John Burkey v. Helen Marberry

Opinions of the United

2009 Decisions States Court of Appeals

for the Third Circuit

2-18-2009

John Burkey v. Helen Marberry

Precedential or Non-Precedential: Precedential

Docket No. 07-4782

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

No. 07-4782

_____________

JOHN BURKEY,

Appellant

v.

HELEN J. MARBERRY,

Warden FCI McKean

__________

On Appeal from the United States District Court

for the Western District of Pennsylvania

(D.C. Civil No. 06-cv-00122E)

District Judge: Honorable Sean J. McLaughlin

__________

Argued on November 20, 2008

Before: SCIRICA, Chief Judge, RENDELL, Circuit Judge,

and O’CONNOR,* Retired U.S. Supreme Court Justice.

(Filed: February 18, 2009)

Thomas W. Patton, Esq. [ARGUED]

Office of Federal Public Defender

1001 State Street

1111 Renaissance Centre

Erie, PA 16501-0000

Counsel for Appellant

John Burkey

Robert L. Eberhardt, Esq.

Laura S. Irwin, Esq. [ARGUED]

Office of the United States Attorney

700 Grant Street, Suite 4000

Pittsburgh, PA 15219-0000

Counsel for Appellee

Helen J. Marberry,

Warden FCI McKean

__________________

* Honorable Sandra Day O’Connor, retired Associate

Justice of the United States Supreme Court, sitting by

designation.

2

__________

OPINION OF THE COURT

__________

RENDELL, Circuit Judge.

The question presented by this appeal is whether

appellant John Burkey’s release from Bureau of Prisons

(“BOP”) custody caused his pending habeas corpus petition –

which challenged the BOP’s failure to grant him early release –

to be moot because it no longer presented a case or controversy

under Article III, § 2, of the Constitution. We agree with the

District Court that Burkey’s petition is moot because his

assertion of “collateral consequences” is insufficient. We will

therefore affirm.

BACKGROUND

In 1996, Burkey was serving a sentence for federal

controlled substances convictions at the Federal Correctional

Institution at McKean in Bradford, Pennsylvania. The BOP

determined that he was eligible for early release pursuant to

3

18 U.S.C. § 3621(e)(2)(B),1 because he had completed a

residential drug treatment program. Burkey received his early

release credit, and was released to serve his term of supervised

release.

While on supervised release, Burkey committed new

controlled substances crimes and was rearrested. In July of

2003, he was sentenced in United States District Court for the

Northern District of Ohio to a term of imprisonment of

57 months, to be followed by 3 years of supervised release.

A few weeks later, the sentencing court imposed a three-month

supervised release violator term, to be served concurrent with

the 57-month term of imprisonment.

Burkey returned to prison and participated once again in

the drug treatment program, expecting to again qualify for early

1

The statute provides:

Period of Custody ... The period a prisoner

convicted of a nonviolent offense remains in

custody after successfully completing a treatment

program may be reduced by the Bureau of

Prisons, but such reduction may not be more than

one year from the term the prisoner must

otherwise serve.

18 U.S.C. § 3621(e)(2)(B).

4

release. However, the BOP, relying on a recently adopted rule,

namely, Paragraph 5(c) of Program Statement 5331.01,2

2

Paragraph 5 of Program Statement 5331.01 states in

pertinent part:

5. EARLY RELEASE CRITERIA. In this

section, we briefly describe the criteria that an

inmate must meet to be eligible for early release.

For details on the early release criteria, see

[28 C.F.R. § 550.58].

* * * *

a. Eligibility Criteria for Early Release.

Inmates must meet the following eligibility

criteria to earn early release:

* * * *

# Residential Drug Abuse Program

Completion. To earn early release, an

inmate must complete all required

components of the residential drug abuse

program (RDAP) successfully. RDAP

completion is defined in the Psychology

Services Manual.

* * * *

(continued...)

5

determined that he was ineligible for early release because he

had previously received an early release credit under the statute.

Burkey pursued his administrative remedies through the

BOP, attempting at first to raise an ex post facto argument. The

Warden denied him relief and he lost his appeal at the Regional

level. Upon denial of that appeal, he filed a Central Office

Administrative Remedy Appeal, arguing for the first time that

Paragraph 5(c) of Program Statement 5331.01 was issued in

violation of the Administrative Procedures Act and thus was

invalid. In March of 2006, Burkey’s Central Office

2

(...continued)

c. Inmates Ineligible for Early Release. The

Bureau has determined that the following

categories of inmates are not eligible for early

release:

* * * *

# Prior Early Release Granted. Inmates

may earn an early release for successful

RDAP completion only once. Inmates

returning on supervised release violations

and/or inmates who are sentenced for new

offenses are not eligible for early release if

they received it previously....

Bureau of Prisons Program Statement 5331.01, at ¶ 5

(September 29, 2003, as corrected, October 3, 2003).

6

Administrative Remedy Appeal was denied on the basis that his

ex post facto claim had no merit. The APA claim was not

addressed.

In May of 2006, Burkey filed a pro se petition for writ of

habeas corpus, 28 U.S.C. § 2241, in United States District Court

for the Western District of Pennsylvania, where he was

confined. He challenged the BOP’s determination that he was

not eligible for early release under 18 U.S.C. § 3621(e)(2)(B),

urging that Paragraph 5(c) of Program Statement 5331.01 was

promulgated in violation of the Administrative Procedures Act,

5 U.S.C. § 553, and was, therefore, invalid. Burkey asked to be

released from detention. The Federal Public Defender was

appointed to represent him.

In August of 2007, the Magistrate Judge issued a

thorough Report and Recommendation, concluding that the BOP

had violated the APA. The APA provides that an agency may

not adopt a rule without providing prior notice through

publication in the Federal Register and comment. 5 U.S.C.

§ 553(b), (c). The Magistrate Judge reasoned that Paragraph

5(c) of Program Statement 5331.01 was neither an exempt

“interpretative rule” nor an exempt general statement of policy.

See Dia Navigation Co., Ltd. v. Pomeroy, 34 F.3d 1255, 1264

(3d Cir. 1994). It was instead a legislative rule, see id., subject

to the APA, and the BOP could not avoid the APA’s

requirements by placing a legislative rule in a Program

Statement, instead of first publishing it in the Federal Register.

7

The Magistrate Judge recommended that Burkey’s request for

habeas corpus relief be granted because he had completed the

residential drug treatment program.

On September 7, 2007, the BOP released Burkey from

custody, nine days before his statutory release date of

September 16, 2007. It then filed in this case a Notice of

Suggestion of Mootness, contending that, because Burkey had,

through his release, achieved the object of his habeas corpus

petition, his case was moot. Burkey filed a written response,

and urged that his petition was not moot because, if the District

Court would issue an order approving and adopting the

Magistrate Judge’s Report and Recommendation, he then would

be able to argue to the sentencing court in Ohio that his

supervised release term should be shortened in light of his

having been improperly denied early release from prison.3

3

Pursuant to 18 U.S.C. § 3583(e), only the sentencing court

has the authority to modify Burkey’s term of supervised release.

See generally Gozlon-Peretz v. United States, 498 U.S. 395,

400-01 (1991) (under Sentencing Reform Act sentencing court

oversees “post[-]confinement monitoring” and may “terminate,

extend, or alter the conditions of the term of supervised release

prior to its expiration” pursuant to § 3583(e)); United States v.

Lussier, 104 F.3d 32, 34-35 (2d Cir. 1997) (under § 3583(e)

sentencing court retains authority to revoke, discharge, or

modify terms and conditions of supervised release following its

initial imposition of supervised release term).

8

The District Court dismissed Burkey’s habeas corpus

petition as moot. The court observed that, to avoid a finding of

mootness, Burkey would have to demonstrate that the delayed

commencement of his supervised release term was likely to be

redressed by a favorable judicial decision, Spencer v. Kemna,

523 U.S. 1, 7 (1998). The court concluded that it was “pure

speculation that a favorable decision from this Court would

‘likely’ result in [Burkey’s] sentencing court reducing or

terminating his supervised release term under Section 3583(e).”

Burkey v. Lappin, 2007 WL 4480188, at * 2 (W.D. Pa.

December 14, 2007). The District Court did not believe it could

predict what the sentencing court would do in Burkey’s case,

and thus it could not conclude that the relief sought likely would

be granted.

The District Court rejected precedent in the Second and

Ninth Circuits, Levine v. Apker, 455 F.3d 71 (2d Cir. 2006), and

Mujahid v. Daniels, 413 F.3d 991 (9th Cir. 2005), which permit

a case to continue when there is only a “possibility” that a court

might modify a term of supervised release, and concluded that

more is required to maintain a case or controversy under

Article III. The District Court also referred to the view

expressed by the Supreme Court in United States v. Johnson,

529 U.S. 53 (2000), that incarceration and supervised release

serve distinct objectives and are not to be viewed as

interchangeable punitive measures. Burkey, 2007 WL 4480188,

at * 2 (citing Johnson, 529 U.S. at 57-58). This, the District

Court reasoned, detracted from the likelihood that the sentencing

9

court would modify Burkey’s term of supervised release based

on his having been in prison longer than he perhaps should have

been as a result of the BOP’s APA violation.

Burkey appeals. We have jurisdiction pursuant to

28 U.S.C. § 1291. United States v. Ceparo, 224 F.3d 256,

264-65 (3d Cir. 2000) (certificate of appealability not required

to appeal from denial of section 2241 petition). The standard of

review over the District Court’s mootness determination is

plenary. United States v. Gov’t of Virgin Islands, 363 F.3d 276,

284 (3d Cir. 2004). Insofar as Burkey was in BOP custody

when he filed his habeas corpus petition under 28 U.S.C.

§ 2241, he has satisfied the “in custody” jurisdictional

requirement, Carafas v. LaVallee, 391 U.S. 234, 238 (1968),

and he appropriately filed his habeas corpus petition in the

district of confinement and named the Warden as the

respondent, Rumsfeld v. Padilla, 542 U.S. 426, 443 (2004).

DISCUSSION

A challenge to the BOP’s execution of a sentence is

properly brought under 28 U.S.C. § 2241. Woodall v. Federal

Bureau of Prisons, 432 F.3d at 235, 241-43 (3d Cir. 2005);

Coady v. Vaughn, 251 F.3d 480, 485 (3d Cir. 2001). The BOP

waived any exhaustion of administrative remedies argument it

might have had concerning the APA claim insofar as 28 C.F.R.

§ 542.15 prohibits an inmate from raising on appeal an issue that

was not raised at the initial and intermediate levels of the

10

administrative remedy process. Burkey’s habeas corpus petition

sought release from prison based on the invalidity under the

APA of the Program Statement denying him early release. That

relief was afforded him when, on the Magistrate Judge’s

recommendation, the BOP released him in September of 2007

to begin serving his 3-year term of supervised release. Given

this, is a case or controversy still presented? We conclude the

answer is no, and, therefore, Burkey’s habeas corpus petition is

moot.

Under Article III of the Constitution, a federal court may

adjudicate “only actual, ongoing cases or controversies.” Lewis

v. Continental Bank Corp., 494 U.S. 472, 477 (1990). “To

invoke the jurisdiction of a federal court, a litigant must have

suffered, or be threatened with, an actual injury traceable to the

defendant and likely to be redressed by a favorable judicial

decision.” Id. (citing Allen v. Wright, 468 U.S. 737, 750-751

(1984); Valley Forge Christian College v. Americans United for

Separation of Church & State, Inc., 454 U.S. 464, 471-473

(1982)). Article III denies the District Court the power to decide

questions that cannot affect the rights of litigants before it, and

confines it to resolving live controversies “admitting of specific

relief through a decree of a conclusive character, as

distinguished from an opinion advising what the law would be

upon a hypothetical state of facts.” Aetna Life Insurance Co. v.

Haworth, 300 U.S. 227, 241 (1937).

11

The case or controversy requirement continues through

all stages of federal judicial proceedings, trial and appellate, and

requires that parties have a personal stake in the outcome.

Lewis, 494 U.S. at 477-478. “This means that, throughout the

litigation, the plaintiff ‘must have suffered, or be threatened

with, an actual injury traceable to the defendant and likely to be

redressed by a favorable judicial decision.’” Spencer, 523 U.S.

at 7 (quoting Lewis, 494 U.S. at 477). Incarceration satisfies the

case or controversy requirement; it is a concrete injury caused by

a conviction and is likely to be redressed by invalidation of the

conviction. Id. Once a sentence has expired, however, some

continuing injury, also referred to as a collateral consequence,

must exist for the action to continue. Id.

Following Sibron v. New York, 392 U.S. 40 (1968), the

Supreme Court “abandoned all inquiry into the actual existence

of collateral consequences,” id. at 55, and “proceeded to accept

the most generalized and hypothetical of consequences as

sufficient to avoid mootness” in a challenge to a conviction.

Spencer, 523 U.S. at 10. In Lane v. Williams, 455 U.S. 624

(1982), the Court declined to extend the presumption of

collateral consequences in the context of a challenge to a

mandatory parole violator term when, during the pendency of

the litigation, the term had expired. Id. at 632-33. Most recently

in Spencer, the Court “decline[d] to presume that collateral

consequences adequate to meet Article III's injury-in-fact

requirement resulted from petitioner's parole revocation,”

Spencer, 523 U.S. at 14, once that term had expired. As in

12

Lane, the fact that the parolee was not challenging the validity

of his conviction factored heavily in the decision not to presume

collateral consequences.

Thus, collateral consequences will be presumed when the

defendant is attacking his conviction while still serving the

sentence imposed for that conviction, but we also have held that

they will be presumed where the defendant is attacking that

portion of his sentence that is still being served. See, e.g.,

United States v. Jackson, 523 F.3d 234, 242 (3d Cir. 2008). In

Jackson, we held that collateral consequences are presumed

where the appellant was still serving a term of supervised

release and her challenge was to the reasonableness of the

supervised release term. Id. Where, however, the appellant is

attacking a sentence that has already been served, collateral

consequences will not be presumed, but must be proven. See

United States v. Cottman, 142 F.3d 160, 165 (3d Cir. 1998).

Burkey has served his sentence but remains subject to a

3-year term of supervised release. However, he did not

challenge the validity or reasonableness of that term in his

habeas corpus petition, as did the appellant in Jackson. His

challenge was more remote, attacking only what the BOP had

done, and urging it as the basis for the sentencing court to now

afford him relief against an indisputably valid term of

supervised release. In such circumstances, he must demonstrate

that collateral consequences exist; they will not be presumed.

Cf. Jackson, 523 F.3d at 241 (Cottman held that collateral

13

consequences will not be presumed when “[a] defendant who is

serving a term of supervised release ... challenges only his

completed sentence of imprisonment”).

Even though collateral consequences are not presumed,

a petitioner may still avoid a finding of mootness if he can show

a continuing injury, or collateral consequence, that is sufficient.

Spencer, 523 U.S. at 14. The delayed commencement of

Burkey’s validly imposed term of supervised release is, he

alleges, his “continuing injury,” but this is insufficient for

mootness purposes in his case, given his release from BOP

custody. We reach this conclusion because the Supreme Court,

in Lewis and Spencer, addressed the issue of collateral

consequences in terms of the “likelihood” that a favorable

decision would redress the injury or wrong. In fact, in Spencer,

the Court rejected numerous collateral consequences proffered

by the petitioner because they were no more than “a possibility

rather than a certainty or even a probability,” or pure

speculation. 523 U.S. at 14-16.4

4

The petitioner in Spencer alleged that the revocation of his

parole could be used to his detriment in a future parole

proceeding, but the Court rejected this as “a possibility rather

than a certainty or even a probability” because, under Missouri

law, a prior parole revocation is but one factor among many to

be considered by the parole authority. Spencer, 523 U.S. at 14.

The petitioner also contended that the revocation could be used

(continued...)

14

The “likely” outcome here is not that the District Court’s

order will cause the sentencing court in Ohio to reduce Burkey’s

term of supervised release. Quite apart from the instant petition,

Burkey has the right to file in the sentencing court a motion for

termination of his term of supervised release pursuant to

18 U.S.C. § 3583(e), because he has served one year of his term.

Under 18 U.S.C. § 3583(e)(1), a defendant who has completed

one year of his supervised release term may file a motion, and

the sentencing court has the authority to terminate a defendant’s

supervised release obligations “at any time after the expiration

of one year ... if it is satisfied that such action is warranted by

the conduct of the defendant released and the interest of justice.”

18 U.S.C. § 3583(e)(1).

However, the District Court reasoned that Burkey’s

ability to obtain modification under the supervised release

4

(...continued)

to increase his sentence in a future sentencing proceeding. The

Court rejected this because it was contingent upon the

speculative possibility that the petitioner would violate the law,

get rearrested, and be convicted. Id. The Court rejected

petitioner's third and fourth contentions – that the finding of a

parole violation for forcible rape and armed criminal action

could be used to impeach him should he appear as a witness or

litigant in a future criminal or civil proceeding, or could be used

against him directly pursuant to Federal Rule of Evidence 405

– as, again, purely a matter of speculation. Id. at 15-16.

15

statute turns on a discretionary decision of the sentencing court,

which must consider many factors pursuant to 18 U.S.C.

§ 3553(a), including those which bear directly on the objectives

of supervised release. From a practical, and legal, standpoint,

we too doubt whether a sentencing judge, having imposed a

specific term of imprisonment and supervised release, would

alter his view as to the propriety of that sentence because the

BOP required the defendant to serve it.

The concept of interchangeability of supervised release for

incarceration was specifically rejected by the Supreme Court in

Johnson, 529 U.S. at 59-60, as the District Court noted. The

probability that the sentencing court here would reduce Burkey’s

term of supervised release – especially given his past recidivism

– as an equalizer for his incarceration, has not been established.

As the applicable § 3553(a) factors indicate, a decision under

§ 3583(e) generally is more directly influenced by the particular

defendant and the underlying conduct that formed the basis for

the term of supervised release. Cf. Lane, 455 U.S. at 632-33

(observing that discretionary decisions made by sentencing court

“are more directly influenced by [ ] the underlying conduct that

formed the basis for the parole violation”).

The possibility that the sentencing court will use its

discretion to modify the length of Burkey’s term of supervised

release under 18 U.S.C. 3583(e), which it may do as long as the

reason for doing so is not to offset excess prison time, Johnson,

16

529 U.S. at 57-60,5 is so speculative that any decision on the

merits by the District Court would be merely advisory and not

in keeping with Article III’s restriction of power. See Flast v.

Cohen, 392 U.S. 83, 96 n.14 (1968) (noting long established rule

against advisory opinions). The District Court may not render

an advisory opinion in Burkey’s case, because “[t]he duty of

[the] court ... is to decide actual controversies by a judgment

which can be carried into effect, and not to give opinions upon

moot questions or abstract propositions, or to declare principles

or rules of law which cannot affect the matter in issue in the

case before it,” Mills v. Green, 159 U.S. 651, 653 (1895).

While our sister courts of appeals have found a live case

or controversy where a “possibility” exists that a court would

reduce a term of supervised release in situations similar to this,

see, e.g., Levine, 455 F.3d 71, and Mujahid, 413 F.3d 991, we

5

In Johnson, which did not involve a mootness issue, the

defendant served excess prison time as a result of certain

vacated sentences. He was released to begin serving his

mandatory three-year term of supervised release and filed a

motion, seeking a credit against his supervised release term for

the excess time he spent in prison, which was denied. The

Supreme Court agreed that the motion could not be granted,

because, pursuant to the express terms of 18 U.S.C. § 3624(e),

a supervised release term does not commence until an individual

is released from imprisonment and, therefore, a credit was not

automatic. 529 U.S. at 57.

17

are unwilling to do so. We do not believe the reasoning of these

case is supportable, given the Supreme Court’s directives in

Lewis and Spencer. In Cottman, we concluded that the

defendant’s challenge to his sentence, if successful, would

“likely” have resulted in a reduced guideline range and a credit

– given by the same court which originally sentenced him

incorrectly – against his term of supervised release. 142 F.3d at

165. We thus adhere to the requirement that the injury must be

“likely” to be redressed by the judicial decision. A “possibility”

of redress, which is all that Levine and Mujahid require, is not

adequate to survive a mootness challenge. Here, we cannot say

that the injury to Burkey will “likely” be redressed by the

District Court’s grant of his habeas corpus petition.

A comment is in order as to why other courts may have

viewed the “possibility” of redress as sufficient to avoid a

finding of mootness. The Ninth Circuit, in Mujahid, 413 F.3d

991, placed a “heavy” burden on the government to show

mootness, id. at 994, but a court has a “special obligation to

satisfy itself of its own jurisdiction,” McNasby v. Crown Cork

& Seal Co., 832 F.2d 47, 49 (3d Cir. 1987), and we have held

that it is a petitioner’s burden to demonstrate that collateral

consequences exist, United States v. Kissinger, 309 F.3d 179,

181 (3d Cir. 2002). We think this to be the better view, because

it is consistent with the jurisprudence regarding the

“presumption” of collateral consequences. For, if not presumed,

surely they must be proven; and the petitioner is clearly the one

to do so. Cf. Spencer, 523 U.S. at 14 (“The question remains,

18

then, whether petitioner demonstrated such consequences.”).

Levine too can be distinguished because there the parties did not

raise the mootness issue, leaving the court to address it without

the benefit of briefing. 455 F.3d at 77.

We also note that certain permissive language in the

Supreme Court’s discussion in Johnson following its statement

that incarceration and supervised release are not

interchangeable, could be taken as lessening the petitioner’s

burden to show a “likelihood” of relief in the context of the

mootness inquiry. Following the discussion of its holding, the

Court noted that a term of supervised release “may” be modified

where an individual serves excess prison time, specifically

recognizing the ability of the courts to reduce a term of

supervised release when the equities would justify it. The Court

stated:

There can be no doubt that equitable

considerations of great weight exist when an

individual is incarcerated beyond the proper

expiration of his prison term. The statutory

structure provides a means to address these

concerns in large part. The trial court, as it sees

fit, may modify an individual’s conditions of

supervised release.

Johnson, 529 U.S. at 60 (citing 18 U.S.C. § 3583(e)(2)).

19

While this could be said to lower the bar where proving

sufficient collateral consequences is required, we view it,

instead, as nothing more or less than an appropriate reference to

the discretion of a sentencing court to modify a term of

supervised release pursuant to § 3583(e). Consistent with this,

we have referred to this language in support of our ruling in

Cottman that the sentencing court likely would alter the term of

supervised release upon a conclusion that the sentence it

imposed was improper. 142 F.3d at 165. And, in Jackson, we

cited this language from Johnson, and then stated: “Accordingly,

a likely credit against a defendant’s term of supervised release

for an excess term of imprisonment still remains valid after

Johnson. Jackson, 523 F.3d at 239. However, no court has held

that the existence of the discretion available under the

supervised release statute, 18 U.S.C. § 3583(e), is probative of

the question of whether it is “likely,” as is required by Lewis and

Spencer as part of the inquiry into mootness, that a sentencing

court in a particular case will provide relief such that a sufficient

collateral consequence is shown. Thus, we do not agree with the

reasoning of the Second and Ninth Circuits, and conclude that

adherence to the appropriate Article III standards set forth in

Lewis and Spencer requires affirmance.

For the foregoing reasons, we will AFFIRM the order of

the District Court dismissing Burkey’s habeas corpus petition as

moot.

20