                                                                                                                           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Precedential or Non-Precedential: Precedential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
