                                                                                                                           Opinions of the United
2008 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


11-3-2008

Scott v. Schuylkill FCI
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-4494




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Recommended Citation
"Scott v. Schuylkill FCI" (2008). 2008 Decisions. Paper 274.
http://digitalcommons.law.villanova.edu/thirdcircuit_2008/274


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ELD-5                                                            NOT PRECEDENTIAL

                          UNITED STATES COURT OF APPEALS
                               FOR THE THIRD CIRCUIT
                                    ___________

                                        No. 07-4494
                                        ___________

                                     ALAN N. SCOTT,
                                                 Appellant

                                              v.

                                    SCHUYKILL FCI
                         ____________________________________

                       On Appeal from the United States District Court
                           for the Middle District of Pennsylvania
                                 (D.C. Civil No. 06-cv-01790)
                        District Judge: Honorable A. Richard Caputo
                        ____________________________________

            Submitted for Possible Dismissal Pursuant to 28 U.S.C. § 1915(e)(2)(B)
            or Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                      October 23, 2008

                    Before: BARRY, SMITH and GARTH, Circuit Judges

                              (Opinion filed November 3, 2008)
                                          _________

                                          OPINION
                                         _________

PER CURIAM

        Appellant Alan N. Scott appeals from the order of the United States District Court

for the Middle District of Pennsylvania dismissing his petition filed under 28 U.S.C. §

2241 as moot because of Scott’s release from incarceration.

        Scott filed a § 2241 petition on September 13, 2006, claiming that the Bureau of
Prisons (BOP) denied him due process with respect to a prison disciplinary proceeding

conducted pursuant to an incident report dated June 4, 2001. He alleges that the incident

report was based on hearsay, not personal knowledge, and he disputes whether the “one-

sided” verbal altercation for which he was disciplined constituted “fighting with another

person” under prison regulations. Scott also asserts that he never saw the evidence

against him. He seeks the restoration of 27 days of good conduct time and the

expungement of his disciplinary record.

       At the time he filed the § 2241 petition, Scott was serving a 96-month term of

imprisonment following his conviction in the District of Massachusetts on numerous

counts of bank fraud and related identity theft offenses. He was incarcerated at the

Federal Correctional Institution Schuykill (FCI-Schuykill) in Minersville, Pennsylvania.

On September 29, 2006, during the pendency of the § 2241 proceedings, the BOP

released Scott from custody. He was transferred to the custody of the United States

Marshal on a pre-trial detainer pursuant to an indictment filed in the United States District

Court for the Eastern District of New York, charging him with mail fraud that occurred in

the 1990’s.1

       The BOP responded, asserting that the § 2241 petition should be dismissed as

moot because Scott had completed serving his prison sentence. Citing United States v.


   1
     See United States v. Scott, Crim. A. No. 06-00731 (E. D. N. Y.). During the
pendency of this appeal, on April 29, 2008, the United States District Court in the Eastern
District of New York sentenced Scott in both of his pending criminal cases to thirty-two
months in prison.

                                             2
Johnson, 529 U.S. 53 (2000), the Magistrate Judge recommended that Scott’s petition be

denied as moot. The Magistrate Judge found that Scott’s good time credits could not be

restored because he had completed serving his term of imprisonment. The Magistrate

Judge rejected, as entirely speculative, Scott’s contention that he demonstrated collateral

consequences based on a possible future sentence of imprisonment in the Eastern District

of New York. Scott objected to the Magistrate Judge’s Report.

       On June 18, 2007, the United States District Court for the Middle District of

Pennsylvania overruled Scott’s objections, adopted the Magistrate Judge’s Report and

dismissed the § 2241 petition as moot. Scott’s timely filed Objections crossed in the mail

with the District Court’s order adopting the Magistrate Judge’s Report and dismissing the

petition as moot. Scott moved for reconsideration based on his objections to the

Magistrate Judge’s Report; the court denied the motion in an order entered on November

9, 2007. Scott appeals.

       We have jurisdiction over this appeal pursuant to 28 U.S.C. § 1291. Upon de novo

review of the record and careful consideration of Scott’s response to the notice of possible

summary action, we conclude that no substantial question is presented on appeal and that

summary action is warranted. See LAR 27.4 and I.O.P. 10.6.

       “Once the convict’s sentence has expired, some concrete and continuing injury

other than the now-ended incarceration or parole - some ‘collateral consequence’ of the

conviction - must exist if the suit is to be maintained.” Spencer v. Kemna, 523 U.S. 1, 7

(1998). A presumption of collateral consequences arising from a wrongful criminal

                                             3
conviction exists in cases where a habeas petitioner challenges the legality of his criminal

conviction. But the Court has not extended this presumption to cases where the habeas

petitioner attacks a prison sentence that has been completed. United States v. Jackson,

523 F.3d 234, 241 (3d Cir. 2008). Thus, Scott’s § 2241 petition challenging the execution

of his prison sentence was moot upon his release from imprisonment unless he can

demonstrate some “collateral consequence” that persists beyond the sentence’s expiration

and is likely to be redressed by a favorable judicial decision. See Spencer v. Kemna, 523

U.S. at 7.

       Scott’s § 2241 petition is moot because it is not redressable by a favorable judicial

decision. By the time the District Court had rendered its decision, Scott’s sentence had

ended and his supervised release had begun. See 18 U.S.C. § 3624(e) (2000) (“The term

of supervised release commences on the day the person is released from imprisonment”).

Good time credits affect the timing of an inmate’s conditional release from prison, but

they do not alter the sentence itself. Thus, once Scott served the entire term of

imprisonment and was released upon its completion, his good time credits ceased to have

any effect. See 28 C.F.R. § 2.35(b); see also 28 C.F.R. § 523.2(c). His assertion that his

discipline for “fighting with another person” may adversely affect his future classification

is too speculative to demonstrate collateral consequences, nor can his complaint be

remedied during his second incarceration.

       Accordingly, the District Court judgment is summarily affirmed. Scott’s motion

for a stay of the appeal is denied.

                                             4
