Corgain v. Miller
| Decision Date | 04 August 1983 |
| Docket Number | 81-2965 and 82-1023,81-2996,82-1157,81-3009,Nos. 81-2967,81-2990,82-1447,s. 81-2967 |
| Citation | 708 F.2d 1241 |
| Parties | William CORGAIN, Petitioner-Appellant, v. H.G. MILLER and Norman Carlson, Respondents-Appellees. Joe ORTEGA, Petitioner-Appellant, v. H.G. MILLER, Warden and Norman Carlson, Respondents-Appellees. Arthur ST. PETER, Petitioner-Appellant, v. H.G. MILLER, Warden, Respondent-Appellee. Kenneth Duane AGTUCA, Petitioner-Appellant, v. Harold G. MILLER, Respondent-Appellee. Anthony J. SOUZA, Petitioner-Appellant, v. Harold MILLER, Warden, Respondent-Appellee. Ronald Orville PIERCY, Petitioner-Appellant, v. Harold G. MILLER, Respondent-Appellee. Albert LITTLE, Petitioner-Appellant, v. Harold G. MILLER, Warden, Respondent-Appellee. Lester M. Askofu JOHNSON, Plaintiff-Appellant, v. H.G. MILLER, Defendant-Appellee. |
| Court | U.S. Court of Appeals — Seventh Circuit |
Allen E. Sheenburger, Associate Prof. of Law, Carmen D. Caruso (Law Student) Loyola University Law School, Chicago, Ill., for petitioners-appellants.
Richard H. Lloyd, Asst. U.S. Atty., East St. Louis, Ill., for respondents-appellees.
Before WOOD and ESCHBACH, Circuit Judges, and BARTELS, Senior District Judge. *
The appellants are prisoners convicted in state courts of state offenses who were transferred into federal custody pursuant to contracts between the various states and the Attorney General of the United States, as authorized by 18 U.S.C. Sec. 5003. The appellants petitioned for writs of habeas corpus, contending that they are deprived of adequate access to state courts because the library services available to them in the United States Penitentiary ("USP") at Marion, Illinois are deficient in state law materials. Some of the appellants also contend that due process was violated when they were transferred from state to federal custody without adequate procedural safeguards. The court below found the existing library system inadequate and ordered the prison officials to submit plans to provide adequate state law services. After approving the submitted plans, the court entered judgment against the appellants on both issues. For the reasons below, we affirm on the issue of access to state courts, and we vacate and remand for further proceedings on the due process issue.
William Corgain was transferred from Walpole State Prison in Massachusetts to USP-Lewisburg, Pennsylvania in September 1980. Neither the state nor the federal authorities provided a hearing before this transfer. In October 1980, he was transferred to USP-Marion, Illinois, after being classified as a security risk. Sometime prior to May 16, 1981, he was transferred to USP-Leavenworth, Kansas.
Kenneth Agtuca was transferred from Washington State Penitentiary to USP-Marion after pleading guilty to attempted escape before a prison administrative hearing. There was no hearing on the issue of transfer, however. He was transferred to USP-Atlanta, Georgia in March 1979, and then transferred back to USP-Marion in September 1979.
Joe Ortega was transferred from the Washington State Prison at Walla Walla into federal custody in October 1979. In November 1979, he entered the Federal Corrections Institute at El Reno, Oklahoma. He has since been transferred to USP-Marion in July 1980, and from there, to USP-Lewisburg, Pennsylvania sometime prior to December 11, 1981.
Anthony Souza was transferred without a hearing from a Rhode Island facility to USP-Marion in September 1978. Sometime prior to January 29, 1982, he was returned to state custody.
Ronald Piercy was transferred from a Washington facility to USP-Marion in January 1981.
Arthur St. Peter is a Washington state prisoner who entered federal custody in October 1979. He arrived at USP-Marion in December 1979.
Albert Little was transferred from a Massachusetts facility to USP-Lewisburg, Pennsylvania in September 1980. He was then transferred to USP-Marion in October 1980.
Askofu Johnson is a Delaware state prisoner presently in federal custody at USP-Marion.
The habeas petitions of Corgain, Agtuca, Ortega, Souza, Piercy, St. Peter and Little were filed individually, but were consolidated below, along with three other cases, because of the similarity of the issues raised. The consolidated cases were referred to a magistrate by consent of the parties.
The magistrate found that the library services available at USP-Marion were inadequate to provide the petitioners with meaningful access to their state courts and ordered the prison to submit to the court a written plan for each state then housing prisoners at USP-Marion which would provide the prisoners with meaningful access to the courts which imposed the sentences that the prisoners were serving. 1 The submitted plans did not provide for increased state law materials for the library, but instead provided the prisoners with lists of legal aid resources from the states. With the exception of the Rhode Island plan, the magistrate approved these plans as adequate. The prison was obliged to submit a revised plan for Rhode Island, which was then also approved.
The magistrate deferred decision of the transfer issue until the Supreme Court decided Howe v. Smith, 452 U.S. 473, 101 S.Ct. 2468, 69 L.Ed.2d 171 (1981), which the magistrate believed would be dispositive of the issue. After the Supreme Court decided Howe, the magistrate issued an order denying habeas relief on the transfer issue and judgment was entered against the petitioners on all issues. The petitioners appeal.
Appellant Askofu Johnson filed his petition for a writ of habeas corpus after the above consolidated cases had been decided. He raised only the issue of inadequate library resources. The court denied his motion to proceed in forma pauperis, declaring that Johnson's claim was moot because the relief he sought had already been provided under the Delaware plan submitted by the prison in the consolidated cases. Johnson appeals.
All eight cases were consolidated on appeal because of the similarity of the issues they present. 2 Although not all of the appellants participated in oral arguments, we extend the benefits of counsel's argument to all appellants.
Two major issues are raised on appeal. First, all appellants contend that they are being deprived of their constitutional right of access to their state courts by the lack of adequate state law materials in the law library at USP-Marion. Second, Corgain, Agtuca and Souza argue that they were deprived of due process in being transferred from state to federal custody without notice and a hearing. 3 Johnson additionally argues that the court below erred in declaring his case moot and refusing to allow him to proceed in forma pauperis.
The appellees claim that the constitutional issue of due process is not properly before the court because the appellants made only a statutory challenge to their transfers in the court below.
In addition to these issues, we sua sponte consider whether the transfers of Corgain, Ortega and Souza from USP-Marion to facilities outside this circuit divest this court of jurisdiction or render any of their claims moot.
Since filing their petitions, Corgain, Ortega and Souza have been transferred from USP-Marion. Corgain and Ortega remain in federal custody, while Souza is back in the custody of Rhode Island. All three are outside of the district in which they filed their petitions and outside of this circuit.
Rule 23 of the Federal Rules of Appellate Procedure provides that a person having custody of a prisoner whose habeas corpus petition is pending review shall not transfer custody to another unless the transfer is directed in accordance with the provisions of the rule. There is nothing in the records of the three transferred appellants indicating that the provisions of Rule 23 were followed. 4 Since the transfers were in violation of Rule 23, this court is not divested of subject matter jurisdiction. United States ex rel. McInery v. Shelly, 702 F.2d 101 (7th Cir.1982); Cohen v. United States, 593 F.2d 766, 767 n. 2 (6th Cir.1979); Hudson v. Hardy, 424 F.2d 854, 856 n. 5 (D.C.Cir.1970); see Ahrens v. Clark, 335 U.S. 188, 193, 68 S.Ct. 1443, 1445, 92 L.Ed. 1898 (1948).
Although the transfers from USP-Marion have not divested this court of jurisdiction, we must separately consider whether the transfers have mooted any of the appellants' claims. See Hudson v. Hardy, supra, 424 F.2d at 856 n. 5. Corgain, Ortega and Souza contend that their right of access to their state courts is impaired by inadequate library services at USP-Marion. None of the three are now at that facility. As a general rule, when a habeas petitioner protests a condition of his confinement, his claim is mooted when that condition ends. See Weinstein v. Bradford, 423 U.S. 147, 149, 96 S.Ct. 347, 348, 46 L.Ed.2d 350 (1975); Weeks v. Wyrick, 638 F.2d 690, 693 (8th Cir.1981); Cervantes v. Walker, 589 F.2d 424, 425-26 (9th Cir.1978); Ross v. Mebane, 536 F.2d 1199, 1201 (7th Cir.1976); Lewis v. D.C. Department of Corrections, 533 F.2d 710, 711 (D.C.Cir.1976). The exception to this general rule for issues that are "capable of repetition, yet evading review" applies only when "(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again." Weinstein v. Bradford, supra, 423 U.S. at 149, 96 S.Ct. at 348. The cases of Corgain, Ortega and Souza, as non-class actions, satisfy neither of these requirements. While these particular petitioners did not remain at USP-Marion long enough to complete their challenge to the library system, there is no suggestion that other prisoners from their respective states will not be housed...
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