition, thereby avoiding the
writ’s actual issuance, the habeas court does not retain any further jurisdiction over the
matter.” (Appellant’s Br. at 9 (citing Gentry, 456 F.3d at 692).) The Commonwealth

5
As for the presence of collateral consequences stemming from a felony conviction, we explicitly
stated, “[w]ith respect to injury, an essential element of a live controversy, the law does not require a
habeas petitioner to prove by a preponderance of the evidence that she may face collateral consequences
of her unconstitutional felony conviction, for the disabilities consequent to a felony conviction are legion,
and patently obvious in many cases.” Id. at 694.
No. 08-6553 Gall v. Scroggy Page 8

proceeds to argue that it met the terms of Gall’s conditional writ by releasing him to the
state of Ohio, so the habeas court lost jurisdiction at that time. In relying upon this
statement, the Commonwealth reveals a misreading of Gentry6 and a fundamental
misunderstanding of the concept of conditional writs of habeas corpus.

As we explained in Gentry, “the sole distinction between a conditional and an
absolute grant of the writ of habeas corpus is that the former lies latent unless and until
the state fails to perform the established condition, at which time the writ springs to life,”
and, thus, “[c]onditional grants of writs of habeas corpus are final orders . . . exactly like
absolute grants, and they ordinarily and ideally operate automatically, that is, without
the need for the district court to act further.” 456 F.3d at 692. An absolute writ
immediately provides the petitioner the right to relief from all direct and collateral
consequences of the unconstitutional conviction. A conditional writ places a hold on
that right pending the state’s exercise of the option allowed by the conditional writ but,
if the state does not exercise the option, the conditional writ converts into an absolute
writ, complete with the right to relief from all direct and collateral consequences. Id.
The federal court retains jurisdiction to afford that relief until the unconstitutional
judgment is gone. Edelman v. McKee, 506 F.3d 409, 413 (6th Cir. 2009).

In Gentry, as in the case of most conditional writs, the option was for the state
to retry the defendant. Because it failed to exercise that option, the writ became
absolute.7 The same is generally true in this case, the only difference being the nature
of the condition placed on the writ. The option provided the Commonwealth by the
conditional writ was to initiate involuntary commitment proceedings. When it failed to

6
Indeed, the Commonwealth misreads Gentry in almost all relevant respects. That case is
unequivocally contrary to the Commonwealth’s position yet the Commonwealth continues to cite Gentry
in support of its position. Thus, although this case is materially identical to Gentry in all respects save for
one procedural issue, we cannot summarily affirm for the reasons stated in Gentry because the
Commonwealth appears so fundamentally to misunderstand the reasons stated in Gentry.
7
“As Gentry had been released from prison prior to the district court’s order, the Commonwealth
obviously had no duty under the district court’s order to take any action with respect to her person.
However, Gentry’s status as a convicted felon apparently remained in force, as the Commonwealth did not
nullify her conviction, and thus her January 2005 motion reasonably asked the court to enforce its order
by making the conditional writ absolute. Therefore, we find that the district court retained jurisdiction to
enforce its conditional grant of a writ of habeas corpus.” 456 F.3d at 692.
No. 08-6553 Gall v. Scroggy Page 9

exercise that option, the writ became absolute. Thus, as in Gentry, the federal court
retains jurisdiction to effectuate and enforce the judgment encompassed by the now-
absolute writ provided that all other requisites for federal jurisdiction, such as a live case
or controversy, are also present.

B. Venue was proper in the United States District Court for the Eastern
District of Kentucky.
The Commonwealth next argues that, because Gall is currently incarcerated in
Ohio and because the harm of the alleged collateral consequences would come to fruition
in Ohio, he must seek vacation of the Kentucky conviction, if anywhere, in Ohio.
However, as the district court correctly reasoned, Gall’s request for vacation of the
conviction is necessarily tied to his original petition for a writ of habeas corpus. Because
venue was proper in the Eastern District of Kentucky for Gall to bring his habeas
petition originally, 28 U.S.C. § 2241(d), so too is venue proper in that district to seek
enforcement of that court’s judgment on the petition.

C. Gall adequately alleges injury.

The Commonwealth further argues that Gall has not pled with sufficient
particularity that he is suffering any injury from the conviction’s remaining on his
record. Ongoing or future harm is a prerequisite for the existence of a case or
controversy, a necessary requirement for the continued existence of federal habeas
jurisdiction. Gentry, 456 F.3d at 693 (describing the evolution of the case or controversy
requirement in habeas cases). Because Gall maintains that the conviction will affect his
proceedings before the Ohio parole board, and because that hearing will not occur until
at least the year 2021, the Commonwealth claims that he is not currently suffering any
injury in fact. In this regard, the Commonwealth does not seem to dispute that the
conviction will be relevant to the decision of the Ohio parole board and, instead, seems
to argue simply that the alleged injury is too far in the future to give rise to the injury
necessary to establish a case or controversy. This argument misunderstands the nature
of the collateral consequences flowing from an unconstitutional felony conviction and
elevates form over function.
No. 08-6553 Gall v. Scroggy Page 10

First, we summarily found in Gall IV that Gall continued to suffer from collateral
consequences in 2003 even though he had already been transferred to Ohio. Gall IV, 69
F. App’x at 253. Though we did not state explicitly what those collateral consequences
were, we nevertheless found that they were present. Additionally, our decision in Gall
IV necessarily did not alleviate those collateral consequences because we denied Gall
any relief. As nothing has changed since our 2003 opinion, it would seem to follow that
the collateral consequences still exist.

Even if we had not already decided the collateral consequences issue in Gall IV,
we held in Gentry that collateral consequences are essentially presumed simply by virtue
of the unconstitutional conviction’s continued existence. Gentry, 456 F.3d 694-95.
Thus, once a habeas petitioner provides the minimal showing of the existence of
collateral consequences that we found to be required in Gentry, it becomes the state’s
burden to show conclusively that collateral consequences do not exist in a case of an
unconstitutional conviction remaining on one’s record. This makes perfect sense when
viewed in context—a felony conviction is a scarlet letter placed upon an individual by
the state that carries with it consequences that we have described as “legion” and
“patently obvious.” Id. at 694. Though it seems settled that the mere presence of the
conviction is not, in and of itself, sufficient injury to give rise to a case or controversy,
it is equally settled by Gentry that a petitioner need not show much more than the
possibility of tangible collateral consequences for the burden to shift to the state to show
that the consequences are not in fact possible. See also Spencer v. Kenna, 523 U.S. 1,
7 (1998) (“In recent decades, we have been willing to presume that a wrongful criminal
conviction has continuing collateral consequences (or, what is effectively the same, to
count collateral consequences that are remote and unlikely to occur).”).

In this case, the Commonwealth has not proven to our satisfaction that the 1987
conviction will have no possible effect on the Ohio parole board’s consideration.8

8
It is on this point that our dissenting colleague primarily disagrees. The dissent contends that
(1) this is not the typical case in which we may presume collateral consequences such as inability to vote
or own a firearm because Gall continues to be a felon due to the Ohio convictions and (2) the Ohio Parole
Board will still consider the strong evidence of Gall’s guilt of murder, and almost certainly deny parole
on that basis, even if there is no conviction to confirm that guilt, and so finds the case to be moot. The
No. 08-6553 Gall v. Scroggy Page 11

Indeed, in its brief on appeal, the Commonwealth admits that, although it doubts that the
1987 conviction will impact the parole hearing due to the presence of other felony
convictions, “it is impossible to know how this prior conviction will be handled until
Gall comes up for parole.” (Appellant’s Br. at 16.) Furthermore, despite its expressed
doubt as to the presence of collateral consequences, we note that the Commonwealth has
mounted a vigorous defense over an issue that it would have us believe is meaningless.
We are satisfied of the continued existence of collateral consequences sufficient to give
rise to a case or controversy.

We also disagree with the notion implied in the Commonwealth’s argument that
Gall should simply wait until the day of his parole hearing gets closer to bring this
challenge. As stated above, the Commonwealth has not shown that the conviction will
be completely irrelevant to his parole hearing. We can find no compelling reason to
delay addressing what will be an issue at some point, and we find it particularly ironic
that the Commonwealth argues here that Gall should wait when, as we will see, the
Commonwealth argues later that Gall has waited too long.

D. Gall has not waived or procedurally defaulted on his right to request
nullification and expungement of the 1978 conviction.
The Commonwealth contends that Gall waived or defaulted on his right to seek
relief from the federal courts regarding expungement of the 1978 conviction. The basis
for this argument is that Gall briefly raised the issue in the district court in connection
with his motion to enforce in Gall IV and did not press the issue on appeal. This is easily
the Commonwealth’s strongest argument in this case as it is the only aspect of this case

dissent is certainly correct as to the first contention insofar as this is not a typical habeas case, and it argues
persuasively (much more so, we note, than did the Commonwealth) as to the second contention. But
nowhere in the authorities is it suggested that the presumption of collateral consequences applies only in
typical habeas cases, so the presumption applies here. It is thus the Commonwealth’s burden to establish
conclusively that the collateral consequences will not come to pass, a task that the Commonwealth has not,
and likely could not, accomplish. Furthermore, the dissent’s reasoning—that because parole is unlikely
under the unique facts of this case, there is a lack of injury sufficient to allow the anomalous result of an
unconstitutional conviction remaining on one’s record—could have dangerous implications even in a
typical habeas case. It is possible that the next person seeking to have an unconstitutional conviction
removed from her record is very unlikely ever to own a firearm, or had no prior record of ever voting.
Surely we would not say that there is no ongoing injury just because this person was unlikely ever to
exercise the rights that would be restored after the conviction were erased. It is for this very reason that
the presumption of collateral consequences exists.
No. 08-6553 Gall v. Scroggy Page 12

that is materially distinguishable from Gentry. Indeed, as we have already mentioned,
we can imagine no reasonable substantive argument in support of a state maintaining an
unconstitutional conviction on an individual’s record, so the only way for a state to
obtain this result legally is to rely upon an individual litigant’s procedural foot-faults.
In this case, however, we do not find Gall’s actions to be procedurally faulty, and
certainly not sufficiently so as to justify the anomalous result of an unconstitutional
conviction remaining on Gall’s record.

We begin with the observation made above, and that we made in Gentry, that a
conviction declared unconstitutional by a court of competent jurisdiction becomes a
legal nullity at the moment that the judgment becomes final. See Gentry, 456 F.3d at
697 (“[A] state acts ultra vires when it obtains a criminal conviction in violation of the
United States Constitution, and ultra vires acts bear no legitimate force in a government
under the law. A public act without legitimate force is indistinct under the law from an
act that never was, or an act that has been voided.”). And, as we stated above, the
expungement of a conviction is a necessary consequence of that conviction having been
declared unconstitutional, so the only remaining matter is the purely administrative step
of erasing the conviction from the records. Although the federal courts certainly have
the authority to order a state to take this ministerial step, we do not see it as being the
federal courts’ responsibility to do so. Ideally, the state would expunge the conviction
of its own accord, but we recognize that bureaucracy often and innocently gets in the
way of the ideal and efficient operation of government. We therefore assume that the
state courts would, upon request, follow up and order the removal of an unconstitutional
conviction as a matter of course and without protestation. Furthermore, we do not
believe our thinking on this point to be novel or unreasonable. If a state conviction is
declared unconstitutional, the state, either by itself or by order of its courts, should
expunge the conviction, and the federal courts should not be called upon to exercise the
paternalistic function of directing the state to do that which it necessarily must do.

With these general principles in mind, we turn to Gall’s case. As we just said,
it would not have been unreasonable for Gall to assume that the best place to seek to
No. 08-6553 Gall v. Scroggy Page 13

have his state conviction expunged was the court of the state where he had been
convicted. And, indeed, Gall did just that when, in 2004, he asked the Kentucky state
court to vacate his conviction under state procedural rules. For their own reasons, the
Commonwealth’s courts declined to provide Gall the relief to which he is entitled, but
we nevertheless do not fault Gall for directing his request to the state courts.

This leaves only the question whether Gall’s failure to argue the issue of
expungement on appeal in Gall IV precludes him from asking the federal courts to order
expungement now. Viewing the pleadings at issue in Gall IV, it is clear that the primary
issue was whether the Commonwealth had the authority to decline our invitation to
initiate civil commitment proceedings and to opt instead to release Gall into the custody
of Ohio. The vacation of Gall’s 1978 conviction is not mentioned at all in the body of
his motion to enforce our judgment. Instead, vacation of the conviction is only raised
by language in Gall’s proposed final judgment that he tendered along with his moving
papers proclaiming that his conviction was unconstitutional and vacated.

We find it highly material that expungement of the conviction was not the subject
of Gall’s motion in 2001 and, instead, was only fleetingly mentioned in a proposed final
judgment. Had expungement of the conviction been the actual subject of the motion,
then Gall’s failure to press the point on appeal might preclude him from raising the issue
in the future. But the issue was only raised in a proposed order, which parties submit
almost as an afterthought and which courts often disregard without ever even looking
at them. Stated differently, that the district court declined to enter the proposed final
judgment submitted by Gall does not necessarily imply that the court substantively
considered whether to order expungement of the conviction and decided against it; it
could just as easily mean that the court never looked at the proposed order because it
prefers to prepare its own orders or because it was denying the relief that was the focus
of the proceedings. Thus, vacation of the conviction appearing in the proposed order
indicates, at most, a belief on Gall’s part that the federal court had the power to nullify
the conviction, a belief we later confirmed in Gentry. But, as we stated above, neither
before nor after Gentry is it unreasonable for a litigant to believe that the best and most
No. 08-6553 Gall v. Scroggy Page 14

direct way to have an unconstitutional state conviction expunged from one’s record is
to ask the state to do so.9

In sum, (1) because expungement of the conviction was not truly at issue in Gall
IV, (2) because we find no indication that the district court substantively considered and
rejected the suggestion in the proposed order to direct expungement of the conviction,
and (3) because Gall quite reasonably believed that he could and should seek this relief
from the state courts, we find no procedural fault in Gall’s decision to not raise the issue
on appeal in Gall IV and to opt instead to seek relief from the state courts.

E. Delay does not preclude Gall from now seeking expungement.

In a related argument, the Commonwealth contends that the delay between Gall’s
motion to enforce in 2001 and his motion to enforce in 2008 bars his ability to seek
expungement. The Commonwealth actually makes this argument twice, first under the
guise of procedural waiver and later under a theory akin to equitable estoppel. We reject
each argument.

As we noted above, we find it irreconcilable that the Commonwealth argues both
that Gall has waited too long to seek relief and that he must wait until closer to his 2021
parole hearing to seek relief. As to the waiver-by-delay theory, we have already stated
that Gall’s litigation strategy of first seeking relief from the state courts, a process which
took approximately four years, does not result in a waiver of his right to return to the
federal courts. As to the estoppel-by-delay theory, the record is clear that Gall was not
simply sitting on his hands all this time. He was first fighting the Commonwealth’s
decision to turn him over to the custody of Ohio and then spent four years in state court
seeking expungement of the conviction. We therefore find that the passage of time does
not, in this case, preclude or affect Gall’s right to seek expungement of the conviction.

9
At issue in Gentry was merely the question whether the federal courts have the authority and
jurisdiction to order the state to expunge an unconstitutional conviction. In the course of answering those
questions in the affirmative, we held that a petitioner need not “exhaust” his state court remedies seeking
expungement before asking that the federal court order expungement. 456 F.3d at 695-96. That holding
applies with equal force going the opposite direction—a petitioner may seek expungement from the state
courts in the first instance without waiving his or her ability later to seek this relief from the federal court.
No. 08-6553 Gall v. Scroggy Page 15

F. Neither comity nor the ends of justice bar expungement of the conviction.

The Commonwealth argues that notions of comity and justice should prevent
Gall from having the conviction expunged from his record. As to comity, the
Commonwealth argues that the state court declined to exercise its equitable powers to
vacate the conviction and that the federal courts should therefore defer to the state
court’s reasoning and conclusions. In its briefing, the Commonwealth correctly
summarizes the Kentucky Court of Appeals’s decision to deny Gall relief as resting on
three main points: “deference to the federal courts [sic] failure to grant such relief in
2001, Gall’s procedural default of this issue in his subsequent appeal, and the specific
circumstances of Gall’s case (and reversal) - including Gall’s factual guilt for
manslaughter.” (Appellant’s Br. at 24-25.) On the first point, as we have already noted,
we do not understand the federal court in 2001 to have made a substantive decision on
the expungement issue. Thus, as there was no federal decision on the issue to which the
state should have deferred, we see no justification for completing the circle by deferring
to the state court’s deference to the federal court. On the second point, we have already
rejected the procedural default argument and see no comity-based justification for
deferring to what amounts to a state court’s prediction of how a federal court will apply
its own procedural rules for purposes of procedural default. On the third point, the fact
that Gall may actually be guilty of manslaughter10 is irrelevant because the fact remains
that he has a legally void murder conviction on his record. There is no legal support for
the notion that Gall should have a conviction on his record, so any
conviction—regardless of its lack of constitutional justification—will do. Finally,
separate and apart from the Kentucky court’s rationales, we see no compelling
justification to accord any comity- or federalism-based deference to the state court in this
case when the central question is the scope and effect of a federal court’s judgment.

10
In Gall III, we noted that because the Commonwealth had failed to prove that Gall lacked
extreme emotional disturbance at the time of the murder—an element of first-degree murder in Kentucky
at the time of Gall’s conviction—the most that could be said was that the Commonwealth had established
all of the elements of the lesser offense of manslaughter. However, the statutory maximum sentence for
manslaughter under Kentucky law was twenty years, and Gall had already served more than twenty years
in prison by the time we issued our decision in Gall III. Thus, double jeopardy barred the Commonwealth
from re-prosecuting Gall for manslaughter. 231 F.3d at 335-36. Accordingly, though Gall may be
factually guilty of manslaughter, the Commonwealth has never convicted him of that crime.
No. 08-6553 Gall v. Scroggy Page 16

The Commonwealth’s final argument is that, given our statements in Gall III that
Gall presents a continued risk of danger to society and should “never be allowed to
become a free member of the society again,” 231 F.3d at 336, we should not order
expungement of the conviction when doing so may aid in Gall becoming a free member
of society again. While this argument may have a superficial political or moral appeal,
we nevertheless find it legally unpersuasive. The Commonwealth convicted Gall of
murder in violation of the Constitution, and our system does not recognize the concept
of a conviction being only a little bit unconstitutional. It either is or is not; there is no
middle ground from which the state may continue in a Kafka-esque manner to hold
certain aspects of the conviction over the petitioner’s head.11 Instead, the necessary and
unescapable result of finding a conviction unconstitutional is that the conviction must
be expunged and certainly may not be used in any manner that would be adverse or
prejudicial to the petitioner. Although the Commonwealth is free to continue to disagree
with our decision in 2000, the decision is final and binding and the Commonwealth has
no authority to disregard it.

Furthermore, we explicitly gave the Commonwealth the opportunity to ensure
that Gall never re-enters free society when we made provision for the Commonwealth
to initiate involuntary commitment proceedings. The Commonwealth declined and
instead transferred Gall to Ohio to serve prison time on different charges. This was the
Commonwealth’s decision, not ours and not Gall’s, and we assume—indeed hope—that
the Commonwealth made the decision with full understanding of the possibility of
parole. Having made its decision, the Commonwealth cannot now complain of its
consequences and certainly may not seek to impose unconstitutional effects on Gall in
order to negate its perhaps ill-considered decision.

11
In The Trial, Franz Kafka described a totalitarian state in which the judicial system was used
to suppress freedom. One of the techniques used was non-final “acquittals.” Kafka describes these
“acquittals” as follows: “That is to say, when [the accused] is acquitted in this fashion the charge is lifted
from [his] shoulders for the time being, but it continues to hover above [him] and can, as soon as an order
comes from on high, be laid upon [him] again.” Franz Kafka, The Trial 158 (Willa & Edwin Muir, trans.,
Alfred A. Knopf, rev. ed. 1992).
No. 08-6553 Gall v. Scroggy Page 17

IV.

For the reasons set forth above, we AFFIRM the decision of the district court.
No. 08-6553 Gall v. Scroggy Page 18

___________________

DISSENT
___________________

JACK ZOUHARY, District Judge. Under the peculiar circumstances of this
case, the relief Gall seeks will be of no consequence, and this appeal is therefore moot.

The mootness doctrine derives from Article III’s case-or-controversy
requirement, which “subsists through all stages of federal judicial proceedings, trial and
appellate.” Spencer v. Kemna, 523 U.S. 1, 7 (1998) (internal quotation omitted). “The
parties must continue to have a personal stake in the outcome of the lawsuit.” Id. For
habeas suits, once a petitioner is no longer incarcerated, some other “concrete and
continuing injury . . . -- some ‘collateral consequence’ of the conviction -- must exist if
the suit is to be maintained.” Id. (citing Carafas v. LaVallee, 391 U.S. 234, 237-38
(1968)).

There is a well-recognized presumption that wrongful criminal convictions carry
collateral consequences. See, e.g., Gentry v. Deuth, 456 F.3d 687, 694-95 (6th Cir.
2006) (“[T]he disabilities consequent to a felony conviction are legion, and patently
obvious in many cases.”). However, that presumption is rebuttable,1 and determining
whether continuing habeas jurisdiction exists requires examination of the circumstances
of a given case. See, e.g., Perez v. Greiner, 296 F.3d 123, 125-26 (2d Cir. 2002) (finding
“no material possibility that [the petitioner] will suffer collateral consequences on the
basis of the challenged conviction” where the petitioner was already permanently
ineligible to return to the United States because of his conviction on an unrelated drug
charge).

1
One panel of the Ninth Circuit has held that the presumption of collateral consequences flowing
from criminal convictions is irrebuttable, Chacon v. Wood, 36 F.3d 1459, 1463 (9th Cir. 1994), but this
holding has been criticized even within the Ninth Circuit, Larche v. Simons, 53 F.3d 1068, 1070-71 (9th
Cir. 1995), and no other circuit has signed on to the Ninth Circuit’s position.
In the instant case, the majority would require the Commonwealth to “establish conclusively that
the collateral consequences will not come to pass.” Maj. Op. at 11, n.8. This approach would make the
presumption of collateral consequences effectively irrebuttable. Overcoming the presumption will
admittedly be rare, but the Commonwealth has done so here.
No. 08-6553 Gall v. Scroggy Page 19

In this case, Gall is incarcerated in Ohio on convictions for rape, attempted rape,
and aggravated burglary unrelated to the Kentucky murder conviction he wants wiped
off the books. The normal presumption of collateral consequences -- quite appropriate
in cases where the petitioner is actually released -- does not hold here. This is not a case
where the petitioner is a free citizen who suffers certain and obvious disabilities as a
result of his status as a convicted felon. Rather, Gall’s freedom is restricted for reasons
wholly apart from the unconstitutional Kentucky conviction, and the relief he currently
seeks will do nothing to change his status as an Ohio prisoner.

The sole collateral consequence claimed by Gall is the possible effect of the
Kentucky murder conviction on the decision of the Ohio Parole Board when he becomes
eligible for parole eleven years from now. But parole decisions are not made simply by
tallying the number of past convictions on a prisoner’s record. The Ohio Parole Board
has broad discretion to grant or deny parole “if in its judgment there is reasonable
ground to believe that . . . paroling the prisoner would further the interests of justice and
be consistent with the welfare and security of society.” Ohio Rev. Code § 2967.03. In
making this determination, the Parole Board “may investigate and examine . . . [the
prisoner’s] mental and moral qualities and characteristics . . . and any other matter[]
affecting [the prisoner’s] fitness to be at liberty without being a threat to society.” Id.
This statutory language (as well as common sense) allows the Parole Board to consider
Gall’s entire history -- both legal and factual -- in determining his suitability for parole.
The Parole Board’s broad discretion in this regard is reflected in the former Ohio Parole
Guidelines, which specifically provided that “[i]f a conviction found to be
[constitutionally] invalid is nonetheless supported by persuasive information that the
offender committed the criminal act, this information may be considered as a negative
indicant of parole prognosis[.]” OHIO PAROLE BOARD GUIDELINES MANUAL, Part C,
§ A.7 (3d ed. July 1, 2007).2

2
Available at http://www.drc.ohio.gov/web/GuidelineManual07.pdf. On April 1, 2010,
those Guidelines were rescinded by the Parole Board, in favor of an approach
that gives the Board even more discretion to consider relevant facts in an individual
prisoner’s case. See OHIO PAROLE BOARD HANDBOOK, pp. 2-3 (April 1, 2010), available at
http://www.drc.ohio.gov/web/Parole%20Board%20Handbook %204-1-2010%20(2).pdf.
No. 08-6553 Gall v. Scroggy Page 20

Gall’s history includes “overwhelming” evidence that he killed Lisa Jansen, Gall
III, 231 F.3d at 281, as well as evidence of extreme emotional disturbance -- the reason
this court found his conviction to be unconstitutional, id. at 336. This court properly
granted Gall habeas relief, while noting that it was “evident that Eugene Gall was the
man who cut [Lisa Jansen’s] life short,” id. at 277, and that “he would be extremely
dangerous to his fellow citizens if released,” id. at 336. It is naive to think the Parole
Board would fail to consider the factual history of Gall’s Kentucky case, whether or not
his record contains an official notation of that conviction. Indeed, the Parole Board
would be remiss if it overlooked the strong evidence of violence and emotional
instability underlying Gall’s conviction. And Gall cannot create a case or controversy
simply by hoping the Board might fail to discover his background. The Ohio Parole
Board will have before it the facts underlying the Kentucky case and the published
opinion in Gall III showing the murder conviction was invalid.

In short, Gall has no current dispute with the Commonwealth that would make
any difference in his status as an Ohio inmate or otherwise. The Ohio Parole Board can
properly investigate and consider both the facts underlying Gall’s Kentucky conviction
and the ruling in Gall III. Future discretionary decisions that depend on the underlying
facts of a case, rather than the legal label placed on the outcome, do not support a finding
of collateral consequences. Cf. Lane v. Williams, 455 U.S. 624, 632-633 (1982) (voiding
a record of a parole violation has little practical effect on discretionary decisions by
employers or sentencing judges, who are influenced more by the conduct underlying the
violation than by the official record of the violation).

As the above discussion suggests, the mootness analysis here is not controlled
by Gentry v. Deuth. In Gentry, unlike this case, the petitioner had been released from
custody prior to her request for expungement. 456 F.3d at 694-95. Noting the
presumption of collateral consequences that applies in such circumstances, as well as the
numerous Kentucky statutes that would affect her as a convicted felon, the Gentry court
held that there was sufficient injury to avoid mootness. Id. In other words, her record
of conviction had obvious consequences for her as a free citizen. In this case, by
No. 08-6553 Gall v. Scroggy Page 21

contrast, Gall faces no collateral consequences as a result of his conviction, as there is
no practical possibility that expungement of the 1978 conviction will affect his release
from the Ohio prison system. Under Ohio law and the Parole Guidelines, the Parole
Board has broad discretion to consider the Kentucky murder even if the conviction was
invalid.

The majority glides over this critical analysis by simply adopting this court’s
Gall IV conclusion that Gall suffers from collateral consequences. But that was then,
this is now, and there is an important difference. Gall had a clear stake in the outcome
of Gall IV, unlike the present dispute. His position in Gall IV was that the
Commonwealth was required to institute civil commitment proceedings, and that his
extradition and incarceration in Ohio were therefore inappropriate. Incarceration and
civil commitment are entirely distinct circumstances, and thus Gall had a concrete
interest in litigating Gall IV. But once this court ruled on that issue, Gall’s dispute with
the Commonwealth was over for all practical purposes.

Moreover, the majority should not assume this case matters simply because the
Commonwealth has vigorously opposed Gall’s request for expungement. Regardless
how loud or strident the protests from either party, federal courts must always inquire
into the threshold issue of jurisdiction. See Bender v. Williamsport Area School Dist.,
475 U.S. 534, 541 (1986) (“[E]very federal appellate court has a special obligation to
satisfy itself not only of its own jurisdiction, but also that of the lower courts in a cause
under review, even though the parties are prepared to concede it.”) (internal quotation
omitted). No matter the din, the relief Gall seeks here is of no consequence.

Because this case is moot, I would not reach the question of whether federal
habeas law required the district court to order expungement of the 1978 conviction.
Nonetheless, a few comments are appropriate.

This case has a convoluted history stemming from varied efforts to balance the
unconstitutionality of Gall’s conviction with his potential danger to the public if
released. In Gall III, this court struck that balance by conditioning habeas relief on the
Commonwealth initiating civil commitment proceedings. The Commonwealth chose a
No. 08-6553 Gall v. Scroggy Page 22

different path by extraditing Gall to Ohio -- an action this court did not anticipate but
nevertheless found permissible in Gall IV.

In the current round of this dispute, the majority gives no thought to balancing
Gall’s entitlement to habeas relief with the potential danger of his release. Instead, the
majority simply declares that a conviction “either is [constitutional] or is not; there is no
middle ground from which a state may continue in a Kafka-esque manner to hold certain
aspects of the conviction over the petitioner’s head.” Maj. Op. at 16. Such a rhetorical
flourish obscures the difference between relief from Gall’s unconstitutional conviction
and consideration of his mental instability for purposes of parole. Indeed, the Gall III
court was perfectly willing to hold Gall’s mental instability over his head by expecting
him to be civilly committed. A habeas court can and should consider public safety in
order to fashion relief “as law and justice require.” 28 U.S.C. § 2243.

Regardless, in this case, the question is academic, as ordering expungement will
not make a bit of difference. The federal courts have had their say, several times over,
and Gall’s future is now in the hands of the Ohio Parole Board, which may properly
consider Gall’s actions in Kentucky. I would hold that this case is moot and,
accordingly, respectfully dissent.