Eichwedel v. Curry

• Decision Date: 02 November 2012
• Docket Number: No. 09–1031.,09–1031.
• Parties: Paul N. EICHWEDEL, Petitioner–Appellant, v. Brad CURRY, the Chief of Parole for the Illinois Department of Corrections, Respondent–Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

700 F.3d 275

Paul N. EICHWEDEL, Petitioner–Appellant,

v.Brad CURRY, the Chief of Parole for the Illinois Department of Corrections, Respondent–Appellee.

No. 09–1031.

United States Court of Appeals,Seventh Circuit.

Nov. 2, 2012.^*

Kyle J. Steinmetz, Attorney, Mayer Brown, LLP, Chicago, IL, for Petitioner–Appellant.

Eric M. Levin, Attorney, Office Of The Attorney General, Chicago, IL, for Respondent–Appellee.

Before RIPPLE, MANION and SYKES, Circuit Judges.

MOTION TO DISMISS

RIPPLE, Circuit Judge.

Paul Eichwedel petitioned for habeas corpus relief challenging the Illinois Department of Corrections' (“IDOC”) revocation of six months of his good-conduct credits. The credits were revoked under a provision of state law that permits such penalties for prisoners who file frivolous motions in litigation against the state. See730 ILCS 5/3–6–3(d). On August 29, 2012, we concluded that Mr. Eichwedel's claim turns on an unresolved question of state law. We therefore certified that question to the Supreme Court of Illinois. The Justices of that court have accepted our certification.

Respondent Brad Curry now moves to dismiss the appeal as moot. In his opening brief, Mr. Eichwedel had informed us that three months of good-conduct credits had been restored. Mr. Curry now represents—and Mr. Eichwedel does not dispute—that, on July 12, 2012, IDOC restored the remaining three months of Mr. Eichwedel's previously revoked good-conduct credits. He began his mandatory supervised release on October 3, 2012. Because Mr. Eichwedel now has received all of the relief that he seeks in this habeas action, Mr. Curry asks that we withdraw the certified question and dismiss the appeal.

We agree that the case is now moot and that none of the exceptions to the mootness doctrine are applicable. Accordingly, with our appreciation to the Supreme Court of Illinois for having accepted our certification, we now withdraw that certification and dismiss the appeal as moot.

IBACKGROUND

We assume familiarity with our opinion of August 29, 2012, Eichwedel v. Chandler, 696 F.3d 660 (7th Cir.2012), and set forth here only those facts necessary to an understanding of the matter now before us.

Mr. Eichwedel began his incarceration in October 1987. In 2008, he petitioned for federal habeas corpus relief, challenging IDOC's revocation of six months of his good-conduct credits. The credits had been revoked under a provision of state law that provides penalties for prisoners who file frivolous motions, as defined in the statute, in litigation against the state. The district court denied relief, and Mr. Eichwedel appealed.

On August 29, 2012, we concluded that Mr. Eichwedel's habeas claim turns on an unresolved question of state law that is likely to recur. We therefore certified the following question to the Supreme Court of Illinois:

As of the date Mr. Eichwedel's state court challenge to the revocation of his good-conduct credits became final, was the State required to establish, in order to revoke a prisoner's good-conduct credit, either that the court making the finding of frivolousness had determined specifically that the filing satisfied one of the definitions of frivolousness in 730 ILCS 5/3–6–3(d) or that the court had otherwise made its intent to invoke 730 ILCS 5/3–6–3(d) known?

Eichwedel, 696 F.3d at 681.

At the time we certified this question to the Supreme Court of Illinois, we had not been informed by counsel that the last three months of Mr. Eichwedel's good-time credits had been restored.¹ Nevertheless,Mr. Curry now moves to dismiss the appeal as moot. He represents that, on July 12, 2012, IDOC restored the remaining three months of Mr. Eichwedel's previously revoked good-conduct credits and that he began his mandatory supervised release on October 3, 2012.

IIDISCUSSION

A case becomes moot when it no longer presents a case or controversy under Article III, Section 2 of the Constitution. “In general a case becomes moot when the issues presented are no longer live or the parties lack a legally cognizable interest in the outcome.” Murphy v. Hunt, 455 U.S. 478, 481, 102 S.Ct. 1181, 71 L.Ed.2d 353 (1982) (quoting United States Parole Comm'n v. Geraghty, 445 U.S. 388, 396, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980)) (internal quotation marks omitted); see also Powell v. McCormack, 395 U.S. 486, 496, 89 S.Ct. 1944, 23 L.Ed.2d 491 (1969). In claiming that this case is moot, Mr. Curry takes the view that there will be no legally cognizable collateral consequences from the prior revocation and that the case does not fall within the exception for cases “capable of repetition, yet evading review.” Weinstein v. Bradford, 423 U.S. 147, 148–49, 96 S.Ct. 347, 46 L.Ed.2d 350 (1975) (per curiam). Mr. Eichwedel takes the opposite view. He submits that his appeal is not moot because he suffered collateral consequences from the revocation of his good-conduct credits and because his case falls within the “capable-of-repetition-yet-evading-review” exception to the mootness doctrine. We shall examine each of these contentions in turn.

A.

We first examine whether Mr. Eichwedel faces sufficient collateral consequences to avoid a finding of mootness. In Spencer v. Kemna, 523 U.S. 1, 7, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998), the Supreme Court repeated the well-established principle that, with respect to a criminal conviction, once a convict's sentence ends, “some concrete and continuing injury other than the now-ended incarceration or parole—some ‘collateral consequence’ of the conviction—must exist” to justify the continued maintenance of the action. Mr. Eichwedel attempts to apply this principle to his habeas action for the loss of good-time credits. He contends that, if his good-conduct credits had not been revoked, he would have been eligible to apply for up to 90 days of meritorious good-time credits under 730 ILCS 5/3–6–3(a)(3). He urges that, had he been released 90 days earlier, he could have started his supervised release at an earlier date and therefore would have completed his sentence sooner. In his view, remaining on supervised release for an additional three months constitutes a major restraint on his freedom and is the sort of serious collateral consequence that is sufficient to avoid mootness.

Mr. Curry disagrees. He contends that the alleged injury is too speculative. At best, Mr. Eichwedel would only have been eligible to receive up to 90 additional days of credit. The decision whether to grant that credit is within the “sole discretion” of the IDOC Director or his or her designee. 730 ILCS 5/3–6–3(a)(3). Mr. Curry further argues that, even if Mr. Eichwedel were entitled to (rather than just eligible for) good-conduct credit, he could not show that the injury would be redressable by a decision in his favor in this litigation.

Mr. Curry's position is persuasive. Although we presume that a criminal conviction has collateral consequences,² we do not indulge in the same presumption with respect to prison disciplinary proceedings. Spencer, 523 U.S. at 7–16, 118 S.Ct. 978 (declining to extend presumption of collateral consequences from convictions to revocations of parole and rejecting defendant's assertions of concrete injuries-in-fact as too speculative); Cochran v. Buss, 381 F.3d 637, 640–41 (7th Cir.2004)(explaining that the presumption of collateral consequences has not been extended to prison disciplinary proceedings); Diaz v. Duckworth, 143 F.3d 345, 346 (7th Cir.1998)(same). Indeed, after Spencer, it is unclear whether a prisoner may allege sufficient collateral consequences from a prison disciplinary action to avoid dismissal after physical custody has ended. See Cochran, 381 F.3d at 641.

Assuming for the sake of argument that such collateral consequences of a disciplinary proceeding can be shown, it is clear that, after Spencer, the burden is on Mr. Eichwedel to establish those consequences. He has not met this burden. The best that Mr. Eichwedel can do is to point to the possibility that he might have served a shorter period of incarceration before beginning his period of supervised release. All he can suggest is that prison authorities might have seen fit to grant him a reduction in the days he had to serve.³ Such a deficiency is not sufficient to establish a continuing controversy between Mr. Eichwedel and IDOC. See Spencer, 523 U.S. at 14–15, 118 S.Ct. 978 (fact that challenged parole revocation could be used to deny future parole is not sufficient collateral consequence to maintain standing where parole board is vested with “ ‘almost unlimited discretion’ ” to grant or deny parole).⁴ Moreover, even if Mr. Eichwedel had been guaranteed additional good-conduct credits, a ruling in his favor would not redress his injury. The fact remains that he is now released and the amount of time that he spent in prison cannot be undone.

B.

We now examine the well-established exception to the mootness doctrine for disputes capable of repetition yet evading review. See Weinstein, 423 U.S. at 148–49, 96 S.Ct. 347. This exception applies when “(1) the challenged action [is] in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party [will] be subjected to the same action again.” Turner v. Rogers, ––– U.S. ––––, 131 S.Ct. 2507, 2515, 180 L.Ed.2d 452 (2011) (alterations in original) (quoting Weinstein, 423 U.S. at 149, 96 S.Ct. 347).

Mr. Eichwedel contends that he diligently pursued his litigation through state and federal court but was not able to get a ruling on the central question of the case from any court except the trial court before his release date. He argues, therefore,that his case is “too short to be fully litigated prior to its cessation or expiration.” Id.

Mr. Eichwedel also contends that, because the question certified to the Supreme Court of Illinois is likely to impact many prisoners and because prisoners with short sentences are unlikely to...