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No. 95-3629
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Randy G. Spencer, *
*
Appellant, *
* Appeal from the United States
v. * District Court for the
* Western District of Missouri.
Mike Kemna; *
Missouri Attorney General, *
*
Appellees. *
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Submitted: May 17, 1996
Filed: August 2, 1996
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Before BOWMAN, HEANEY, and WOLLMAN, Circuit Judges.
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WOLLMAN, Circuit Judge.
Randy G. Spencer appeals the district court's1 dismissal of his 28
U.S.C. § 2254 petition as moot. We affirm.
I.
Spencer was convicted in Missouri state court of felony stealing and
burglary and was sentenced to concurrent terms of three years'
imprisonment. He began serving his sentences on October 17, 1990, and was
paroled on April 16, 1992. Spencer's parole was revoked on September 24,
1992, following a revocation hearing before the Missouri Board of Probation
and Parole. The Board revoked Spencer's parole based on a violation report
alleging that he had committed rape, used cocaine, and used a dangerous
1
The Honorable Elmo B. Hunter, United States District Judge
for the Western District of Missouri.
weapon.
Spencer filed this section 2254 petition on April 1, 1993, against
Mike Kemna, Superintendent of the Western Missouri Correctional Center, and
the Attorney General of Missouri (the State). The petition alleged that:
(1) Spencer was denied the right to a preliminary hearing on his parole
violations; (2) his conditional release date of October 16, 1992, was
suspended without a hearing; (3) his parole revocation hearing violated his
due process rights, in that he was denied counsel, he was not allowed to
confront adverse witnesses, and the sole evidence against him was the
violation report; and (4) he had to wait four months to receive a statement
of the reasons why his parole was revoked.
The district court ordered the State to show cause by June 3, 1993,
why Spencer's habeas relief should not be granted. The State requested and
received two extensions of time until July 7 to file a response. Spencer
objected to both motions for extensions of time, stating that the requests
for extensions were designed to vex, harass, and infringe upon his
substantive rights. The State filed a response to the show cause order on
July 7, arguing that Spencer's claims were procedurally barred, or,
alternatively, that the claims should be dismissed on their merits.
On July 14, Spencer filed a motion for final disposition of the
matter, arguing that because he could be released as early as August 7, he
would suffer irreparable harm if his petition was not decided before that
date, in that his petition would become moot and he would have no other way
to vindicate his rights. Spencer alleged that the State's motive in
requesting extensions was to cause his petition to become moot. He also
argued the merits of his petition.
Spencer was released on parole on August 7, 1993, and was discharged
from parole upon completion of his sentences on October
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16. On February 3, 1994, the district court noted Spencer's motion for
final disposition and stated that "[t]he resolution of this case will not
be delayed beyond the requirements of this Court's docket." On August 23,
1995, the district court dismissed the petition for habeas relief as moot
because the sentences had expired.
Spencer argues on appeal that the district court erred in denying his
petition as moot because the court's own delays caused the petition to
become moot, he will suffer adverse future consequences due to the denial
of the petition, and it is in the public interest to address the merits of
his petition. Spencer notes that he is currently incarcerated on unrelated
charges and that his prior parole revocation will affect his future chances
of obtaining parole.
II.
An attack on a criminal conviction is not rendered moot by the fact
that the underlying sentence has expired if substantial penalties remain
after the satisfaction of the sentence. Carafas v. LaVallee, 391 U.S. 234,
237 (1968). Such penalties include the right to engage in certain
businesses, to hold certain offices, to vote in state elections, or to
serve as a juror. Id. The court will, in fact, presume that collateral
consequences stem from a criminal conviction even after release. See
Sibron v. New York, 392 U.S. 40, 57 (1968); Leonard v. Nix, 55 F.3d 370,
373 (8th Cir. 1995). The Supreme Court has held, however, that no similar
penalties result from a finding that an individual has violated parole.
Lane v. Williams, 455 U.S. 624, 632 (1982).
In Lane, two defendants pleaded guilty to state court prosecutions
without being informed that their negotiated sentences included a mandatory
parole term. Both were released on parole and reincarcerated for parole
violations, and both filed habeas corpus
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petitions requesting their release. Both had completed their parole terms
by the time the court of appeals entered an order declaring the mandatory
parole terms void. Id. at 265-30. The Supreme Court determined that the
petitions were moot because the petitioners attacked only their sentences,
which had expired; they did not attack, either on substantive or procedural
grounds, the finding that they violated the terms of their parole. Id. at
631, 633.
The Court went on to find that, unlike a criminal conviction, no
civil disabilities result from a parole violation finding. The Court
stated that "[a]t most, certain nonstatutory consequences may occur." Id.
at 632. The Court found that the collateral consequence arising from the
possible effect of the parole revocation on future parole decisions was
"insufficient to bring this case within the doctrine of Carafas." Id. at
632 n.13. Relying on the relevant Illinois law, the Court noted that the
existence of a prior parole violation did not render an individual
ineligible for parole, but was simply one factor among many considered by
the parole board. Id. at 633 n.13.
We have dismissed a habeas corpus appeal challenging a parole
revocation for lack of jurisdiction as moot when the movant was again
paroled before the case was orally argued. Watts v. Petrovsky, 757 F.2d
964, 965-66 (8th Cir. 1985) (per curiam). We considered as too speculative
to overcome mootness the argument that the movant's parole could once again
be revoked and the prior parole revocation report used against him. Id.
at 966.
Spencer first attempts to distinguish Lane on the ground that, unlike
the petitioners in that case, he attacked not only his sentence, but also
the underlying basis of his parole violations. This distinction has been
used by courts of appeals in other circuits to overcome mootness in the
parole revocation context. See United States v. Parker, 952 F.2d 31, 33
(2d Cir. 1991);
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Robbins v. Christianson, 904 F.2d 492, 495-96 (9th Cir. 1990). It must be
recognized, however, that the Court in Lane went on to hold that the
possible collateral consequences in future parole hearings stemming from
a finding of parole violation are insufficient to overcome mootness. Lane,
455 U.S. at 632-33 & n.13. This part of the Court's holding Spencer cannot
overcome.
Spencer attempts to further distinguish Lane on the ground that it
relies on Illinois, rather than Missouri, law. We find this purported
distinction unpersuasive. The Illinois regulations relied upon in Lane
explicitly provided that the parole board should consider an individual's
prior parole violations as a factor in determining whether parole should
be granted. Lane, 455 U.S. at 639 (Marshall, J., dissenting). Under
Missouri statutes and regulations, the Board does not explicitly rely on
a prior parole violation even as one factor in its decision regarding
whether to grant parole.2 Lane's holding, therefore, is even more
2
The Missouri statute concerning parole provides, in relevant
part:
When in its opinion there is reasonable probability that
an offender of a correctional center can be released
without detriment to the community or to himself, the
board may in its discretion release or parole such person
except as otherwise prohibited by law.
Mo. Rev. Stat. § 217.690.1 (1994).
In addition, the statute provides that "[t]he Board shall
adopt rules . . . with respect to the eligibility of offenders for
parole." Mo. Rev. Stat. § 217.690.3 (1994).
Pursuant to this section, the board has adopted regulations
stating that the reasons for its decisions to deny parole include:
1. Release at this time would depreciate the
seriousness of the offense committed or promote
disrespect for the law;
2. There does not appear to be a reasonable
probability at this time that the inmate would live
and remain at liberty without violating the law;
3. The inmate has not substantially observed the rules
of the institution in which confined; and
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applicable
4. Release at this time is not in the best interest of
society.
Mo. Code Regs. tit. 14, § 80-2.010(9)(A) (1992).
The regulations explicitly state that a parole violator "can
be considered for parole at a later time." Mo. Code Regs. tit. 14,
§ 80-4.030(4) (1992).
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to a case arising under Missouri law.
Spencer finally attempts to distinguish his case from both Lane and
Watts on the ground that the collateral consequences of his parole
revocation are not speculative as to him, in that he is once again
incarcerated and is facing new parole hearings. Although Spencer's
possible collateral consequences are not as speculative as those in Watts,
757 F.2d at 966, we conclude that they remain too speculative to overcome
a finding of mootness. Given the Board's wide discretion in releasing a
prisoner on parole, we cannot say that the Board will rely on Spencer's
previous parole violation in making its decision. Moreover, Spencer placed
himself in his present position, in which collateral consequences stemming
from his parole revocation become more likely. As noted of the petitioners
in Lane, Spencer was "able--and indeed required by law--to prevent such a
possibility from occurring." Lane, 455 U.S. at 633 n.13.
III.
Spencer argues that his action should not be dismissed as moot
because the important public interest in due process in parole revocation
proceedings excepts his case from the mootness doctrine. He argues that
because of the important public interest, he need not show that he will be
personally affected by the outcome.
To be excepted from the mootness doctrine, the matter must be
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"`capable of repetition, yet evading review,'" and there must be "`a
reasonable expectation that the complaining party would be subjected to the
same action again.'" Lane, 455 U.S. at 633-34 (quoted citations omitted);
see also DeFunis v. Odegaard, 416 U.S. 312, 316 (1974) (per curiam)
(although state law may save case from mootness based on public interest,
federal courts require litigants' rights be affected). Spencer must show
a "reasonable likelihood" that he will be affected by the Board's allegedly
unconstitutional parole revocation procedures in the future. See Honig v.
Doe, 484 U.S. 305, 318 (1988). "[A] mere physical or theoretical
possibility" is insufficient to satisfy the test. Murphy v. Hunt, 455 U.S.
478, 482 (1982).
We do not find a reasonable likelihood that Spencer will again be
affected by the Board's parole revocation procedures. Assuming that
Spencer is paroled from his present incarceration, we will not assume that
he will violate his parole terms in order to again undergo revocation
proceedings. See Honig, 484 U.S. at 320 (generally unwilling to assume
party will repeat misconduct).
The order of dismissal is affirmed.
HEANEY, Circuit Judge, concurring.
I concur in the result reached by the majority only because I agree
we are bound by the United States Supreme Court's decision in Lane v.
Williams, 455 U.S. 624 (1982). Were I writing on a clean slate, I would
reverse the district court because it seems clear that Spencer may suffer
collateral consequences as a result of the revocation of his parole.
It is unfortunate that the decision on whether the revocation hearing
comported with due process was delayed for so long that the matter became
moot by Spencer's release from prison. If nothing else, this case
highlights the necessity of making prompt decisions
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in revocation cases.
A true copy.
Attest:
CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.
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