Ortiz v. Williams
| Decision Date | 12 June 2007 |
| Docket Number | No. 06-260-SLR.,06-260-SLR. |
| Citation | 489 F.Supp.2d 381 |
| Parties | Johnas ORTIZ, Petitioner, v. Raphael WILLIAMS, Warden, and Joseph R. Biden, III, Attorney General of the State of Delaware, Respondents.<SMALL><SUP>1</SUP></SMALL> |
| Court | U.S. District Court — District of Delaware |
Johnas Ortiz, Pro se Petitioner.
Elizabeth McFarlan, Deputy Attorney General, Delaware Department of Justice, Wilmington, DE, for Respondents.
Currently before the court is petitioner Johnas Ortiz's ("petitioner") application for a writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. (D.I. 6) Petitioner is incarcerated at the Howard R. Young Correctional Institution in Wilmington, Delaware. For the reasons that follow, the court will dismiss petitioner's § 2254 application.
In October 2003, petitioner pled guilty in the Delaware Superior Court to possession of burglary tools and criminal impersonation. The Superior Court sentenced petitioner on the burglary tools conviction to 3 years of incarceration at Level V, suspended after 60 days for 6 months of Level IV confinement, followed by 2 years of Level III probation, and ordered petitioner to pay a fine of $100 for his criminal impersonation conviction. Ortiz v. State, 878 A.2d 461, 2005 WL 1653718, at *1 (Del.2005). The sentence was effective as of July 24, 2003. During the same sentencing hearing, the Superior Court found petitioner in violation of two earlier probationary sentences for drug possession and conspiracy. Id. at 878 A.2d 461, 2005 WL 1653718, *1 n. 2.
In January 2004, petitioner's probation officer filed a violation of probation report regarding petitioner's probation for his 2003 burglary tools conviction. The Superior Court held a violation of probation hearing on January 22, 2004 ("VOP hearing"), revoked petitioner's probation after finding him in violation of his probation terms, and re-sentenced petitioner to 2 years and 9 months of Level V imprisonment, suspended immediately for 2 years and 6 months of Level IV work release, suspended in turn after 6 months for one year of Level III probation. Id. at 878 A.2d 461, 2005 WL 1653718, *1.
Petitioner's probation officer filed another violation of probation report in August 2004 and, after a hearing on September 13, 2004, the Superior Court found that petitioner had violated the terms of his 2003 probation again. The Superior Court revoked petitioner's probation and immediately re-sentenced him to 2 years and 9 months of Level V incarceration, suspended after successful completion of the Key Program, to be followed by 6 months of Level IV work release, with the balance of the sentence to be served at Level III probation. Id. Petitioner appealed, arguing that his September 2004 violation of probation hearing had been conducted in violation of his due process rights and that his sentence was illegal because it did not give him credit for Level V time previously served. The Delaware Supreme Court denied petitioner's claims as meritless and affirmed the Superior Court's judgment. Id. Between August 2005 and February 2006, petitioner filed two pro se motions for modification of sentence and a state habeas petition challenging the September 2004 VOP sentence, all three of which were unavailing. See generally (D.I. 15, Del.Super. Ct.Crim. Dkt. in ID No. 0308001824)
Another violation of probation report was filed in February 2006. (D.I. 15, Del.Super. Ct.Crim. Dkt. in ID No. 0308001824, at Nos. 43 & 45) Petitioner filed a state post-conviction motion pursuant to Delaware Superior Court Criminal Rule 61 challenging that report, as well as a motion to dismiss the new violation of probation charge. (D.I. 15, Del.Super. Ct.Crim. Dkt. in ID No. 0308001824, at Entry Nos. 46-49) The Delaware Superior Court denied both motions, and petitioner did not appeal. After conducting a hearing on June 12, 2006, the Delaware Superior Court found petitioner in violation of the probation for his burglary tools conviction. Id. at Nos. 52 -53. The Superior Court revoked petitioner's probation and sentenced him to 2 years and 9 months of Level V incarceration with credit for 10 months and 1 day for time previously served, to be suspended after 4 months and 3 days for one year of supervision at Level III. That sentence was effective as of February 9, 2006. (D.I. 15, State v. Ortiz, Crim. A. No. VN03-08-1132-03, Order) (Del.Super. Ct. June 12, 2006).
Petitioner's habeas application asserts two claims: (1) his September 2004 violation of probation sentence violates the Double Jeopardy Clause of the United States Constitution because the Superior Court failed to credit him with all the time he previously served at Level V incarceration; and (2) the Key Program was operating outside constitutional parameters in 2004, thus, the September 2004 VOP sentence is illegal because it required petitioner to complete the Key Program as part of his Level V incarceration. (D.I. 6) The State filed an answer asking to the court to dismiss the application as moot because petitioner has been re-sentenced since September 2004 and, therefore, the sentence being challenged is no longer in effect. (D.I. 12, at 3)
Pursuant to Article III, Section 2, of the United States Constitution, federal courts can only consider ongoing cases or controversies. Lewis v. Continental Bank, Corp., 494 U.S. 472, 477-78, 110 S.Ct. 1249, 108 L.Ed.2d 400 (1990); United States v. Kissinger, 309 F.3d 179, 180 (3d Cir.2002)( that an actual controversy must exist during all stages of litigation). When a habeas petitioner challenges his underlying conviction, and he is released during the pendency of his habeas petition, federal courts presume that "a wrongful criminal conviction has continuing collateral consequences" sufficient to satisfy the injury requirement. Spencer v. Kemna, 523 U.S. 1, 8, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998); see Steele v. Blackman, 236 F.3d 130, 134 n. 4 (3d Cir.2001). However, when, as here, a petitioner challenges his sentence rather than his conviction, the injury requirement is not presumed. See Chong v. District Director, INS, 264 F.3d 378, 383-84 (3d Cir.2001). Rather, the petitioner must show some "collateral consequence" stemming from the alleged sentencing error, and that his injury is "likely to be redressed by a favorable judicial decision." Spencer, 523 U.S. at 7, 118 S.Ct. 978. In the absence of continuing collateral consequences, a claim is moot, and a federal district court does not have jurisdiction to review moot habeas claims. See North Carolina v. Rice, 404 U.S. 244, 246, 92 S.Ct. 402, 30 L.Ed.2d 413 (1971) (); Chong, 264 F.3d at 383-84.
In Delaware, upon finding a defendant guilty of violating his probation, the Superior Court is authorized to re-impose any previously suspended prison term, with credit for all Level V time previously served. Del.Code Ann. tit. 11, §§ 3901(c) & 4334(c); Gamble v. State, 728 A.2d 1171, 1172 (De1.1999). The Level V time to be credited includes time served at the VOP center following a probation violation and time served awaiting space availability at Level IV. Gamble, 728 A.2d at 1172; Del. Code Ann. tit. 11, § 3901(c).
In this case, petitioner's original sentence in 2003 was for 3 years at Level V, suspended after serving 60 days. Upon finding that petitioner violated his probation in January 2004, the Superior Court was authorized to sentence petitioner to 2 years and 10 months of Level V time (3 years less the 60 days served). The Superior Court re-imposed 2 years and 9 months of Level V time, which reflects the 60 days previously served plus another 30 days served at Level V. See Harris v. State, 768 A.2d 469 (Table), 2001 WL 257797, at *1 (Del.2001)( that reimposing "the suspended portion of the original sentence upon a subsequent finding of a VOP inherently credits a defendant with any time the defendant has served on the unsuspended portion of the original sentence.").
Consequently, upon finding a violation of probation in September 2004, the maximum amount of Level V time the Superior Court could re-impose was 2 years and 9 months. Pavulak v. State, 880 A.2d 1044, 1045-46 (Del.2005). The Superior Court was also required to credit petitioner for any additional time served at Level V, and that is the premise for petitioner's first claim. Specifically, petitioner contends that his September 2004 VOP sentence violates double jeopardy because the Superior Court failed to credit him with 169 days (5 months 19 days) of time previously served.2 According to petitioner, if the Superior Court had properly credited him with time served at Level V, the September 2004 VOP sentence order would have imposed 2 years 6 months and 11 days of Level V incarceration rather than 2 years 9 months of Level V incarceration. (D.I. 12)
In its answer, the State does not address petitioner's calculation of credit, but instead argues that petitioner's claim regarding the credit miscalculation became moot upon petitioner's new VOP sentence in June 2006. The court finds the State's argument persuasive. Even if the Superior Court erroneously failed to credit petitioner with 169 days of credit when it sentenced him for his VOP in 2004,3 petitioner's September 2004 VOP sentence ceased when it was revoked upon his violation of probation sentencing in June 2006. Petitioner's June 2006 VOP sentence, (effective as of February 9, 2006 and suspended after 4 months), re-imposed 2 years and 9 months of Level V incarceration, with credit for 10 months and 1 day for time served. The credit for 10 months and 1 day covers the 169 days (5 months and 19 days) of credit petitioner claims should have been credited on his September 2004 VOP sentence, as well as an additional 132 days (4 months and 12 days) of credit for other un-identified time served at Level V. Thus, the new VOP...
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