Evans v. Zych

• Decision Date: 12 July 2011
• Docket Number: No. 09–1094.,09–1094.
• Parties: Michael EVANS, Petitioner–Appellant,v.C. ZYCH, Respondent–Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

644 F.3d 447

Michael EVANS, Petitioner–Appellant,

v.C. ZYCH, Respondent–Appellee.

No. 09–1094.

United States Court of Appeals, Sixth Circuit.

Argued: April 21, 2011.Decided and Filed: July 12, 2011.

ARGUED: Rajeev Muttreja, Jones Day, New York, New York, for Appellant. Patricia Gaedeke, Assistant United States Attorney, Detroit, Michigan, for Appellee. ON BRIEF: Rajeev Muttreja, Jones Day, New York, New York, for Appellant. Patricia Gaedeke, Assistant United States Attorney, Detroit, Michigan, for Appellee. Michael Evans, West Plains, Missouri, pro se.Before: MARTIN, SUHRHEINRICH, and KETHLEDGE; Circuit Judges.

OPINION

SUHRHEINRICH, Circuit Judge.

Petitioner–Appellant, Michael Evans (“Evans”), challenges the classification of his convictions for violations of 26 U.S.C. § 5861(d) and 26 U.S.C. § 5861(e) as “crimes of violence” under 18 U.S.C. § 924(c)(3), for purposes of 18 U.S.C. § 4042(b), which requires the Bureau of Prisons (“BOP”) to notify state, tribal, and local law enforcement officials prior to the release of a prisoner convicted of a crime of violence. This is an issue of first impression in this circuit. We conclude that the crimes of possession and transfer under § 5861 are not crimes of violence with the meaning of § 924(c)(3). Accordingly, we REVERSE the district court's judgment and ORDER the removal of Evans's classification. We also VACATE the district court's decision regarding Evans's access to legal papers as that issue is now moot.

I. BACKGROUND

Evans operated a pawn shop in southern Missouri. Although federally licensed to deal in firearms and ammunition, in late 2004 and early 2005, Evans traded and sold several firearms that were not properly registered under federal law.

Evans pleaded guilty to one count of unlawful receipt and possession of a firearm in violation of 26 U.S.C. § 5861(d), and two counts of unlawful transfer of a firearm in violation of 26 U.S.C. § 5861(e). On September 15, 2006, the Western District of Missouri sentenced Evans to 37 months of imprisonment and three years of supervised release.

In January 2008, Evans, then a prisoner at the Federal Correctional Institution (“FCI”) in Milan, Michigan, filed a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 in the Eastern District of Michigan. He alleged the BOP incorrectly classified his offenses as crimes of violence for purposes of BOP programming and the notification requirements of 18 U.S.C. § 4042(b). When an offense is a crime of violence, § 4042(b) requires the BOP to provide written notice to state, tribal, and local law enforcement at least five days prior to the release of a prisoner; or for a prisoner serving a term of supervised release, the probation officer must provide notice at least five days prior to a change in residence. Section 4042(b) defines crime of violence by reference to 18 U.S.C. § 924(c)(3). Evans also asserted that the BOP denied him access to legal documents necessary for the preparation of a 28 U.S.C. § 2255 petition.

In response, the government contended that Evans failed to exhaust his administrative remedies because the BOP denied his internal appeals as untimely. The government also argued that a § 2241 petition was not the proper vehicle to challenge the § 4042 notification requirement, because it does not relate to the conditions or duration of confinement.

On October 7, 2008, the district court issued its opinion. First, the court dismissed the government's exhaustion challenge. It reasoned that the § 2241 exhaustion requirement is prudential, not jurisdictional. With respect to Evans's notification challenge, the court explained “that a § 5861 conviction qualifies as a crime of violence because of the correlation between the possession of certain unregistered firearms and violence and physical injury,” and refused to grant Evans relief.¹ In support, the district court cited the Eleventh Circuit's decision in United States v. Owens, 447 F.3d 1345 (11th Cir.2006), which held that possession in violation of § 5861 was a crime of violence as defined in § 4B1.2(a) of the U.S. Sentencing Guidelines so as to warrant a sentence enhancement pursuant to U.S. Sentencing Guidelines § 2K2.1(a)(4)(A) (providing a base offense level of 20). The court also cited to the Fifth Circuit's decision in United States v. Jennings, 195 F.3d 795 (5th Cir.1999), which held that possession of an unregistered pipe bomb in violation of § 5861 was a crime of violence within the meaning of 18 U.S.C. § 924(c)(3) for purposes of a mandatory sentence enhancement pursuant to a conviction under § 924(c)(1) (requiring a sentence of not less than five years for using or carrying a firearm during a crime of violence).

The district court also denied Evans relief on his legal documents claim, concluding that he had already received or had an alternative form of access to the requested documents.

Evans filed a motion to alter or amend the judgment. After the district court denied the motion, Evans filed this appeal. Since filing his appeal, Evans has been released from the FCI, but remains under supervised release.

II. ANALYSIS

A. Standard of Review

This court reviews de novo the district court's dismissal of a habeas petition filed pursuant to 28 U.S.C. § 2241. Fazzini v. Ne. Ohio Corr. Ctr., 473 F.3d 229, 231 (6th Cir.2006).

B. Mootness

1. Notification Claim

After Evans's release from the FCI, the government filed a motion to dismiss his appeal. It argued the case was moot because Evans was no longer in custody and was no longer subject to the regulations he challenged. We denied the motion because Evans remains subject to the notification provision of 18 U.S.C. § 4042(b) throughout his term of supervised release.

The government now argues that Evans's appeal is moot because any further obligation to provide notice under § 4042 is imposed on Evans's probation officer and not on the BOP. This may be, but it does not negate the fact that Evans remains subject to the notification requirement; thus, this case is not moot. See Rem v. U.S. Bureau of Prisons, 320 F.3d 791, 793 (8th Cir.2003) (per curiam) (finding that a prisoner's challenge to the § 4042(b) notification requirement was not moot because the prisoner “remains subject to the statute during the remainder of his supervised release” despite the government's argument that “because notification was issued when [he] was released to supervision” the challenge was moot).

Furthermore, the BOP is the entity that classified Evans's offenses as crimes of violence and it is the BOP that retains the power to re-classify Evans's offenses, should we conclude that his convictions do not meet the requirements of § 4042(b).

2. Withheld Legal Documents Claim

In his habeas petition, Evans asserted that the BOP prevented him from accessing certain legal documents necessary for the preparation of a 28 U.S.C. § 2255 petition. The parties agree that Evans's release moots this claim as he now has access to all available legal papers. Evans asks that we vacate the district court's decision with respect to his legal documents claim to ensure he is not prejudiced should he choose to take other legal action at some future date relative to the BOP's decision to deny him access to his legal papers while incarcerated. See, e.g., Christopher v. Harbury, 536 U.S. 403, 414, 122 S.Ct. 2179, 153 L.Ed.2d 413 (2002) (discussing claims for denial of access to courts that “do not look forward to a class of future litigation, but backward to a time when specific litigation ended poorly, or could not have commenced, or could have produced a remedy subsequently unobtainable” (footnote omitted)).

Because Evans's post-release access to his available legal papers moots his claim and prevents him from challenging this aspect of the district court's decision, we VACATE the decision on this issue so as to prevent the judgment from prejudicing Evans in future litigation. See Ford v. Wilder, 469 F.3d 500, 505 (6th Cir.2006) (citing U.S. Bancorp Mortgage Co. v. Bonner Mall P'ship, 513 U.S. 18, 21–22, 115 S.Ct. 386, 130 L.Ed.2d 233 (1994)) (allowing vacatur when a civil case becomes moot during an appeal in order to eliminate a judgment the losing party was prevented from opposing on direct review).

C. Merits

Evans asserts that the § 4042(b) notification requirement should not apply to his convictions under 26 U.S.C. § 5861(d) and § 5861(e) because neither crime requires the risk of force during the commission of the crime called for in § 924(c)(3).

Section 4042(b) defines crime of violence by explicit reference to § 924(c)(3), which provides:

[T]he term “crime of violence” means an offense that is a felony and—

(A) has as an element the use, attempted use, or threatened use of physical force against the person or property of another, or

(B) that by its nature, involves a substantial risk that physical force against the person or property of another may be used in the course of committing the offense.

Although neither the Supreme Court nor this circuit has considered whether violations of § 5861 are crimes of violence within the definition of § 924(c)(3), several circuits have with varying results. Compare United States v. Jennings, 195 F.3d 795 (5th Cir.1999) (holding possession in violation of § 5861 is a crime of violence under § 924(c)(3) for purposes of a § 924(c)(1) conviction), and United States v. Amparo, 68 F.3d 1222 (9th Cir.1995) (recognizing a § 5861 conviction as a crime of violence under § 924(c)(3) for purposes of § 924(c)(1)), with United States v. Serafin, 562 F.3d 1105 (10th Cir.2009) (holding that a conviction under § 5861(d) for possession of an unregistered weapon is not a crime of violence within the meaning of § 924(c)(3) and reversing defendant's conviction under § 924(c)(1) for possession of a firearm during a crime of violence).

In United States v. Jennings, the Fifth Circuit held that possession of a pipe bomb in violation of § 5861(d) was a crime of...