2011-07-15 gov't supplemental brief on mootness (7-15-2011)

8/3/2019 2011-07-15 Gov't Supplemental Brief on Mootness (7-15-2011)

1/3

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

MELINDA HAAG (CABN 132612)United States Attorney

MIRANDA KANE (CABN 150630)Chief, Criminal Division

ADAM A. REEVES (NYBN 2363877)Assistant United States Attorney

450 Golden Gate Ave., Box 36055San Francisco, California 94102Telephone: (415) 436-7200Fax: (415) 436-7234E-Mail: [email protected]

Attorneys for Plaintiff

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

OAKLAND DIVISION

UNITED STATES OF AMERICA,

Plaintiff,

v.

CONNIE C. ARMSTRONG, JR.,

Defendant.

)))))))))

)

No. CR 94-0276 PJH

RESPONSE BY THE UNITED STATESTO THE ORDER TO SHOW CAUSE

The United States, by the undersigned counsel, hereby responds to the Courts June 30,

2011 Order to Show Cause requesting that the parties address whether the defendants successful

completion of supervised release has rendered his 2255 motion moot. Even though he has now

completed his sentence, the defendants 2255 motion is not moot because he filed it while in

custody during his term of supervised release. Document 600 at 1 and 3; Petitions

Supplemental Brief Regarding Mootness of 2255 Motion dated July 8, 2011 at 2 (agreeing with

the Courts recitation of the procedural history).

If a petitioner was in custody at the time he filed his federal habeas petition, his

subsequent release from prison does not deprive the court of its jurisdiction so long as the

Response by the United States to the Order to Show Cause, CR 94-027 6 PJH

Case4:94-cr-00276-PJH Document604 Filed07/15/11 Page1 of 3
mailto:[email protected]:[email protected]:[email protected]


2/3

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

adverse consequences of a criminal conviction remain. Carafas v. LaVallee, 391 U.S. 234, 238

(1968); United States v. Spawr Optical Research, Inc., 864 F.2d 1467, 1470 (9th Cir. 1988).

Even though he was not in physical confinement, the defendant continued to be in custody

during his term of supervised release for purposes of a habeas petition. Maleng v. Cook, 490U.S. 488, 491 (1989) (prisoner who was on parole was still in custody under his unexpired

sentence).1

The defendants 2255 motion is not moot because he is challenging his underlying

conviction. A case becomes moot when it no longer presents a case or controversy under Article

III, 2, of the Constitution. Spencer v. Kemna, 523 U.S. 1, 7 (1998); Wilson v. Terhune, 319

F.3d 477, 479 (9th Cir. 2003). A habeaspetition challenging a conviction becomes moot only

if it is shown that there is no possibility that any collateral legal consequences will be imposed on

the basis of the challenged conviction. Sibron v. State of New York, 392 U.S. 40, 57 (1968).

Collateral consequences that may prevent a habeas petition from being moot include

the inability to vote, engage in certain businesses, hold public office, or serve as a juror. Maleng,

490 U.S. at 491-492. The Ninth Circuit has held that there is a presumption of collateral

consequences flowing from every criminal conviction because a defendant faces the prospect of

harsher punishment at a later date as a result of his conviction. Chaker v. Crogan, 428 F.3d

1215, 1219 (9th Cir. 2005); Chaconv. Wood, 36 F.3d 1459, 1463 (9th Cir. 1994) (Once

convicted, one remains forever subject to the prospect of harsher punishment for a subsequent

offense a result of federal and state laws that either already have been or may eventually be

passed. As a result, there is simply no way ever to meet the Sibron mootness requirement: that

there be no possibility of collateral legal consequences.)superseded on other grounds by

statute, Morris v Woodford, 229 F.3d 775 (9 Cir. 2000). But seeLarche v. Simons, 53 F.3dth

InMaleng, the Supreme Court reversed a Ninth Circuit decision that would have1

extended the scope of in custody to include after the sentence had expired the period of

time added to a subsequent sentence as a result of the initial conviction. The Supreme Court

concluded that this interpretation stretches the language in custody too far. Maleng, 490 U.S.

at 491.


2



3/3

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

1068, 1070-71 (9th Cir. 1995) (questioning the wisdom of an irrefutable presumption of

collateral consequences).

Accordingly, the completion of the defendants term of supervised release does not render

his 2255 motion moot because he filed his habeas petition while he was in custody and thereare still collateral consequences that flow from his criminal conviction.

Dated: July 15, 2011 Respectfully submitted,

MELINDA HAAGUnited States Attorney

/s/

ADAM A. REEVESAssistant United States Attorney


3


2011-07-15 gov't supplemental brief on mootness (7-15-2011)

Documents