Lorance v. Commandant

• Decision Date: 24 January 2020
• Docket Number: CASE NO. 19-3232-JWL
• Citation: 435 F.Supp.3d 1169
• Parties: Clint A. LORANCE, Petitioner, v. COMMANDANT, U.S. Disciplinary Barracks, Respondent.
• Court: U.S. District Court — District of Kansas

435 F.Supp.3d 1169

Clint A. LORANCE, Petitioner,

v.COMMANDANT, U.S. Disciplinary Barracks, Respondent.

CASE NO. 19-3232-JWL

United States District Court, D. Kansas.

Signed January 24, 2020

Carrie Elizabeth Parker, Christopher Michael Joseph, Diane L. Bellquist, Joseph, Hollander & Craft, LLC, Topeka, KS, David G. Bolgiano, Pro Hac Vice, Malone, Dwire & Thompson LLC, Wichita, KS, Donald M. Brown, Jr., Pro Hac Vice, Brown & Associates, PLLC, Charlotte, NC, John N. Maher, Pro Hac Vice, Maher Legal Services, PC, St. Charles, IL, for Petitioner.

Jared S. Maag, Office of United States Attorney, Topeka, KS, for Respondent.

MEMORANDUM AND ORDER

JOHN W. LUNGSTRUM, UNITED STATES DISTRICT JUDGE

This matter is a petition for habeas corpus filed under 28 U.S.C. § 2241, challenging Petitioner's conviction by general court-martial. At the time of filing, Petitioner was confined at the United States Disciplinary Barracks in Fort Leavenworth, Kansas. This matter is before the Court on Respondent's Motion to Dismiss (Doc. 10) in light of the Petitioner having received a Presidential Pardon. Petitioner has filed a Response (Doc. 13), and Respondent has filed a Reply (Doc. 14). The Court held a hearing on the motion on January 8, 2020, and took the matter under advisement. The Court, determining that Petitioner's acceptance of the Pardon was an admission of his guilt leaving this matter without a case or controversy, finds that the motion should be granted.

I. Factual Background

On November 12, 2019, Petitioner filed a Petition for Writ of Habeas Corpus, challenging his conviction by general court-martial. On November 15, 2019, the President of the United States granted Petitioner a full and unconditional Pardon. See Doc. 12. Petitioner was released from custody that evening, and is no longer confined at the United States Disciplinary Barracks in Fort Leavenworth, Kansas. On November 18, 2019, Respondent filed a Motion to Dismiss (Doc. 10), arguing that the Presidential Pardon: (1) divested Respondent of the custody and control over Petitioner; (2) left this Court without jurisdiction over the entire proceeding as Petitioner is no longer residing in the District of Kansas; and (3) left this matter with want of a case-or-controversy given that Petitioner is, for all-intents-and-purposes, not convicted of a federal offense concerning which relief can be granted. (Doc. 10, at 3.)

II. Standards

Federal courts are courts of limited jurisdiction and, as such, must have a statutory or constitutional basis to exercise jurisdiction. Montoya v. Chao , 296 F.3d 952, 955 (10th Cir. 2002) ; see United States v. Hardage , 58 F.3d 569, 574 (10th Cir. 1995) ("Federal courts have limited jurisdiction, and they are not omnipotent. They draw their jurisdiction from the powers specifically granted by Congress, and the Constitution, Article III, Section 2, Clause 1." (internal citations omitted)).

The party who seeks to invoke federal jurisdiction bears the burden of establishing that such jurisdiction is proper. Montoya , 296 F.3d at 955 ; see also Kokkonen v. Guardian Life Ins. Co. of Am. , 511 U.S. 375, 377, 114 S.Ct. 1673, 128 L.Ed.2d 391 (1994) (finding that because federal courts are courts of limited jurisdiction, a presumption exists against jurisdiction, and "the burden of establishing the contrary rests upon the party asserting jurisdiction"). "Mere conclusory allegations of jurisdiction are not enough." United States ex rel. Hafter, D.O. v. Spectrum Emergency Care, Inc. , 190 F.3d 1156, 1160 (10th Cir. 1999) (citation omitted).

"Motions to dismiss for lack of subject matter jurisdiction generally take one of two forms: (1) a facial attack on the sufficiency of the complaint's allegations as to subject matter jurisdiction; or (2) a challenge to the actual facts upon which subject matter jurisdiction is based." City of Albuquerque v. U.S. Dep't of Interior , 379 F.3d 901, 906 (10th Cir. 2004) (internal citations omitted). If the motion challenges the sufficiency of the complaint's jurisdictional allegations, the court must accept all such allegations as true. Holt v. United States , 46 F.3d 1000, 1002 (10th Cir. 1995). If there is a challenge to the actual facts, the court has discretion to allow affidavits and other documents to resolve disputed facts. Id. at 1003.

III. Analysis

A. Effect of Release from Custody on Jurisdiction

A transfer and accompanying custodial change does not defeat initial jurisdiction. See Pinson v. Berkebile , 604 F. App'x 649, 652–53 (10th Cir. 2015) ; Griffin v. Ebbert , 751 F.3d 288, 290–91 (10th Cir. 2014) ("Jurisdiction attached on that initial filing for habeas corpus relief, and it was not destroyed by the transfer of petitioner and accompanying custodial change") (citations omitted); Santillanes v. U.S. Parole Comm'n , 754 F.2d 887, 888 (10th Cir. 1985) (citations omitted) ("It is well established that jurisdiction attaches on the initial filing for habeas corpus relief, and it is not destroyed by a transfer of the petitioner and the accompanying custodial change."); see also Atkins v. Garcia , 816 F. Supp. 2d 1108, 1117 (D. Colo. 2011) (finding that jurisdiction attached at the initial filing and was not destroyed by a transfer and stating that "[s]ince Respondent has not sought substitution of party, the U.S. Attorney, on behalf of the BOP, and the currently named Respondent in this action, who agreed to the transfer of Applicant ... are responsible for implementing the directives in this Order.").

Petitioner was not transferred, but rather was released from custody on November 15, 2019, pursuant to the Presidential Pardon. Section 2241 provides that "[t]he writ of habeas corpus shall not extend to a prisoner" unless the prisoner is "in custody." 28 U.S.C. § 2241(c). Although a petitioner's release from custody does not automatically moot a habeas petition, to maintain the action a petitioner "must demonstrate that serious collateral consequences of his incarceration exist—i.e., that there is ‘some concrete and continuing injury.’ " See Holley v. Andraschko , 80 F. App'x 614, 615 (10th Cir. 2003) (unpublished) (quoting Spencer v. Kemna , 523 U.S. 1, 7, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998) ).

Petitioner argues that he continues to suffer "collateral consequences" associated with his Petition, notably his "dismissal" (a commissioned officer's dishonorable discharge from the Army). Petitioner also argues that the Pardon did not restore his back pay, rank, years of confinement credited toward active duty retirement, or Veterans Administration benefits. Id. Petitioner argues that in light of the collateral consequences he still faces, his habeas petition is not moot. Petitioner argues that the Pardon did not erase or expunge his record of conviction, does not imply innocence, and does not restore his right to vote or sit on a jury. (Doc. 13, at 3.)

The Court finds that Petitioner has alleged sufficient collateral consequences. See Carafas v. LaVallee , 391 U.S. 234, 237, 88 S.Ct. 1556, 20 L.Ed.2d 554 (1968) (holding that habeas petition is not moot as long as petitioner suffers "collateral consequence"); Brown v. Resor , 393 U.S. 10, 89 S.Ct. 51, 21 L.Ed.2d 23 (1968) (remanding court-martial case in light of Carafas ); Brown v. Resor , 407 F.2d 281, 283 (5th Cir. 1969) (acknowledging on remand that collateral consequences could support consideration of habeas petition arising out of court-martial even after the petitioner was no longer in custody); McAliley v. Birdsong , 451 F.2d 1244, 1246 (6th Cir. 1971) (finding that undesirable discharge carries with it serious "collateral consequences" which, under Carafas , require holding that case is not moot).

Therefore, without considering the Pardon in this case, Petitioner's "collateral consequences" would prevent his habeas petition from becoming moot upon his release from custody. For example, if Petitioner had been released from custody due to the fact that he had served his sentence, his collateral consequences would provide a continuing case and controversy. However, the Court must determine the effect of the Pardon in this case.

B. Acceptance of Presidential Pardon

Article II of the United States Constitution recognizes the power of the President to "grant Reprieves and Pardons for Offenses against the United States, except in Cases of Impeachment." U.S. Const., Art. II, § 2, cl. 1. A presidential pardon must be accepted to be effective, and a party is free to reject it. Burdick v. United States , 236 U.S. 79, 94, 35 S.Ct. 267, 59 L.Ed. 476 (1915). In United States v. Wilson , the Supreme Court observed:

A pardon is a deed, to the validity of which, delivery is essential, and delivery is not complete, without acceptance. It may then be rejected by the person to whom it is tendered; and if it be rejected, we have discovered no power in a court to force it on him.

United States v. Wilson , 32 U.S. 150, 7 Pet. 150, 161, 8 L.Ed. 640 (1833). "The necessity for acceptance in the case of a pardon is usually based on two distinct grounds. First, that the pardon is a deed, and like every deed, must be delivered and accepted to be valid; secondly, that taking advantage of a pardon imputes a confession of a crime, hence to make a pardon binding without an acceptance would be forcing the person to admit guilt though innocent." 3 Constitutional Rights of the Accused 3d § 28.5, n. 41 (3d ed.), Joseph G. Cook (quoting Comment, "The Pardoning Power of the Chief Executive," 6 Fordham Law Review 255, 264 (1937)); see also Marino v. INS , 537 F.2d 686, 693 (2nd Cir. 1976) (noting serious consequences which would follow if unsolicited amnesty operated as a waiver without acceptance—it would "nail down as final a conviction which had not yet become final" and render the recipient unable to cleanse himself of that stigma no matter how meritorious his appeal might have been—and finding such a result unfair and unwarranted).

Petitioner acknowledges that there was at least an implied...