Diaz v. Duckworth

• Decision Date: 04 May 1998
• Docket Number: No. 96-2630,96-2630
• Citation: 143 F.3d 345
• Parties: Fabio A. DIAZ, Petitioner-Appellant, v. Jack R. DUCKWORTH, Respondent-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 345

143 F.3d 345

Fabio A. DIAZ, Petitioner-Appellant, v. Jack R. DUCKWORTH, Respondent-Appellee.

No. 96-2630.

United States Court of Appeals Seventh Circuit.

Argued March 31, 1998.

Decided May 4, 1998.

Fabio A. Diaz, Santo Domingo, Rep. Dominicana, Petitioner-Appellant Pro Se.

Michael A. Hurst (argued), Office of the Attorney General, Indianapolis, IN, for Respondent-Appellee.

Tiffanie N. Cason, pro se, Cyrus Amir-Mokri (argued), Amarjeet Singh Bhachu, Skadden, Arps, Slate, Meagher & Flom (Illinois), Chicago, IL, for Amicus Curiae Tiffanie N. Cason.

Before POSNER, Chief Judge, and CUMMINGS and KANNE, Circuit Judges.

POSNER, Chief Judge.

Fabio Diaz was an inmate of an Indiana state prison (probably for a drug offense, although the record is unclear) when he instituted this habeas corpus action, claiming that he had been subjected to prison discipline in violation of his right to due process of law. The prison authorities had found that he had violated a rule of the prison forbidding inmates to use or possess drugs, and had "sentenced" him to (among other things) a loss of 180 days of good-time credit. The district court found no violation of due process, and so denied relief. Diaz appealed, and while the appeal was pending was deported to the Dominican Republic, where so far as we know he remains. The first and last question we decide is whether his deportation moots his appeal.

In arguing that it does not, he relies primarily on our decision in Bryan v. Duckworth, 88 F.3d 431 (7th Cir.1996), where we extended the rule of Sibron v. New York, 392 U.S. 40, 88 S.Ct. 1889, 20 L.Ed.2d 917 (1968), to prison disciplinary proceedings. Sibron holds that if a convicted prisoner is released while his habeas corpus proceeding is pending, the case is moot only if the state proves that there is no possibility that the conviction will ever have an adverse effect on him, as by enhancing his sentence for some future crime. It seemed to us in Bryan that prison discipline was a close substitute for criminal proceedings, because disciplinary sanctions are frequently used to enhance subsequent sentences and disciplinary sanctions and to defeat parole. Bryan v. Duckworth, supra, 88 F.3d at 433.

But between Bryan and the argument of this appeal the Supreme Court decided Spencer v. Kemna, --- U.S. ----, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998), holding that the possible future effects of a parole revocation that were alleged by the defendant in that case were too speculative to keep his habeas corpus proceeding alive after he was released from the confinement brought about by the revocation. In the course of holding this, the Court spoke disparagingly of the cases that had led up to and followed Sibron, and of Sibron itself, see --- U.S. at ---- - ----, 118 S.Ct. at 984-85, and it appears to have confined that decision to criminal convictions, saying that "it is an 'obvious fact of life that most criminal convictions do in fact entail adverse collateral legal consequences.' " Id. at ----, 118 S.Ct. at 985, quoting 392 U.S. at 55, 88 S.Ct. at 1898-99. The only such consequences that Spencer deems relevant, moreover, appear to be statutory disabilities such as loss of the right to vote or the right to own a gun. Consequences that are within the power of the defendant to avoid--such as a sentencing enhancement, which presupposes his deciding to commit another crime--are excluded. Id. at ---- - ----, 118 S.Ct. at 986-87.

The rule of Sibron is the rule placing the burden of proving absence of collateral consequences on the state. Spencer confined that rule to convictions, and so the extension of the rule, in Bryan, to disciplinary proceedings is no longer good law; for it cannot be said that most prison disciplinary sanctions "do in fact entail adverse collateral legal consequences," especially statutory disabilities, such as loss of the right to vote, that are automatic consequences of felony convictions.

The more difficult question is whether the burden of establishing collateral consequences of a judgment other than a conviction can, after Spencer, ever be carried when, as in Bryan and this case, the only consequences of which the defendant is complaining are contingent upon his committing future crimes or future disciplinary violations (such consequences as being subject to enhanced punishment for a future violation, by virtue of the punishment that he is challenging) as distinct from a case in which the disciplined prisoner shows that some statute or regulation attaches a disability to him that is not contingent on his future misconduct. Spencer suggests that the answer is no; we are sure that the answer is no when the defendant has not only been released but also deported.

To suppose that a future sentencing enhancement is totally avoidable by a convicted defendant is in the usual case to indulge reassuring fictions, but fictions nonetheless, about the American criminal justice system: that it is infallible, and that it is free from any element of strict liability. Innocent people are sometimes convicted and their convictions affirmed, and there are strict liability crimes and also crimes that have an element of strict liability, such as statutory rape committed in a jurisdiction in which reasonable ignorance of the victim's being underage is not a defense. And a person who has been convicted previously is more likely to be convicted erroneously in the...