FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
MARC A. BURNETT,
Petitioner-Appellant,
No. 04-35305
v.
ROBERT O. LAMPERT; OREGON D.C. No.
CV-02-00673-REJ
BOARD OF PAROLE AND POST PRISON
OPINION
SUPERVISION,
Respondents-Appellees.
Appeal from the United States District Court
for the District of Oregon
Robert E. Jones, District Judge, Presiding
Argued and Submitted
September 13, 2005—Portland, Oregon
Filed December 27, 2005
Before: Raymond C. Fisher, Ronald M. Gould and
Carlos T. Bea, Circuit Judges.
Opinion by Judge Fisher
16735
BURNETT v. LAMPERT 16737
COUNSEL
C. Renée Manes, Assistant Federal Public Defender, District
of Oregon, Portland, Oregon, for the petitioner-appellant.
Carolyn Alexander, Assistant Attorney General, Portland,
Oregon, for the respondent-appellee.
OPINION
FISHER, Circuit Judge:
The Oregon Board of Parole and Post-Prison Supervision
(“Board”) twice deferred Marc Alan Burnett’s scheduled
parole release date. Burnett argues that the Board’s deferrals
were unconstitutional and directly resulted in his suffering
three years and eight months of unlawful imprisonment.
Burnett challenged the deferrals directly in state court and
then with a habeas corpus petition in federal district court.
While his federal habeas petition was pending, he was
released on parole. Before the district court considered his
petition, however, Burnett violated the conditions of his
parole and he was reimprisoned, leading the district court to
dismiss his habeas petition as moot. Burnett argues that his
16738 BURNETT v. LAMPERT
substantive constitutional claims are not moot because the
court can reduce his current prison term (resulting from his
parole violation) by the three years and eight months of alleg-
edly illegal detention. Burnett does not challenge his original
sentence or his reimprisonment following his parole violation,
however. We review the district court’s decision to deny Bur-
nett’s habeas petition de novo, see Leavitt v. Arave, 383 F.3d
809, 815 (9th Cir. 2004) (per curiam) (as amended), and con-
clude that we cannot grant him habeas relief even if he were
able to prove that his scheduled parole release dates were
unconstitutionally deferred. We therefore affirm the district
court’s dismissal of Burnett’s habeas petition as moot.
I. Background
In December 1987, Burnett was convicted of two counts of
rape in the first degree and one count of robbery in the first
degree by an Oregon state court. In January 1988, he was sen-
tenced to a total of 40 years in prison, with a 20 year mini-
mum under Oregon’s indeterminate “matrix” sentencing
system.1 In February 1989, the Board set an initial parole
release date of August 27, 1998, thereby reducing Burnett’s
period of imprisonment below his minimum sentence of 20
years to 130 months. Over time, the Board made several fur-
1
The Oregon Court of Appeals provided the following illustration of the
extent of the Board’s discretion in determining the length of time an
inmate actually spends behind bars under the indeterminate “matrix” sen-
tencing system:
[T]he parole system allows the Board to release an inmate who
has not finished serving his or her indeterminate prison sentence,
and that person may be kept on parole until the sentence expires.
Thus, a person serving a 10-year indeterminate sentence who was
paroled after five years could be kept on parole for another five
years, whereas a person serving a 10-year indeterminate sentence
who was paroled after seven years could be kept on parole only
for another three years. In short, there is no direct correlation
between when one is paroled and when one’s parole terminates.
Barnes v. Thompson, 977 P.2d 431, 432 (Or. App. 1999).
BURNETT v. LAMPERT 16739
ther adjustments to his parole release date (none of which
Burnett challenges) such that as of January 17, 1996, Burnett
was scheduled to be paroled on January 28, 1999.
At the Board’s request, a licensed psychologist evaluated
Burnett and submitted a report to the Board in April 1998. At
a hearing in June 1998, the Board considered the psychologi-
cal evaluation as well as unspecified other information and
found that Burnett suffered from “a present severe emotional
disturbance such as to constitute a danger to the health and
safety of the community.” The Board extended Burnett’s
parole release date by 24 months — to January 28, 2001 —
based on that finding. Burnett’s administrative review petition
challenging that deferral was denied in December 1998. In
June 1999, Burnett filed a state habeas petition, which was
denied in September 1999. The Oregon Court of Appeals
affirmed, see Burnett v. Lampert, 25 P.3d 337 (Or. App.
2001), and the Oregon Supreme Court denied further review.
Another psychologist examined Burnett in December 1999
in preparation for a March 2000 Board hearing. At that hear-
ing, the Board again “conclude[d] that [Burnett] suffers from
a present severe emotional disturbance that constitutes a dan-
ger to the health or safety of the community” and extended his
parole release date by another 24 months — to September 28,
2002.2 In May 2000, Burnett’s administrative review petition
challenging the Board’s March 2000 deferral was unsuccess-
ful. An Oregon circuit court agreed with Burnett, however,
and granted his state habeas petition in December 2000, find-
ing that “the Board didn’t have a sufficient basis for not grant-
ing [Burnett] parole,” and ordered him paroled within 60 days
2
In April 1999, after the Board’s first 24-month parole date deferral but
before the second deferral, the Board granted Burnett a 4-month good
behavior credit, thereby accelerating his release date from January 28,
2001 to September 28, 2000. The Board calculated the second 24-month
parole date deferral based on the September 28, 2000 release date it had
set in April 1999.
16740 BURNETT v. LAMPERT
unless the Board filed an appeal. Burnett was not released
within the 60-day period because the Board initially appealed
the state court’s decision. The Board later dropped its appeal,
but the Board did not then comply with the release order for
reasons that are not clear from the record.
Eventually, Burnett was released on parole on September
28, 2002, subject to a number of conditions and under “ac-
tive” supervision for a minimum period of 36 months.3 See
Or. Admin. R. 255-094-0000(2)(h) (2005). In March 2003,
Burnett was arrested for violating the conditions of his parole.
The Board revoked his parole, and in July 2003 reset his
release date to October 5, 2013, thereby imposing a 127-
month term of imprisonment. Burnett initially appealed his
revocation to the Oregon Court of Appeals, but withdrew his
appeal in February 2005.
Previously — in May 2002, before he was paroled — Bur-
nett had filed his petition for federal habeas corpus relief,
3
Oregon defines “active” supervision as “[s]upervision requiring the
supervising officer’s regular contact and monitoring to assure continued
compliance with the general and special conditions of parole or post-
prison supervision.” Or. Admin. R. 255-005-0005(3) (2005). In contrast,
under “inactive” supervision,
[t]he offender remains under supervision however;
(a) There is no direct supervision by a supervising officer and
no requirement of regular reporting;
(b) There are no additional supervision fees; and
(c) The offender remains subject to arrest by a supervising offi-
cer for violation of conditions of supervision and return to active
supervision at any time until expiration of the sentence or post-
prison supervision term . . . .
Or. Admin. R. 255-005-0005(21) (2005). After the mandatory initial 36-
month period of active supervision, Burnett’s transfer to inactive supervi-
sion status is entirely at the Board’s discretion. See Odle v. Thompson, 26
P.3d 177, 178 (Or. App. 2001) (“even if plaintiff should have been
released in April 1997, he is nonetheless not entitled, at any stage of
parole, to be placed on inactive supervision”) (emphasis in original).
BURNETT v. LAMPERT 16741
alleging that the Board’s deferrals of his release date based on
psychological evaluations violated the Due Process Clause of
the Fourteenth Amendment and the ex post facto clause of the
Oregon Constitution. See Or. Const. art. I, § 21. The district
court considered Burnett’s habeas petition in February 2004
— after his parole had been revoked — and dismissed it as
moot. Burnett filed a timely notice of appeal with this court.
We have jurisdiction under 28 U.S.C. § 2253(a), and affirm
the district court’s dismissal.
II. Discussion: Mootness
[1] Article III, Section 2 of the United States Constitution
establishes the scope of federal court jurisdiction, which
includes “all Cases . . . arising under this Constitution . . .
[and] Controversies to which the United States shall be a
Party . . . .” The Supreme Court has concluded that “[t]he
Constitution’s case-or-controversy limitation on federal judi-
cial authority . . . underpins . . . our mootness jurisprudence
. . . .” Friends of the Earth, Inc. v. Laidlaw Envtl. Servs.
(TOC), Inc., 528 U.S. 167, 180 (2000). Mootness is jurisdic-
tional. See Cole v. Oroville Union High Sch. Dist., 228 F.3d
1092, 1098 (9th Cir. 2000). “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.’ ” Spencer v.
Kemna, 523 U.S. 1, 7 (1998) (quoting Lewis v. Continental
Bank Corp., 494 U.S. 472, 477 (1990)).
[2] Burnett argues that his actual injury traceable to the
State of Oregon is the Board’s allegedly unconstitutional
deferral of his parole release date by three years and eight
months. Because of the specific circumstances of this case —
namely Burnett’s release on parole and his subsequent reim-
prisonment for a parole violation — our ability to redress Bur-
nett’s alleged injury with a favorable judicial decision is
limited by the nature of habeas corpus relief. Our analysis is
specifically limited to the sort of equitable relief we may grant
16742 BURNETT v. LAMPERT
in response to a habeas petition, the only type of relief Burnett
seeks. We do not decide whether Burnett has other remedies
for the three-year, eight-month period of allegedly illegal
imprisonment.4
[3] “[T]he essence of habeas corpus is an attack by a person
in custody upon the legality of that custody, and . . . the tradi-
tional function of the writ is to secure release from illegal cus-
tody.” Preiser v. Rodriguez, 411 U.S. 475, 484 (1973).
Federal courts have a fair amount of flexibility in fashioning
specific habeas relief. “A federal court is vested with the larg-
est power to control and direct the form of judgment to be
entered in cases brought up before it on habeas corpus. The
court is free to fashion the remedy as law and justice require
and is not required to order petitioner’s immediate release
from physical custody.” Sanders v. Ratelle, 21 F.3d 1446,
1461 (9th Cir. 1994) (internal quotation marks and citations
omitted).
[4] Burnett urges us to use our equitable power to fashion
habeas relief to accelerate his current projected release date of
October 5, 2013 by three years and eight months — the length
of time he claims he was held in illegal custody. But Burnett
does not allege he is currently being held in illegal custody.
Indeed, he challenges neither the legality of his original con-
viction and sentence nor the legality of his reimprisonment
after Oregon authorities judged him to be in violation of his
4
See, e.g., 42 U.S.C. § 1983 (monetary damages). See also Heck v.
Humphrey, 512 U.S. 477, 487 (1994) (“[I]f the district court determines
that the plaintiff’s [§ 1983] action, even if successful, will not demonstrate
the invalidity of any outstanding criminal judgment against the plaintiff,
the action should be allowed to proceed . . . .”) (emphasis in original);
Nonnette v. Small, 316 F.3d 872, 876 (9th Cir. 2002) (“[T]he unavaila-
bility of a remedy in habeas corpus because of mootness [does] permit [an
inmate] to maintain a § 1983 action for damages, even though success in
that action would imply the invalidity of the disciplinary proceeding that
caused revocation of his good-time credits.”) (interpreting Heck v. Hum-
phrey).
BURNETT v. LAMPERT 16743
parole conditions. Burnett also does not allege that he suffers
from any collateral consequences as a result of the deferral of
his parole release date. See Spencer, 523 U.S. at 7.
Although both the three-year, eight-month period of incar-
ceration Burnett is challenging and his current 127-month
period of incarceration following his parole violation ulti-
mately stem from the same conviction for rape and robbery,
the two periods of time are not fungible. The immediate rea-
son Burnett finds himself in Oregon state custody is not
because his parole release date was delayed, but because he
violated the terms of his parole after he was released.
[5] Burnett urges us to follow McQuillion v. Duncan, 342
F.3d 1012 (9th Cir. 2003) (“McQuillion II”), and advance his
currently scheduled parole release date by three years and
eight months, thereby remedying his alleged injury-in-fact.
But McQuillion II’s logic does not apply here because
McQuillion had not been released on parole when this court
considered his habeas petition, whereas Burnett has been
released and reimprisoned for a parole violation. We would
have been essentially lengthening McQuillion’s sentence if
we had ruled that he was required to serve a term of parole
after his release from prison. By the time the McQuillion II
court heard the case, McQuillion had already served more
time in prison than his lawful period of imprisonment and
parole combined. Id. at 1015.5 In contrast, although Burnett
5
In McQuillion II, the warden of the California prison where McQuil-
lion was being held challenged a previous decision of this court granting
McQuillion’s habeas petition and ordering his release from custody. See
id. at 1015. See also McQuillion v. Duncan, 306 F.3d 895 (9th Cir. 2002)
(“McQuillion I”). The warden argued that “McQuillion should not be
released immediately without an accompanying three-year period of
parole.” McQuillion II, 342 F.3d at 1015. This court responded “that if
McQuillion had been released on the date to which he was entitled, he
would have been released in May 1994. The three-year parole, which he
would have been required to serve if he had been released on time, has
long since expired.” Id. Although McQuillion II did not acknowledge that
the three-year mandatory period of parole was only a minimum and could
16744 BURNETT v. LAMPERT
has not yet served the entirety of his sentence, he is asking us
to shorten the length of time he is to spend in prison. For us
to accelerate Burnett’s current parole release date by three
years and eight months as he suggests, we would necessarily
have to question either the validity of his original sentence (or
a portion of it) or his reimprisonment following his parole
violation — two issues that are not before us.6
III. Conclusion
[6] The “actual injury traceable to the [State of Oregon]”
for which Burnett seeks relief cannot be “redressed by a
favorable . . . decision” of the court issuing a writ of habeas
corpus. Spencer, 523 U.S. at 7. We hold that Burnett’s release
on parole and subsequent reimprisonment render his habeas
corpus petition moot. We do not reach the merits of his petition.7
AFFIRMED.
have been extended, see Cal. Code Regs. tit. 15, § 2515(a) (2005), the
maximum period of parole for someone in McQuillion’s position was only
four years, see id. § 2515(e). This period, too, “ha[d] long since expired.”
Therefore, if McQuillion’s parole date had not been improperly deferred,
he would have served out his three- to four-year parole and then been a
free man by the time this court heard the warden’s appeal.
6
Burnett contends that Brown v. Palmateer, 379 F.3d 1089 (9th Cir.
2004), is a case “factually indistinguishable” from his own. That is incor-
rect. Brown, like Burnett, was imprisoned in Oregon and, also similar to
Burnett, alleged that “the method by which the Board decided whether to
postpone a prisoner’s parole date” based on an evaluation of his mental
health violated the Ex Post Facto Clause. Id. at 1091. However, at the time
the court was considering Brown’s federal habeas petition, Brown had not
yet been released on parole but remained imprisoned as a direct result of
“the Board[’s] retroactive[ ] appli[cation of] a version of a parole statute
enacted after [Brown perpetrated his] crimes . . . .” Id. at 1096.
7
Because we deny Burnett’s habeas petition as moot, we also deny as
moot Burnett’s motion, filed on July 14, 2004, to expand the record to
include additional documents from his successful state habeas petition.
However, even if we were to take judicial notice of those documents as
part of an expanded record, they would not alter our conclusion.