Burkey v. Marberry

• Decision Date: 18 February 2009
• Docket Number: No. 07-4782.,07-4782.
• Citation: 556 F.3d 142
• Parties: John BURKEY, Appellant v. Helen J. MARBERRY, Warden FCI McKean.
• Court: U.S. Court of Appeals — Third Circuit

556 F.3d 142

John BURKEY, Appellant v. Helen J. MARBERRY, Warden FCI McKean.

No. 07-4782.

United States Court of Appeals, Third Circuit.

Argued on November 20, 2008.

Filed: February 18, 2009.

Thomas W. Patton, Esq., [Argued], Office of Federal Public Defender, Erie, PA, for Appellant, John Burkey.

Robert L. Eberhardt, Esq., Laura S. Irwin, Esq. [Argued], Office of the United States Attorney, Pittsburgh, PA, for Appellee, Helen J. Marberry, Warden FCI McKean.

Before: SCIRICA, Chief Judge, RENDELL, Circuit Judge, and O'CONNOR,^* Retired U.S. Supreme Court Justice.

OPINION OF THE COURT

RENDELL, Circuit Judge.

The question presented by this appeal is whether appellant John Burkey's release from Bureau of Prisons ("BOP") custody caused his pending habeas corpus petition—which challenged the BOP's failure to grant him early release—to be moot because it no longer presented a case or controversy under Article III, § 2, of the Constitution. We agree with the District Court that Burkey's petition is moot because his assertion of "collateral consequences" is insufficient. We will therefore affirm.

BACKGROUND

In 1996, Burkey was serving a sentence for federal controlled substances convictions at the Federal Correctional Institution at McKean in Bradford, Pennsylvania. The BOP determined that he was eligible for early release pursuant to 18 U.S.C. § 3621(e)(2)(B),¹ because he had completed a residential drug treatment program. Burkey received his early release credit, and was released to serve his term of supervised release.

While on supervised release, Burkey committed new controlled substances crimes and was rearrested. In July of 2003, he was sentenced in United States District Court for the Northern District of Ohio to a term of imprisonment of 57 months, to be followed by 3 years of supervised release. A few weeks later, the sentencing court imposed a three-month supervised release violator term, to be served concurrent with the 57-month term of imprisonment.

Burkey returned to prison and participated once again in the drug treatment program, expecting to again qualify for early release. However, the BOP, relying on a recently adopted rule, namely, Paragraph 5(c) of Program Statement 5331.01,² determined that he was ineligible for early release because he had previously received an early release credit under the statute.

Burkey pursued his administrative remedies through the BOP, attempting at first to raise an ex post facto argument. The Warden denied him relief and he lost his appeal at the Regional level. Upon denial of that appeal, he filed a Central Office Administrative Remedy Appeal, arguing for the first time that Paragraph 5(c) of Program Statement 5331.01 was issued in violation of the Administrative Procedures Act and thus was invalid. In March of 2006, Burkey's Central Office Administrative Remedy Appeal was denied on the basis that his ex post facto claim had no merit. The APA claim was not addressed.

In May of 2006, Burkey filed a pro se petition for writ of habeas corpus, 28 U.S.C. § 2241, in United States District Court for the Western District of Pennsylvania, where he was confined. He challenged the BOP's determination that he was not eligible for early release under 18 U.S.C. § 3621(e)(2)(B), urging that Paragraph 5(c) of Program Statement 5331.01 was promulgated in violation of the Administrative Procedures Act, 5 U.S.C. § 553, and was, therefore, invalid. Burkey asked to be released from detention. The Federal Public Defender was appointed to represent him.

In August of 2007, the Magistrate Judge issued a thorough Report and Recommendation, concluding that the BOP had violated the APA. The APA provides that an agency may not adopt a rule without providing prior notice through publication in the Federal Register and comment. 5 U.S.C. § 553(b), (c). The Magistrate Judge reasoned that Paragraph 5(c) of Program Statement 5331.01 was neither an exempt "interpretative rule" nor an exempt general statement of policy. See Dia Navigation Co., Ltd. v. Pomeroy, 34 F.3d 1255, 1264 (3d Cir.1994). It was instead a legislative rule, see id., subject to the APA, and the BOP could not avoid the APA's requirements by placing a legislative rule in a Program Statement, instead of first publishing it in the Federal Register. The Magistrate Judge recommended that Burkey's request for habeas corpus relief be granted because he had completed the residential drug treatment program.

On September 7, 2007, the BOP released Burkey from custody, nine days before his statutory release date of September 16, 2007. It then filed in this case a Notice of Suggestion of Mootness, contending that, because Burkey had, through his release, achieved the object of his habeas corpus petition, his case was moot. Burkey filed a written response, and urged that his petition was not moot because, if the District Court would issue an order approving and adopting the Magistrate Judge's Report and Recommendation, he then would be able to argue to the sentencing court in Ohio that his supervised release term should be shortened in light of his having been improperly denied early release from prison.³

The District Court dismissed Burkey's habeas corpus petition as moot. The court observed that, to avoid a finding of mootness, Burkey would have to demonstrate that the delayed commencement of his supervised release term was likely to be redressed by a favorable judicial decision, Spencer v. Kemna, 523 U.S. 1, 7, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998). The court concluded that it was "pure speculation that a favorable decision from this Court would `likely' result in [Burkey's] sentencing court reducing or terminating his supervised release term under Section 3583(e)." Burkey v. Lappin, 2007 WL 4480188, at * 2 (W.D.Pa. December 14, 2007). The District Court did not believe it could predict what the sentencing court would do in Burkey's case, and thus it could not conclude that the relief sought likely would be granted.

The District Court rejected precedent in the Second and Ninth Circuits, Levine v. Apker, 455 F.3d 71 (2d Cir.2006), and Mujahid v. Daniels, 413 F.3d 991 (9th Cir. 2005), which permit a case to continue when there is only a "possibility" that a court might modify a term of supervised release, and concluded that more is required to maintain a case or controversy under Article III. The District Court also referred to the view expressed by the Supreme Court in United States v. Johnson, 529 U.S. 53, 120 S.Ct. 1114, 146 L.Ed.2d 39 (2000), that incarceration and supervised release serve distinct objectives and are not to be viewed as interchangeable punitive measures. Burkey, 2007 WL 4480188, at * 2 (citing Johnson, 529 U.S. at 57-58, 120 S.Ct. 1114). This, the District Court reasoned, detracted from the likelihood that the sentencing court would modify Burkey's term of supervised release based on his having been in prison longer than he perhaps should have been as a result of the BOP's APA violation.

Burkey appeals. We have jurisdiction pursuant to 28 U.S.C. § 1291. United States v. Cepero, 224 F.3d 256, 264-65 (3d Cir.2000) (certificate of appealability not required to appeal from denial of section 2241 petition). The standard of review over the District Court's mootness determination is plenary. United States v. Gov't of Virgin Islands, 363 F.3d 276, 284 (3d Cir.2004). Insofar as Burkey was in BOP custody when he filed his habeas corpus petition under 28 U.S.C. § 2241, he has satisfied the "in custody" jurisdictional requirement, Carafas v. LaVallee, 391 U.S. 234, 238, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968), and he appropriately filed his habeas corpus petition in the district of confinement and named the Warden as the respondent, Rumsfeld v. Padilla, 542 U.S. 426, 443, 124 S.Ct. 2711, 159 L.Ed.2d 513 (2004).

DISCUSSION

A challenge to the BOP's execution of a sentence is properly brought under 28 U.S.C. § 2241. Woodall v. Federal Bureau of Prisons, 432 F.3d at 235, 241-43 (3d Cir.2005); Coady v. Vaughn, 251 F.3d 480, 485 (3d Cir.2001). The BOP waived any exhaustion of administrative remedies argument it might have had concerning the APA claim insofar as 28 C.F.R. § 542.15 prohibits an inmate from raising on appeal an issue that was not raised at the initial and intermediate levels of the administrative remedy process. Burkey's habeas corpus petition sought release from prison based on the invalidity under the APA of the Program Statement denying him early release. That relief was afforded him when, on the Magistrate Judge's recommendation, the BOP released him in September of 2007 to begin serving his 3-year term of supervised release. Given this, is a case or controversy still presented? We conclude the answer is no, and, therefore, Burkey's habeas corpus petition is moot.

Under Article III of the Constitution, a federal court may adjudicate "only actual, ongoing cases or controversies." Lewis v. Continental Bank Corp., 494 U.S. 472, 477, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990). "To invoke the jurisdiction of a federal court, a litigant must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision." Id. (citing Allen v. Wright, 468 U.S. 737, 750-751, 104 S.Ct. 3315, 82 L.Ed.2d 556 (1984); Valley Forge Christian College v. Americans United for Separation of Church & State, Inc., 454 U.S. 464, 471-473, 102 S.Ct. 752, 70 L.Ed.2d 700 (1982)). Article III denies the District Court the power to decide questions that cannot affect the rights of litigants before it, and confines it to resolving live controversies "admitting of specific relief through a decree of a conclusive character, as distinguished from an opinion advising what the law would be upon a hypothetical state of facts." Aetna Life Insurance Co. v. Haworth, 300 U.S. 227, 241, 57 S.Ct. 461, 81 L.Ed. 617 (1937).

The case or controversy requirement continues through all stages of...