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


10-28-2008

Scott v. Holt
Precedential or Non-Precedential: Non-Precedential

Docket No. 07-3396




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                                                               NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 07-3396
                                      ___________

                                   ALAN N. SCOTT,
                                                        Appellant

                                            v.

                      WARDEN RONNIE HOLT, FCI, Schuykill
                      ____________________________________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                          (D.C. Civil Action No. 06-cv-00425)
                      District Judge: Honorable A. Richard Caputo
                      ____________________________________

                    Submitted Pursuant to Third Circuit LAR 34.1(a)
                                   October 17, 2008

                 Before:, BARRY, SMITH and GARTH, Circuit Judges

                            (Opinion filed October 28, 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.
       In his § 2241 petition, filed in February 2006, Scott claims that the Bureau of

Prisons (BOP) violated his due process rights when they wrongly disciplined him in 2004

for violations of prison rules. All of his allegations challenge the nature and conduct of

the disciplinary hearing process. Scott asserts that the Disciplinary Hearing officer was

biased and that BOP officials testified falsely and presented false incident reports at his

original hearing. He also alleges that BOP officials manufactured new false evidence at

his re-hearing. He seeks the restoration of 190 days of good conduct time and the

expungement of the disciplinary record.

       At the time he filed the § 2241 petition, Scott was serving concurrent 96 month

terms of imprisonment following his convictions in the District of Massachusetts for bank

fraud and related identity theft offenses. He was incarcerated at the Federal Correctional

Institution (FCI-Schuylkill) in Minersville, Pennsylvania. On September 29, 2006, during

the pendency of the § 2241 proceedings, the BOP released Scott from custody upon the

completion of his term of imprisonment. 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 attempt and

conspiracy to commit mail fraud in the 1990’s.1

       The BOP argued that the § 2241 petition was mooted by Scott’s release from


   1
     In April 2007, Scott pled guilty in the Eastern District of New York. See United
States v. Scott, Crim. A. No. 06-00731 (E. D. N. Y.). On April 29, 2008, the U.S. District
Court for the Eastern District of New York sentenced Scott in both of his pending
criminal cases to thirty-two months in prison.

                                              2
incarceration. The Magistrate Judge agreed and recommended that Scott’s petition be

dismissed as moot. The Magistrate Judge found that the loss of good time ended because

of Scott’s release from incarceration on the expired term of imprisonment. Moreover, the

Magistrate Judge determined that, because Scott’s term of supervised release could not be

changed in habeas proceedings, the court could not grant a reduction in the term of

supervised release as a form of relief. The Magistrate Judge also found that the court

could not grant prospective relief, such as crediting the 190-day good conduct time

against a possible future sentence of imprisonment that might be imposed in the Eastern

District of New York. Scott objected.

       On June 18, 2007, the U.S. District Court overruled Scott’s objections, adopted the

Magistrate Judge’s Report, and dismissed the § 2241 petition as moot. Scott filed a

timely appeal.

       Our review of the District Court’s decision to dismiss Scott’s § 2241 petition is

plenary. See Cradle v. U.S. ex rel. Miner, 290 F.3d 536, 538 (3d Cir. 2002).

       “An incarcerated convict’s (or a parolee’s) challenge to the validity of his

conviction always satisfies the case-or-controversy requirement, because the incarceration

(or the restriction imposed by the terms of the parole) constitutes a concrete injury,

caused by the conviction and redressable by invalidation of the conviction. Once the

convict’s sentence has expired, however, 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

                                              3
defendant enjoys a presumption of collateral consequences when he challenges his

criminal conviction, or both his criminal conviction and his sentence while he is serving a

term of parole, probation or supervised release.” United States v. Jackson, 523 F.3d 234,

241 (3d Cir. 2008). But, “[a] defendant who is serving a term of supervised release and

challenges only his completed sentence of imprisonment must show collateral

consequences.” Id. Here, Scott’s claim goes to the execution of the sentence of

imprisonment that he has since completed. Thus, Scott’s suit became moot upon his

release 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

       In his § 2241 petition, Scott challenged the loss of 190 days of good conduct time

imposed as a disciplinary sanction. If relief had been granted while Scott was still serving

his term of imprisonment, it would have hastened his release by 190 days. By the time

the District Court had rendered its decision, however, Scott’s term of imprisonment 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”).

Scott remained in custody as a pre-trial detainee awaiting sentencing in two criminal

cases pending in the Eastern District of New York. The question the District Court had to

resolve was whether Scott had pointed to any continuing, concrete, “collateral

consequence” from the prison disciplinary action and forfeiture of good conduct time that

would be redressable by a favorable judicial decision. The collateral consequences that

                                             4
Scott asserted were based primarily on the impact of the loss of good conduct time on his

imminent sentencing and future incarceration in New York. The District Court dismissed

the petition as moot. The court adopted the Magistrate Judge’s conclusion that, under

United States v. Johnson, 529 U.S. 53 (2000), Scott’s term of supervised release could not

be changed in habeas proceedings and, thus, his petition was not redressable by favorable

judicial relief. The District Court also ruled that it was sheer speculation to presume that

the New York court would sentence Scott to a term of imprisonment some time in the

future.

          Scott argues on appeal that his case is not moot because the restoration of 190 days

of good conduct time would change the expiration date of the sentence he completed. He

claims that, if the Court granted him this relief, he then would be eligible to have the 190

days of excess time served in prison applied to his New York sentence as credit for time

served pursuant to 18 U.S.C. § 3585(b)(2). See Informal Brief at 11; Reply Brief at 2-3.

He maintains that the federal regulations cited by the government, 28 C.F.R. §§ 2.35(b)

and 523.2(c), both of which address the effect of good time on a sentence upon an

inmate’s release from imprisonment, are “irrelevant.” Reply Brief at 2.

          Upon thorough review of the record and Scott’s arguments on appeal, we agree

with the District Court that his habeas petition is moot. Because he has served his

complete term of imprisonment, Scott cannot show some concrete and continuing injury

from the loss of good time credits. Good time credits do not function as a commutation

of a sentence. Rather, “the only function of good time credits is to determine when, in the

                                                5
absence of parole, the prisoner is to be conditionally released on supervision. Once an

offender is conditionally released from imprisonment, . . . the good time earned during

that period is of no further effect.” 28 C.F.R. §2.35(b); see also 28 C.F.R. § 523.2(c)

(“Once an inmate is conditionally released from imprisonment, either by parole, including

special parole, or mandatory release, the good time earned (extra or statutory) during that

period of imprisonment is of no further effect.”). Thus, Scott’s claim is not redressable

by a favorable judicial decision. Scott’s assertion that the disciplinary action may

adversely affect his future classification and his movement through the prison system is

too speculative to demonstrate collateral consequences.

       Accordingly, we will affirm the District Court’s judgment. Scott’s motion for a

stay of the appeal is denied.




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