Johnson v. Riveland

• Decision Date: 02 September 1988
• Docket Number: No. 85-2817,85-2817
• Citation: 855 F.2d 1477
• Parties: David Earle JOHNSON, Petitioner-Appellee, v. Chase RIVELAND, Respondent-Appellant.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 1477

855 F.2d 1477

David Earle JOHNSON, Petitioner-Appellee, v. Chase RIVELAND, Respondent-Appellant.

No. 85-2817.

United States Court of Appeals Tenth Circuit.

Sept. 2, 1988.

Robert M. Petrusak, Asst. Atty. Gen. of Colorado, Denver, Col. (Duane Woodard, Atty. Gen. of Colorado, Charles B. Howe, Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Eric Perryman, Asst. Atty. Gen., Denver, Colo. were also on the Brief), for respondent-appellant.

William R. Durland, Wallingford, Pa., for petitioner-appellee.

Before HOLLOWAY, Chief Judge, and McWILLIAMS and BALDOCK, Circuit Judges.

HOLLOWAY, Chief Judge.

This appeal involves a petition for habeas corpus brought by a Colorado prisoner, David Earle Johnson. In state court, Johnson was convicted on three counts of aggravated robbery and sentenced to three consecutive terms of 13-40 years. In his habeas petition, Johnson claimed that the denial of credit for time spent in pretrial confinement, with respect to both the maximum and minimum terms imposed, violated the Equal Protection Clause of the Fourteenth Amendment. While the petition was pending in the federal district court, the State granted Johnson parole on September 27, 1985. Nonetheless, the district court granted relief, holding that Johnson was entitled to credit for time spent in pretrial confinement against both the maximum and minimum terms imposed. Johnson v. Riveland, 620 F.Supp. 1425, 1426 (D.Colo.1985).

Even though Johnson had already been paroled prior to the district court's ruling, the State does not press here an argument that the case was moot or urge a disposition here on this ground. The petitioner does not deal with mootness on appeal by any detailed analysis, although he urges a decision on the merits here in his favor. ¹ Nonetheless, we have considered the issue of mootness on our own motion and conclude that the case is moot. In regard to the challenge to the denial of credit against the minimum term which determined the initial parole date, this issue became moot when Johnson was paroled. And since the State had already granted presentence confinement credit against the maximum term before the decision of the district court, and does not challenge the merits of such credit on appeal, this also is not an issue at controversy. Accordingly, we vacate the district court's opinion and judgment and remand with directions to dismiss for mootness.

I

The factual background

On April 11, 1974, Johnson was arrested on three counts of aggravated robbery. Unable to post bond set at $6500, Johnson spent 463 days in a county penal facility prior to trial. Subsequently, Johnson was convicted on all three counts of aggravated robbery, which were punishable by imprisonment for 5-40 years. Colo.Rev.Stat. Secs. 18-1-105, 18-4-302(3) (1978). On July 17, 1975, the trial court sentenced Johnson to three consecutive terms of imprisonment for 13-40 years. On February 29, 1980, the Governor of Colorado commuted Johnson's sentence by reducing the minimum term to 11 years on each of the three counts. On June 10, 1982, the Governor again commuted Johnson's sentence, reducing the minimum term to 7 years on each of the three counts. ²

Johnson then filed an application for postconviction relief in state court, requesting credit for the time he had spent in pretrial confinement. The Colorado district court granted relief, ordering the State Department of Corrections to credit Johnson for 463 days against both the minimum and maximum terms. Although the Department of Corrections granted Johnson full credit against the maximum term, it refused to give any credit with respect to the minimum term. The state district court then issued a writ of mandamus, ordering the Department of Corrections to apply the credit against both the minimum and maximum sentences. The Colorado Court of Appeals reversed, holding that the district court lacked jurisdiction to modify the sentence after it had been commuted by the Governor. The Colorado Supreme Court denied certiorari.

On January 21, 1985, Johnson filed his habeas petition in the United States District Court for the District of Colorado. As noted, while that petition was pending in the district court, Johnson was released on parole. Subsequently the district court granted habeas relief on November 21, 1985, holding that the Equal Protection Clause entitled Johnson to credit on both the minimum and maximum terms. The State of Colorado appealed. On appeal, the State has conceded that Johnson is entitled to credit against the maximum term, but argues that this right does not apply to the minimum term.

II Mootness

While the parties did not suggest mootness in the district court or on this appeal, "it has long been recognized that a federal court must, sua sponte, satisfy itself of its power to adjudicate in every case and at every stage of the proceedings and the court is not bound by the acts or pleadings of the parties." Tafoya v. U.S. Department of Justice, 748 F.2d 1389, 1390 (10th Cir.1984). "The rule in federal cases is that an actual controversy must be extant at all stages of review, not merely at the time the complaint is filed." Steffel v. Thompson, 415 U.S. 452, 459 n. 10, 94 S.Ct. 1209, 1216 n. 10, 39 L.Ed.2d 505 (1974). Further, we have noted:

A federal court's inability "to review moot cases derives from the requirement of Article III of the Constitution under which the exercise of judicial power depends upon the existence of a case or controversy." Liner v. Jafco, Inc., 375 U.S. 301, 306 n. 3 [84 S.Ct. 391, 394 n. 3, 11 L.Ed.2d 347] (1964).... "[F]ederal courts are without power to decide questions that cannot affect the rights of litigants in the case before them." North Carolina v. Rice, 404 U.S. 244, 246 [92 S.Ct. 402, 404, 30 L.Ed.2d 413] (1971) (per curiam)....

Tosco Corp. v. Hodel, 804 F.2d 590, 591 (10th Cir.1986).

Johnson urges the court to recognize a federal constitutional right that under equal protection principles, he is entitled to credit for presentence confinement to reduce both his minimum and maximum sentence. As a matter of either state or federal law, this is an issue of public interest with regard to discrimination against indigent defendants. See Griess v. State of Colorado, 841 F.2d 1042, 1048 (10th Cir.1988). But despite significant public interest, we cannot ignore the requirements of Article III under which the exercise of judicial power depends upon the existence of a case or controversy. DeFunis v. Odegaard, 416 U.S. 312, 316, 94 S.Ct. 1704, 1705-06, 40 L.Ed.2d 164 (1974). And "the question of mootness is a federal one which a federal court must resolve before it assumes jurisdiction." Id. (quoting North Carolina v. Rice, 404 U.S. at 246, 92 S.Ct. at 404)).

Consequently, we will consider the issue of mootness even though neither party has challenged the district court's power to rule. We turn first to the mootness question with respect to Johnson's minimum sentence of thirteen years on each count.

A

Minimum sentence

As noted, the Governor of Colorado commuted Johnson's sentence in 1980 and 1982, effectively reducing the minimum sentence to seven years on each count. As a result, Johnson became eligible for parole and was, in fact, granted parole on September 27, 1985. ³ We think these circumstances, present before the ruling of the district judge was made, rendered moot Johnson's claim regarding credit against the minimum sentence.

Under Colorado law, the only significance of a minimum prison term is the fact that the prisoner then becomes eligible for parole. Colo.Rev.Stat. Secs. 17-2-201(4)(a), 17-2-204(1), Sec. 17-22.5-104(1) (1986); see Espinoza v. Tinsley, 159 Colo. 62, 409 P.2d 835, 838 (1966). As a result, the only effect of the district court's award of credit against the minimum term would be to expedite Johnson's eligibility for parole by 463 days. As noted, however, Johnson had already received parole before the district court's decision. Consequently, once Johnson was granted parole, the issue of his entitlement to credit against the minimum term was no longer capable of judicial resolution. Vandenberg v. Rodgers, 801 F.2d 377, 378 (10th Cir.1986); Corbett v. Luther, 778 F.2d 950, 953 (2d Cir.1985); see also United States ex rel Graham v. United States Parole Commission, 732 F.2d 849, 850 (11th Cir.1984) (habeas challenge to validity of parole regulations is moot because of petitioner's release on parole while appeal was pending); Granville v. United States, 613 F.2d 125, 126 (5th Cir.1980) (dispute relating to previous denial of parole is moot as a result of habeas petitioner's release on parole while the appeal was pending); Brady v. U.S. Parole Commission, 600 F.2d 234, 236 & n. 2 (9th Cir.1979) (same); Pinnon v. Ciccone, 611 F.2d 252, 253 (8th Cir.1979) (appeal is moot as a result of Parole Commission's acceleration of habeas petitioner's presumptive parole date after district court's decision).

Carafas v. LaVallee, 391 U.S. 234, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968), and its progeny are not to the contrary. In Carafas, a habeas petitioner's sentence expired and he was released before a ruling by the Supreme Court. Nevertheless, the Supreme Court granted certiorari and held that expiration of the sentence did not terminate federal habeas jurisdiction, stating:

It is clear that petitioner's cause is not moot. In consequence of his conviction, he cannot engage in certain businesses; he cannot serve as an official of a labor union for a specified period of time; he cannot vote in any election held in New York State; he cannot serve as a juror. Because of these "disabilities or burdens [which] may flow from" petitioner's conviction, he has "a substantial stake in the judgment" of conviction which survives the satisfaction of the sentence imposed on him. On account of these "collateral consequences," the case is not moot.

Id. at 237-38, 88 S.Ct. at 1559 (quoting Fiswick v. United States, 329 U.S. 211, 222, ...