Francis v. Maloney

• Decision Date: 19 August 2015
• Docket Number: No. 14–1320.,14–1320.
• Parties: Gareth FRANCIS, Petitioner, Appellant, v. Christopher MALONEY and Charles E. Samuels, Jr., Respondents, Appellees.
• Court: U.S. Court of Appeals — First Circuit

798 F.3d 33

Gareth FRANCIS, Petitioner, Appellant

v.Christopher MALONEY and Charles E. Samuels, Jr., Respondents, Appellees.

No. 14–1320.

United States Court of Appeals, First Circuit.

Aug. 19, 2015.

Amy L. Codagnone, for petitioner.

Christine J. Wichers, Assistant United States Attorney, with whom Carmen M. Ortiz, United States Attorney, was on brief, for respondents.

Before HOWARD, Chief Judge, TORRUELLA and KAYATTA, Circuit Judges.

Opinion

HOWARD, Chief Judge.

Although the parties present this case as implicating a question of due process, it ultimately turns on our inability to provide the petitioner with the relief that he seeks. Petitioner Gareth Francis brought this 28 U.S.C. § 2241 habeas corpus petition after he was released from federal custody. In the district court, he argued that the Bureau of Prisons (“BOP”) violated his due process rights when it failed to provide him with an in-person hearing before revoking his good-time credits, thus causing him to over-serve his prison sentence. The district court rejected his constitutionalcontention. We instead conclude that we are unable to provide Francis with his requested remedy, and thus affirm.

I.

In September 2008, Francis was sentenced in the District of Vermont to fifty-one months in prison and two years of supervised release for making false statements in connection with the purchase of a firearm. 18 U.S.C. § 922(a)(6). Shortly thereafter, he was sentenced in the District of Massachusetts as a felon in possession of a firearm and ammunition. 18 U.S.C. § 922(g)(1). For this latter crime, the court sentenced him to twenty-seven months in prison and two years of supervised release. The first twenty-one months were to run concurrently with the Vermont sentence, yielding a total incarcerative span of fifty-seven months. His imprisonment began with detention on July 16, 2008, and his expected release date was April 16, 2013.

While in prison, Francis earned good-time credits. 18 U.S.C. § 3624(b)(1) (allowing for fifty-four days of good-conduct time for each year). His putative release date was therefore moved up to October 10, 2012. With two months remaining, on August 9, 2012, the BOP transferred Francis to a residential re-entry center, the Coolidge House. Unfortunately, Francis violated a number of rules while he was there.

On August 21, 2012, the Coolidge House's “Center Discipline Committee” (“CDC”) issued its first violation report regarding Francis's behavior. After a hearing, the CDC recommended that Francis be returned to a secure BOP facility. A Discipline Hearing Officer reviewed the matter, and imposed the recommended punishment.

Before the BOP could effectuate that transfer for this initial infraction, however, the CDC accused Francis of committing five more violations. The CDC swiftly prepared a report about each event, but it was unable to provide Francis with CDC review hearings before the transfer occurred. While Francis was mid-transfer (and thus in the custody of the U.S. Marshals), the CDC attempted to conduct hearings over the telephone, but ultimately had to hold them in absentia. After the proceedings and a subsequent review by a hearing officer, the BOP revoked 142–days of Francis's total good-time credits as a disciplinary measure. His release date was thus delayed until February 25, 2013.

After Francis returned to a secure BOP facility, a final in-person hearing was scheduled to re-consider the 142–day sanction. On January 7, 2013, the hearing officer expunged several of the violations, and reinstated all but 41 days of the lost good time. With this change, Francis's release date reverted back to November 16, 2012. The BOP therefore immediately released Francis from its custody. At that point, he began serving his term of supervised release.

In late 2013, Francis filed this petition for habeas corpus, invoking 28 U.S.C. § 2241. He sought a court order requiring the BOP to reinstate the lost good-time credits and to amend his prison records accordingly. Moreover, he demanded an immediate end to his supervised release term to account for the extra time incarcerated. Francis constructed his case around the theory that the BOP's failure to hold an in-person hearing before revoking good-time credits violated the due process clause. The defendants swiftly moved to dismiss the petition or, in the alternative, for summary judgment.

The district court bifurcated its consideration of the desired remedies. First, it converted Francis's request to terminate his supervised release term to a motion to vacate or amend the sentence, see 28 U.S.C. § 2255. The court indicated that it was willing to account for the time Francis over-served when deciding that converted motion. But, because Francis had a forthcoming revocation hearing (to address an unrelated, alleged violation of the conditions of his release), the court postponed ruling on that converted motion. At that later hearing, the court found Francis in violation, terminated the remainder of his sentence, and imposed a new two-year term of supervised release. Other than a very brief statement at oral argument before us, Francis fails to offer even a perfunctory argument respecting this part of the case, and we thus bypass further discussion of it. See Mills v. U.S. Bank, NA, 753 F.3d 47, 55 (1st Cir.2014).

Meanwhile, Francis also persisted in the district court with a request that his good-time credits be reinstated and that his release date be amended to reflect that change. The district court concluded that while Francis had over-served his sentence, no due process violation occurred. The court therefore entered judgment for the defendants. A timely appeal—centered on this second request—followed.

II.

We review the denial of a habeas petition de novo, Nadeau v. Matesanz, 289 F.3d 13, 15 (1st Cir.2002), and can affirm for any reason apparent in the record, cf. Jones v. Secord, 684 F.3d 1, 5 (1st Cir.2012).

There are two lenses through which we can view Francis's petition. First, we can analyze it as it was literally presented to us: a retroactive challenge to the execution of an incarcerative sentence (that is, a request to change the end date of a previously completed prison term). Alternatively, we could consider it as a protest to the execution of Francis's supervised release term (that is, a request to alter the start date of that feature of the sentence). We address each plausible theory in turn.

i.

Francis presents this case to us as a retroactive attempt to reinstate his good-time credits and to amend his records. Section 2241, however, erects an insurmountable barrier.¹ That habeas provision establishes a mechanism for a federal inmate who is “in custody” to challenge the execution of (rather than the imposition of) his or her sentence. See 28 U.S.C § 2241(c)(3) (“The writ of habeas corpus shall not extend to a prisoner unless ... [h]e [or she] is in custody in violation of the Constitution or laws or treaties of the United States.”); see also Thompson v. United States, 536 F.2d 459, 460–61 (1st Cir.1976).

For example, an individual may invoke § 2241 to dispute a parole board's action, to challenge placement (or lack thereof) in a community confinement center, or to contest one's imprisonment in a specific facility. Id.; see also Muniz v. Sabol, 517 F.3d 29, 33–34 (1st Cir.2008) (collecting cases). This section has also traditionally been available to inmates challenging the revocation of good-time credits. See, e.g., Littlefield v. Caton, 856 F.2d 344 (1st Cir.1988). We assume, without deciding, that this remains true despite recent dicta in Pepper v. United States , 562 U.S. 476, 131 S.Ct. 1229, 1248 n. 14, 179 L.Ed.2d 196 (2011) (“An award of good time credits by the Bureau of Prisons (BOP) does not affect the length of a court-imposed sentence; rather, it is an administrative reward ... Such credits may be revoked at any time before the date of a prisoner's release.”); see also Cardona v. Bledsoe, 681 F.3d 533, 537 n. 8 (3d Cir.2012) (“Indeed, the Supreme Court's recent opinion in [Pepper] calls into question whether an inmate can even bring a habeas claim for an actual loss of good time credits.” (emphasis in original)).

Under this theory, the § 2241 petition here cannot move forward for a simple reason: the petition was moot at the moment it was filed. That is, Francis lost his ability to invoke § 2241 with respect to his prison sentence once he was released from that incarceration. While it is true that an individual serving a supervised release term satisfies the “in custody” requirement (or at least we have said as much for § 2255 purposes), Jackson v. Coalter, 337 F.3d 74, 78–79 (1st Cir.2003), a petition under § 2241 must still target conditions that will have a contemporaneous or prospective impact on one's sentence, see Ford v. Bender, 768 F.3d 15, 29 (1st Cir.2014) (stating that “[a] prisoner's challenge to prison conditions or policies is generally rendered moot by his transfer or release,” and that “[a]ny declaratory or injunctive relief ordered in the inmate's favor in such situations would have no practical impact on the inmate's rights and would not redress in any way the injury he [or she] originally asserted.” (quoting Incumaa v. Ozmint, 507 F.3d 281, 287 (4th Cir.2007) )). Here, Francis's requested remedy will have no such effect.

Although we have only dealt with an analogous case in an unpublished opinion, that decision provides an anchoring point for our analysis. See First Cir. Local R. 32.3(a)(2) (explaining when an unpublished opinion has persuasive value). In Simon v. United States, a § 2241 petitioner argued that the government unlawfully withheld 120 days of his good-time credits. 70 F.3d 1252 (1st Cir.1995). By the time Simon's appeal reached us, however, the government had released the petitioner from custody. Accordingly, we concluded that the case was moot because “there [was] no longer any available relief that [could] be judicially awarded.” Id. at *1. See also...