Spencer v. Kemna

PETITIONER:Spencer
RESPONDENT:Kemna
LOCATION:Randon Bragdon’s Dental Office

DOCKET NO.: 96-7171
DECIDED BY: Rehnquist Court (1986-2005)
LOWER COURT: United States Court of Appeals for the Eighth Circuit

CITATION: 523 US 1 (1998)
ARGUED: Nov 12, 1997
DECIDED: Mar 03, 1998

ADVOCATES:
James R. Layton – Argued the cause for the respondents
John W. Simon – Argued the cause for the petitioner

Facts of the case

In 1990, Randy G. Spencer began serving concurrent three-year sentences for convictions of felony stealing and burglary. In 1992, Spencer was released, but later that year his parole was revoked and he was returned to prison. Seeking to invalidate his parole revocation, Spencer filed unsuccessful habeas petitions in state court. Spencer then filed a federal habeas petition, alleging that he had not received due process in the parole revocation proceedings. In 1993, Spencer was re-released on parole before the District Court addressed the merits of his habeas petition. Subsequently, the court dismissed Spencer’s petition as moot. The Court of Appeals affirmed.

Question

May prison inmates challenge the revocation of their parole after they are re-released on parole?

William H. Rehnquist:

We’ll hear argument now in Number 96-7171, Randy G. Spencer v. Mike Kemna.

Mr. Simon.

John W. Simon:

Mr. Chief Justice, and may it please the Court:–

In September 1992 the State of Missouri revoked Randy Spencer’s parole on the basis of the Board of Probation and Parole’s finding that he had committed forcible rape, armed criminal action, and possession of crack cocaine.

After exhausting his State remedies, Spencer filed a Federal habeas corpus action asserting Federal constitutional violations concerning this revocation which would, if recognized, have required the court to hold it invalid.

About 4 months after Spencer filed his petition, the State released him on parole again for good behavior, but without expunging the order of revocation or abandoning its finding that he was guilty of these three serious felonies.

Nearly 2-1/2 years after he filed his petition, the district court dismissed it as moot.

In conflict with the decisions of every other United States court of appeals that had then issued a published opinion dealing with the subject, the court below affirmed the district court’s dismissal.

An official governmental finding that one is guilty of forcible rape, armed criminal action, and possession of crack cocaine has collateral consequences like those of a criminal conviction per se.

Stephen G. Breyer:

It does?

I thought that if you’re convicted of a crime, A, then under the guidelines in many States when you’re convicted of crime B your sentence automatically goes up, and I thought that wasn’t true here, that if your parole is revoked there is no guideline or statute that says you get an increased sentence because of a parole revocation, though of course they could give you an increased sentence on the basis of that for which the parole was revoked.

John W. Simon:

Justice Breyer–

Stephen G. Breyer:

Am I wrong, because… yes.

John W. Simon:

–Justice Breyer, I’ve two responses to that.

The first is that although it is not automatic in the case, it is not automatic that under the guidelines you would get it… you would get a higher sentence solely on the basis of the parole revocation, the parole revocation can force one’s offense into the 15-year window–

Stephen G. Breyer:

I thought… am I not… what I was saying is, I thought that that which does it is not the parole revocation, it is that for which the parole was revoked.

In other words, the defendant would always have a chance to say, but I didn’t do this thing, I didn’t commit… I didn’t do that for which, and then the parole board or whoever, the court would consider, did he do it or didn’t he do it.

You can’t do that if you’re convicted of a crime.

I just want to know if I’m right.

Is that right or not?

John W. Simon:

–I agree with–

Stephen G. Breyer:

Tell me if I’m–

John W. Simon:

–I agree with what you’re saying, Justice Breyer, but in Sibron this Court… this Court considered that question in respect to criminal convictions–

Stephen G. Breyer:

–All right, but I mean, the first part was, is that right, and then if I’m right, then why… then you’re going to explain why it doesn’t matter.

Go ahead.

John W. Simon:

–Well… yes.

Thank you, Your Honor.

You are right.

You are right in that the parole revocation does not have exactly the same effect under the Sentencing Guidelines as a criminal conviction.

However, to put the burden on the petitioner and then defendant in the… under the guidelines of impeaching the parole revocation years after the fact has the same things wrong with it that it would have in the Sibron situation, where this Court said that we shouldn’t require people to come in years after the fact when they have proceeded to litigate the claims under the rules as Sibron and Randy Spencer have done.

William H. Rehnquist:

But in Lane v. Williams we said that the same factors don’t apply, that the parole revocation situation not becoming moot, we limited Sibron to say what it said, the legal consequences, and said that some of the other consequences that you’re talking about did not prevent it from becoming moot.

You really… we must modify or abandon Lane v. Williams for you to prevail, must we not?

John W. Simon:

Certainly not abandon, Mr. Chief Justice.

William H. Rehnquist:

But considerably cut back on it.

John W. Simon:

I’m not even sure of that, Mr. Chief Justice.

Lane is distinguishable on numerous grounds.

The prisoners there neither challenged their parole revocations nor sought relief, nor put the consequences of those revocations at issue by seeking expungement of their records.

The target in Lane was the guilty plea way back when, not the parole revocation.

They were seeking relief from what they contended to be an involuntary guilty plea.

If–

William H. Rehnquist:

But didn’t we say in Lane that consequences… we’re talking about whether something becomes moot.

The consequences that didn’t have the same effect as statutory consequences would not be regarded as keeping a case from being moot.

John W. Simon:

–Correct, Your Honor.

However, things have changed since Lane.

William H. Rehnquist:

What has changed?

John W. Simon:

Well, first of all the Court’s doctrine on that has changed, because in Evitts the Court added–

William H. Rehnquist:

That was a footnote in… on a point that wasn’t even argued.

John W. Simon:

–Well, Your Honor, I believe… well now, of course, Your Honor, I wouldn’t know whether it was argued.

The Court would know that.

William H. Rehnquist:

Well, you can tell whether… just from the way it’s put in a footnote you can tell it wasn’t argued.

John W. Simon:

Your Honor, the material that is most damaging to my client in Lane is also in a footnote.

The question is what the Court held in Lane and in Evitts, rather than the typography of where the points appeared and in Lane, the question that my client is asking the Court to decide, this wasn’t before the Court, because in Lane the prisoners did not argue that the State of Illinois had violated their Federal constitutional rights as explained in Morrissey and Gagnon.

The target was just different, Your Honor.

I know the language is there, but not only were the facts different in Lane and the procedural posture was different, but Lane predated Evitts’ addition of sentence enhancement and testimonial impeachment to the list of collateral consequences and, furthermore, one of the things the Court relied on in Lane, as far as the reader can tell, is the speculative nature of what was going to happen.

And it’s my position, Your Honor, that the consequences of that, of a parole revocation, especially a serious one like this, one sex offense, one weapons offense, one drug offense, the consequences of these are far more powerful–

William H. Rehnquist:

Well, are you saying then that whether or not a case has become moot may depend upon the seriousness of the charges in the parole revocation?

John W. Simon:

–Only if the Court chooses to apply Sibron to parole revocations, Your Honor.

If the Court goes on a case by case basis and just says, well, in this case it’s forcible rape, armed criminal action, and possession of crack cocaine, well, we’re going to hold that it’s not moot, if the Court feels that that would be unmanageable because courts would have to decide it on a case by case basis, the Court could apply the Sibron presumption.

My client wins either way because of the grossly stigmatic characteristics of the felonies that he’s been found guilty of without a trial.

David H. Souter:

Well, Mr. Simon, as I understand it, you’re concerned about the stigma as it would apply at the point of a subsequent parole revocation.

David H. Souter:

I would suppose that the stigma that you refer to would be far more powerful at the point of a subsequent decision to parole in the first place, and yet that does not seem to be your concern.

Why does the stigma become greater when he has been paroled and the question is, will parole be revoked, than it was, or seems to be on your calculus, at the point at which he would be subject to parole?

John W. Simon:

Your Honor, we have been a little more soft spoken about the parole consequences per se, but we have never abandoned them, and they–

David H. Souter:

Did you argue them in the… I thought your argument on the circuit was that the adverse consequences that you’re concerned about are adverse consequences at the point of a later parole revocation.

Was I… am I wrong about that?

John W. Simon:

–I… Your Honor, I am not sure about where the focus of it was, except that in the Eighth Circuit the focus was on the parole consequences as… and to the exclusion, I will concede, of later consequences such as sentence enhancement.

David H. Souter:

Let me ask you a different question, if I may.

It goes back to what Justice Breyer began with.

I take it you accept the fact that at a later parole revocation hearing, at least, you could indeed argue and present evidence to the effect that the underlying conduct that was assumed in this revocation in fact didn’t take place.

John W. Simon:

Yes.

David H. Souter:

You could be heard on that.

John W. Simon:

Yes, Your Honor.

David H. Souter:

Is it also the case… do you assume that you could also make this argument: you may not consider the fact of the earlier parole revocation as such independently of the underlying conduct, because I was doing my best, I had done my best to litigate that by means of habeas at the time I was released, and therefore the habeas issue became moot and I could never go to judgment, so therefore you shall not consider, you must not consider the parole revocation as such.

That argument would be open to you, and… wouldn’t it, and wouldn’t it be successful?

John W. Simon:

Your Honor, if I were representing Mr. Spencer on that hypothetical case I would certainly make the argument that you’re suggesting, Justice Souter.

However, I think that Occam’s razor would tell us that we should recognize collateral consequences before we require counsel or particularly the pro se parole candidate to make an argument that intricate, and I agree that it is an intricate argument that a resourceful counsel who is sitting here with us today would make.

Ruth Bader Ginsburg:

Mr. Simon, may I just clarify one thing?

I thought that you were making the point in connection with your client that it wasn’t that they’d let him out at parole and then it would only be… the question would be to put him back.

I thought you were talking about the reduction of his chances now to be paroled when you called our attention to the guideline in Missouri that says, will they let him out now on parole when he’s due?

Not if there appears… there does not appear to be a reasonable probability that he would live and remain at liberty without violating the law, so I thought you were talking about the reduction of his chances of being paroled.

John W. Simon:

Justice Ginsburg, the guideline that you’re quoting is from the Missouri sentencing guidelines rather than their parole guidelines.

We acknowledge that it’s discretionary with the board how much weight the board should give to this parole revocation in the board’s decision, but I believe that what the Court was just quoting was a document for the use of Missouri courts in passing sentences.

Anthony M. Kennedy:

It says… can we take the case, then, that there’s not a single statute which attaches adverse consequences to parole revocation in and of itself.

John W. Simon:

No, Your Honor, we can’t–

Anthony M. Kennedy:

Or am I wrong about that?

John W. Simon:

–We can’t take that because of the 15-year window under the Federal Sentencing Guidelines.

Anthony M. Kennedy:

No, there’s… I’m sorry.

Is… that’s what I was wondering.

There’s something in the Federal Sentencing Guidelines that says parole revocation itself makes a difference?

In and of itself.

John W. Simon:

Well, it’s… I guess it depends on what we mean by in and of itself.

Anthony M. Kennedy:

No–

John W. Simon:

Consequences.

Stephen G. Breyer:

–What I mean by this is the following, and I think maybe Justice Kennedy means the same.

If you have a prior conviction and then you come up for sentencing again, that’s it, you know.

You get a bump up.

You go into another column, or you get an… that… all that the judge will look to is, is there another conviction?

I mean, that’s basically the rule.

John W. Simon:

You can’t attack it anyway?

Stephen G. Breyer:

Well, I don’t know.

That’s why I hesitated, because there may be certain things you could attack.

John W. Simon:

No counsel, for example.

Stephen G. Breyer:

Yes.

Yes, that’s right, exactly.

But now, parole revocation I thought was different.

That’s why I started with this, that there is nothing that the parole revocation in and of itself gives you a bump up for.

Rather, a judge would look at it and say, hmm, his parole’s been revoked.

I wonder… that doesn’t look good to me.

I wonder what that’s for, and then the counsel would argue about it, and they’d say, you know, it wasn’t… et cetera.

You see… I thought… but I wasn’t certain I’m right, and that’s why I started out with this.

John W. Simon:

Well, Justice Breyer, for me to advise you on the kinds of–

Stephen G. Breyer:

No, no.

John W. Simon:

–Sentencing Guidelines–

Stephen G. Breyer:

You’ve read it recently–

John W. Simon:

–is like bringing coals to Newcastle.

Stephen G. Breyer:

–You’ve read it recently with this in mind, and so I raised it because I fear I could be overlooking something, which is why I raised it.

John W. Simon:

Your Honor, the big picture in respect to the Sentencing Guidelines is that before the Sentencing Guidelines were authorized and adopted a Federal sentencing court had virtually unbridled discretion.

5 years to life could mean anything in between.

But under the guidelines, the amount of discretion, the scope of the sentencing judge’s discretion has been cabined, and one of the factors that goes into that at various points is the 15-year window, concerning which it does definitely have an effect and there’s no wriggling out of it.

Sandra Day O’Connor:

15-year window for what?

John W. Simon:

For a previous incarceration, Justice O’Connor.

Sandra Day O’Connor:

For prior offenses.

John W. Simon:

Yes, Your Honor.

Sandra Day O’Connor:

Not parole revocation as such–

John W. Simon:

Not–

Sandra Day O’Connor:

–for prior offenses.

John W. Simon:

–Not as such, Your Honor, but the parole revocation makes a difference in the 15-year window.

But the big picture, members of the court, is that the Sentencing Guidelines have narrowed that window of discretion.

It’s been a sea change in criminal sentencing in the Federal courts, and the parole revocations–

Antonin Scalia:

These all assume that he’s going to commit another crime and be judged again or be up for parole again.

Do we have to assume that?

John W. Simon:

–No, Your Honor, because of the other… because of the other factors.

When… this does not… this argument for collateral consequences, whether as applied to parole revocations or criminal convictions, does not assume that the person is going to go out and commit another crime.

Everything, all of the factors that the Court has relied on in Carafas, in Evitts, wherever the Court has talked about collateral consequences, there is some intervening act, some intervening decision that the person burdened by the collateral consequences must make.

One thing that everyone agrees on as a collateral consequence is jury service.

Whether a person is kept from serving on a jury because he or she is a convicted felon is… depends on whether they’re called for jury duty, whether they come up with some excuse in advance, whether they want to serve on the jury.

That depends on intervening choices.

The right to vote depends on intervening choices.

Antonin Scalia:

Yes, but those are… I’m willing to acknowledge that people have those choices.

I’m not willing to acknowledge that people have a choice whether to commit a crime or not.

I… it seems to me rather weird to say, oh, if I commit another crime I’m going to be subject to these adverse consequences.

It seems to me the proper response to that is, don’t commit another crime.

John W. Simon:

Agreed, Your Honor, and there’s no way that I’m arguing that anyone should commit crimes.

However… however, Your Honor, the same argument would cut against other guarantees of the rights of the accused.

It’s always… when… it would… there would always be an answer to a criminal defendant who seeks to overturn his or her conviction by saying, well, you shouldn’t have committed that crime.

You wouldn’t have a problem of ineffective assistance of counsel if you hadn’t committed the crime.

Antonin Scalia:

I’m not talking about that.

That’s water over the dam.

If the crime’s been committed we’re talking about whether you were tried fairly, but you’re talking about, oh, if I… I’m going to be deprived of, you know, something if I should commit another crime, and I’m not willing to accept the hypothesis.

You should not commit another crime.

Antonin Scalia:

May I ask two questions?

John W. Simon:

Yes, Justice.

John Paul Stevens:

First, isn’t… didn’t… this man actually did commit another crime, didn’t he?

John W. Simon:

He committed a separate crime that is, we would submit, only marginally relevant to what’s going on here.

John Paul Stevens:

Oh, okay.

John W. Simon:

It was… it was attempted stealing, nothing to compare with the serious sexual, violent weapons, drugs felonies that the State has found him guilty of without a trial.

John Paul Stevens:

Let me ask my second question, then.

In the earlier Illinois case the… conceivably if… it would not have been moot if they had asked for another… wanted to replead and stand trial.

Now, supposing in this case the State takes the position well, we’ll admit the procedure was deficient but we do want… since he wants to get it off the record we do want to have a hearing on the merits of the charges.

Would that be possible?

John W. Simon:

I shake hands with Mr. Layton and we go home.

We have our hearing.

John Paul Stevens:

You’d have… but is that conceivable in the way this thing might develop?

John W. Simon:

Theoretically conceivable, Your Honor.

John Paul Stevens:

But under your view what will happen if you win?

That’s what I–

John W. Simon:

Oh, the relief we would ask for, Your Honor, is a remand to the Eighth Circuit for… with instructions to remand to the district court to allow the respondents and the petitioner to litigate the merits of his claims.

Ruth Bader Ginsburg:

–To say that it’s not moot.

John W. Simon:

Yes, Your Honor.

Ruth Bader Ginsburg:

Do you… you said the Sentencing Guidelines regime is new.

Do you put in part of the different picture in distinguishing Lane Heck and Balisok, which wasn’t clear what the 1983 situation was?

In other words, is there a way… 1983 is not available.

John W. Simon:

Mm hmm.

Ruth Bader Ginsburg:

Is there something other than habeas that would enable you to expunge what you say is this unjust blot on the record?

John W. Simon:

Not that I’m aware of, Your Honor.

My client exhausted his State remedies, as he was required to under Preiser v. Rodriguez.

Then he filed his habeas corpus action.

He can’t proceed with a 1983 until his habeas corpus action has been not only litigated but victoriously litigated under Heck and Edwards.

At least as I read the–

Ruth Bader Ginsburg:

There’s no other procedure in Missouri that could be used to expunge this, to get a hearing and to expunge it?

Ruth Bader Ginsburg:

1983 is a Federal remedy, but no State remedy at all to question a parole revocation that you say was without due process?

John W. Simon:

–I believe that his appropriate remedy was… in the State courts was a State habeas petition.

He filed successive petitions in the three levels of Missouri courts and lost and then went to Federal court, and Your Honor, I… if there is another procedure, first of all I’m not aware of it and second, I believe that my friends here from the State would argue that it was not appropriate and that it was a frivolous inmate filing.

So it… Heck… but to go back to your point, Justice Ginsburg, Heck and Edwards are very important to this, because it means that if my client loses on the mootness point and the court, the Federal district court cannot address the merits of this, then he’s boxed out of any Federal remedy at all.

He is simply stuck with this unconstitutional parole violation that brands him as a forcible rapist.

Antonin Scalia:

Well, that was the case for at least a century and a half, wasn’t it?

I mean, you speak as though it is unthinkable that a prisoner should not have a hearing in Federal court on alleged constitutional violation and State proceedings, but our use of habeas corpus for that on a regular basis is relatively recent.

John W. Simon:

Agreed, Your Honor.

The question is whether this Court and Congress, as the two key decisionmakers in this area, want that result to happen, and Congress… Congress, as we all know, has recently revisited habeas… Federal habeas corpus at the… almost simultaneously they revisited 1983 in PILRA, and in… the Congress considered these things very seriously.

They considered them after the majority of the circuits, eight circuits by my count, had held that claims like my client’s were not moot, and they didn’t amend 2254.

Stephen G. Breyer:

Well, they didn’t amend it, but what do you think in the congressional statutes dealing with habeas corpus reflects a congressional desire that there be a hearing in Federal court for every asserted violation of the Federal Constitution in State criminal proceedings, or parole proceedings?

John W. Simon:

Every?

None, Your Honor.

John Paul Stevens:

Okay.

May I ask another question, sort of on the question of mootness?

I gather you do not question the right of the State to retain whatever evidence they have supporting the conclusions that they led to in the parole violations.

John W. Simon:

No, Your Honor.

I think they’d better do that.

John Paul Stevens:

Okay.

So if they have the right to keep the evidence, what if they came in and said, well, the parole violation doesn’t mean anything in terms of, as they basically argued, they said, therefore we’ll take it off the books but we’re going to keep the information in the file.

That would satisfy you.

John W. Simon:

We go home, Your Honor.

John Paul Stevens:

I don’t know why they don’t do that and let you go home, because that’s all they need, it seems to me.

John W. Simon:

Well, Your Honor, the respondents are on the horns of a dilemma, because they’re arguing here that, oh, this is just a parole revocation.

It doesn’t mean anything.

And yet when he comes up for sentencing there’ll be some assistant prosecuting attorney who’s going to be… you know, arguing to the court that he’s the worst thing–

Sandra Day O’Connor:

When he comes up for sentencing on some new crime.

John W. Simon:

–Or, Your Honor, when he is the victim in an automobile accident and has to testify–

William H. Rehnquist:

But that–

John W. Simon:

–to get his medical expenses paid.

Anthony M. Kennedy:

–That invokes Justice Souter’s earlier observation that at that point he says, look, this was an improper revocation, you go from there, and then you said that… I think that’s when you said it was… Occam’s razor applied, because this is more–

John W. Simon:

Parsimonious.

Anthony M. Kennedy:

–I assume because this is more complex.

It seems to me it’s much more… is Occam’s razor a precedent we cited in this Court?

I haven’t seen it recently.

But assuming that it is, it seems to me that Justice Souter’s solution addresses that.

It’s much more simple to wait until there is a specific harm, and then talk about it, as opposed to saying that 1983 is available… or, pardon me, that habeas corpus is available for every parole revocation violation when the custody is terminated.

John W. Simon:

Your Honor, I thought that the Court had crossed that bridge in Sibron, and my question is, if it… if Sibron is right on that point, that we shoot it out closer in time to the transactions and occurrences involved in the case, which is what the respondents normally want to do in collateral attacks, is litigate things closer in time while the witnesses are still alive, they’re still around, the blood samples are fresh, what not, why doesn’t it work when it cuts in the petitioner’s favor?

And as to the… as to litigating it in a civil trial, that… see, they just multiply the number of times–

William H. Rehnquist:

Well, how would it… you say it would come up if he testified in an automobile accident.

Do the Missouri courts allow impeachment of a witness on the ground of his parole was once revoked?

John W. Simon:

–Your Honor, I believe that the two sides have cited all of the Missouri cases on that, and that the… as… they argue one side, we argue the other.

It’s our position that as long as one asks the question correctly, you can get that in, and we’d refer to the Newman and Comstock cases on that.

Sandra Day O’Connor:

May I ask one other question?

John W. Simon:

Please, Justice O’Connor.

Sandra Day O’Connor:

I know your time is almost up, but are you relying at all on any bad faith extension of time in these habeas proceedings that caused the thing to become possibly moot?

John W. Simon:

Well, first of all, Your Honor, in no way are we relying… are we asserting that this man is entitled to relief on account of the delay, only that he’s entitled to a day in court.

We are concerned that this would send a message–

Sandra Day O’Connor:

But are you relying on the fact that the district court acted improperly or in bad faith or anything in extending the time after which he was released?

John W. Simon:

–No, Your Honor, but it does illustrate the risk of leaving the lower court decision intact.

Thank you.

May I reserve–

William H. Rehnquist:

Yes.

Very well, Mr. Simon.

Mr. Layton, we’ll hear from you.

James R. Layton:

Mr. Chief Justice, and may it please the Court:–

After Sibron, Lane, and the footnote in Evitts, we might be able to divide collateral consequences that are alleged to defeat mootness into three categories.

The first are those that are current civil disabilities, those that led to the decision in Sibron… can’t vote, can’t serve on a jury, those kinds of things.

A second category are the ones that were addressed in Lane, things that are discretionary that we can’t know now, for example, whether a past parole revocation may have some impact on a future parole request, or, to take that to its ultimate, where the Ninth Circuit has said that perhaps a sufficient collateral consequence is how this revocation might affect someone’s chances of employment in the future.

Ruth Bader Ginsburg:

Mr. Layton, maybe I misremember Sibron, but I thought, unlike the first case, Carafas, or whatever, which dealt with only present disability, Sibron did speak about future problems as a result of the conviction, like being impeached as a witness.

James R. Layton:

It did speak of those.

However, all of the precedents that Sibron cited to support the premise that it could draw a line beyond which there is a presumption against mootness were felony cases.

Every one of those is a case that involves current civil disability, so Sibron is not clear as to what it means in terms of what kind of disability today would be sufficient, but the tenor of Sibron is there is a conviction, and in our society we presume when there is a conviction that there are some effects today, as opposed to other kinds of things that may happen to someone as a result of our judicial system.

A third category of alleged collateral consequences are those that are contingent on some future event, although they may not be discretionary after the contingency occurs, and that leads us to the question of the Federal Sentencing Guidelines that Justice Breyer was asking about at the beginning of Mr. Simon’s presentation, and that are addressed for the first time in this respect in the reply brief on the merits.

There is in the Federal Sentencing Guidelines a provision that says, we will give points in criminal history for all of the convictions where the incarceration comes within the last 15 years, and by revoking Mr. Spencer’s parole, Mr. Spencer… the time of Mr. Spencer’s conviction or his incarceration was extended.

So if Mr. Spencer is convicted of a crime between April 16, 2007 and August 7, 2008, then the Federal Guidelines would be affected by this parole revocation, but not otherwise, and I think that shows the difficult position that Mr. Spencer asks this Court to take, that we assume that it is enough to defeat mootness today that he may commit a crime during a relatively brief period in the next century, and yet that’s the position that he’s taken, that the Ninth Circuit has taken, that that kind of sentence enhancement is sufficient.

The consequences Mr. Spencer alleges fall within three general categories, that it may affect a future parole decision… what was addressed in Lane, and which is an entirely discretionary decision under Missouri law… whether it would affect him at trial through impeachment or perhaps a presentation of evidence under Federal Rule of Evidence 413, or whether it would affect his sentencing.

And then comes the question of the 1983 action, which doesn’t really fit in any of these categories of collateral consequences, because his loss of a 1983 claim is not the result of the parole revocation.

It’s not the result of the hearing about which he complains.

It’s the result of his failure to obtain a successful decision in his habeas, or a State or a Federal habeas, and I think there are three reasons why the Court should resist the urge of Mr. Spencer to adopt the position that a 1983 claim, or a loss of the 1983 claim would be enough to defeat mootness.

The first is that it is too far removed from the question at hand, which is the parole revocation.

The second is that–

Ruth Bader Ginsburg:

I’m not sure I follow that, because isn’t it as a practical matter, given that when you’re put back in, parole is revoked, it’s not for a very long time, and almost in every case you couldn’t get through the whole process.

You have to go three tiers in the State and then go into the Federal, so these things are bound to be moot, aren’t they, because even… you’re talking here about district court delay, but that wouldn’t be enough.

You’d have to go… Lane didn’t become moot till it was in this Court, right?

James R. Layton:

–I think these things are bound to become moot, and I think that the problem Mr. Spencer has where he suggests that he is unusual somehow in losing a 1983 claim is… well, let’s present a hypothetical about Mr. Spencer.

Let’s suppose that his State remedies were not exhausted until the day after he was reparoled.

He wouldn’t have a 1983 claim, not because of anything the State had done, but because it just took a while for that process to happen.

And yet he suggests here the Court ought to announce a new rule that because of the timing of his case, somehow, if we have a 1983 claim it will be lost, the case is no longer moot.

Now, one of the things that that does is, it would… to adopt that would endorse the position that Mr. Spencer can come before this Court and raise that issue for the first time.

In his brief he wonders how the Eighth Circuit, with its own precedent of Leonard v. Nix, could have reached the decision that it did, given the… a loss of a 1983 cause of action.

Well, the reason is because he never raised the question of a 1983 cause of action in the Eighth Circuit, and so for this Court to adopt that would be to endorse the premise that all of these collateral consequences save one, which were raised for the first time in this Court… in fact, for the first time generally in the reply to the cert petition… that that’s the way that someone should operate.

You can do these things late.

I think the third reason why the Court should not adopt the premise that a 198… loss of a 1983 cause of action is sufficient to prevent mootness is that that would in effect move the Sibron presumption from just covering habeas petitions that challenge convictions to covering essentially all habeas petitions, because what habeas petitioner, if the Court were to so rule, is going to resist the urge to say, oh, I have a 1983 cause of action, and so, judge, you can’t dismiss my case.

Sandra Day O’Connor:

Let me ask you something, Mr. Layton.

Is there any other procedure in Missouri whereby the prisoner could get some kind of declaratory judgment or any other relief finding that he was denied any hearing on these charges?

James R. Layton:

Perhaps not, Justice O’Connor.

The appropriate method would have been through a petition for a writ of habeas corpus, which he pursued.

It may be possible for him to enter into, or attempt a petition for a writ of mandamus, or a declaratory judgment action, but we know of no instance in which a person in his situation has attempted that.

Sandra Day O’Connor:

So he just can’t get it litigated.

James R. Layton:

He cannot get it litigated in the context of this case.

Sandra Day O’Connor:

Well–

–And does that mean, do you think, that prison authorities would be essentially not constrained about taking arbitrary action against a prisoner near the end of the prison term because the whole thing’s going to become moot, or in connection with any parole revocation because it’s likely to become moot?

James R. Layton:

No.

The–

Sandra Day O’Connor:

What are the constraints, if you’re right, and we have some bright line rule here?

James R. Layton:

–Section 1983 provides a constraint.

It just doesn’t–

Sandra Day O’Connor:

Well, but he’s going to lose any right to recover in 1983 because he can’t get a successful habeas conclusion.

James R. Layton:

–Well, he loses his 1983 claim.

Sandra Day O’Connor:

Yes.

James R. Layton:

But if the State had a policy or program or practice of doing what Your Honor says, then he would… could have a 1983 claim to stop that practice, not to question his own determination, but to stop that practice, and he would have an incentive to do that, since he’s already incarcerated again, and although he’s been given a new parole date on his new sentence, he has yet to be paroled, and so he could do that.

William H. Rehnquist:

Mr. Layton, what about the State challenges on State habeas?

Is it possible to tell from the dispositions of those cases whether the Missouri courts passed on the merits of his claim?

James R. Layton:

In each instance the petition was denied without explanation, and so it is impossible to do more than assume that they were ruling on the merits, with the possible exception of the intermediate court, where he used the wrong writ, although the Missouri practice is, even when a lawyer presents the wrong writ, is to simply assume that the lawyer intended a different writ.

William H. Rehnquist:

Is it possible… is it typical in a Missouri habeas proceeding if the… say the habeas court expressed a view on the merits, to simply deny it, rather than say it’s… write it out?

James R. Layton:

It is very unusual in Missouri practice for the denial of any writ to come with an opinion.

In fact, I have yet to see that in my own experience.

John Paul Stevens:

May I ask a… probably kind of a stupid question, I must admit, but you’re arguing that this… the harm to him is so trivial that the case is moot.

I suppose the benefit to the State must be fairly minimal also.

James R. Layton:

I don’t know that that is a stupid question, because it’s something that I’ve considered carefully.

In Pennsylvania v. Mims, where the question before this Court was also mootness, but mootness where the State wanted to continue litigating the case, the Court said that it was… well, the… Justice Marshall in a sense said it was barely not moot because the State had an interest in some future sentencing.

Here we aren’t even to that point.

It’s hard to imagine what great incentive there is going to be for the parole board if Mr. Spencer is now before the board and has been told the board is to give him a new hearing.

Why does the board care whether they give him a new hearing or not at this point?

He’s already served on his revocation.

John Paul Stevens:

And if the problem arises in a future proceeding you… everybody agrees you can save the evidence and save… just as you save charges that are made against people that are never disposed of.

You keep them in the file so you know what’s… what accusations have been made.

I mean, I… it just doesn’t seem to me the world turns on the outcome of this case, and if you… even if you should lose, it seems to me the cost to the State is pretty minimal.

You’re just say whenever one of these people file these out of… you know, these old cases, we’ll just say, okay, we’ll expunge the record, we’ll keep the… but we’re going to keep the evidence.

James R. Layton:

Well, I think that that is–

John Paul Stevens:

That doesn’t seem to me that would hurt you very much.

James R. Layton:

–I think that would be true if all cases were like Mr. Spencer’s, but of course, if this Court announces a rule that extends the breadth of collateral consequences, then we will be litigating more cases further in the district courts and the courts of appeals, and that is our difficulty here, is not so much what our disagreement is with Mr. Spencer, as where we would be if this Court announced a different rule.

In fact, I doubt that with Mr. Spencer the… this would have any impact at all.

It’s notable that Mr. Spencer at no point through the process of the parole hearings denied possession of cocaine, and twice before, since the time he’d first left prison, he’d been found with cocaine, and so it’s unlikely that he would… his parole revocation would be any different even if he were limited–

Ruth Bader Ginsburg:

But there was a very serious charge there of rape, which he vehemently denied.

James R. Layton:

–Yes.

Yes, he did deny that.

He… at the original interview he admitted to consensual sex, but denied that it was rape.

He admitted to pushing the woman down, but denied it was rape.

Ruth Bader Ginsburg:

The problem that I have is that… let’s take the worst case.

Let’s say that parole revocation is based on a confession that the defendant made because the prison guard put him on the rack.

Even so, you say that doesn’t matter.

He has his chance to go to the State court.

They just denied it without giving a reason.

His time ran out while he was on the Federal side, so too bad, this process that so severely violated due process it’s a wash.

He has no chance to be vindicated.

James R. Layton:

That is the result of the Court’s holding in Heck v. Humphrey.

Not the result of the holding here, but in Heck v. Humphrey.

Because as I said before, Mr. Spencer would be in the same situation under Heck v. Humphrey if he couldn’t complete his State remedies… if he couldn’t complete his State remedies by the time he filed a Federal habeas, then he couldn’t assert a cause of action in the hypothetical that Your Honor poses regardless of how the Court rules here, so there would still be people in that situation, unable to obtain a Federal forum in which to litigate their claim.

Stephen G. Breyer:

So one possible thing would have been in your view to say it’s moot… to bring this you have to be in custody.

James R. Layton:

Yes.

Stephen G. Breyer:

It’s a… all right.

So we’re only talking about the cases where the prisoner was in custody when he brings it but he’s released before he’s finished.

So in those cases it would be rational to do one of two things.

You could say, the habeas is over.

He’s no longer in custody.

But if he thinks he was hurt, he could bring a 1983 action.

Or alternatively you could say, well, you don’t have to… you can’t bring a 1983 action, but… if you’re hurt… even if you’re hurt, but you can keep pursuing the one you started.

James R. Layton:

Those are both logical, but the third–

Stephen G. Breyer:

But now where we are is, if we agree with you here we are saying you can’t do either.

James R. Layton:

–That’s right.

Stephen G. Breyer:

All right.

Now–

James R. Layton:

I think that’s–

Stephen G. Breyer:

–Now if… and starting afresh… let’s start absolutely afresh, which is pretty close to where I am.

I read the statute, and it says that in a habeas case you must be in custody, and then you can ask for such relief as law and justice require.

James R. Layton:

–Yes.

Stephen G. Breyer:

Is that right?

James R. Layton:

Yes.

Stephen G. Breyer:

All right.

So now we know at least in some instances he doesn’t really have to be in custody.

He just has to have been in custody when he… that’s clear.

James R. Layton:

That’s the way that the statute–

Stephen G. Breyer:

All right.

So now he says how could it be moot under the Constitution of the United States, because I was in custody.

That’s good enough to start this thing, and I would like such relief as law and justice require.

Namely, in my case, law and justice require a hearing, after which there will be an expunging of the record.

That’s what he wants.

That’s the relief.

James R. Layton:

–But the–

Stephen G. Breyer:

I mean, that’s what he’s asking for.

He’s asking for that relief.

He says of course it’s not moot.

I haven’t got the relief I want.

That’s the relief I want.

James R. Layton:

–But to say–

Stephen G. Breyer:

And all we’re debating about is whether he should want it.

He says that’s up to me.

James R. Layton:

–The same–

Stephen G. Breyer:

Or, unless you say… there’s one other little part to this, because I… you’ll say… maybe you could say, well, the relief he wants under the circumstances is outside the statute.

James R. Layton:

–I believe it is.

I… the same kind of situation–

Stephen G. Breyer:

Oh, I didn’t mean for you to jump there yet–

James R. Layton:

–Okay–

Stephen G. Breyer:

–because I was saying… two parts… one is, why would the Constitution stop him from getting the relief he wants?

He hasn’t got it.

James R. Layton:

–Well, I don’t know that the–

Stephen G. Breyer:

Then the statutory part.

James R. Layton:

–I don’t know that the Constitution does stop him from getting the relief he wants.

The question here is not his constitutional right but his statutory right, either under the habeas statute or 1983, and so this Court has interpreted 1983 not to give relief to someone in this man’s situation, and so it’s not a constitutional right–

Stephen G. Breyer:

What we’re doing here, and it’s really… mootness is an odd word to use.

We’re saying that given the change in circumstance… maybe it’s the right word, but given the change in circumstance, the relief he wants is outside the phrase I quoted in the statute.

James R. Layton:

–Correct.

Stephen G. Breyer:

It couldn’t be relief that law and justice requires, and the reason it couldn’t be is because too little turns on it.

James R. Layton:

Yes.

Stephen G. Breyer:

That’s your argument.

Or you could say that he’s no longer in custody.

James R. Layton:

Yes, you could take that approach.

Stephen G. Breyer:

No… well, we… how can we say that if, in fact, in other cases we’ve said that a person who is no longer in custody can bring it?

James R. Layton:

I think that Justice Breyer presents the problem.

William H. Rehnquist:

Yes.

Yes, if one goes back to the… if one wants to analyze it by the statute, according to Justice Breyer, one would never have decided Carafas or Sibron the way they did.

James R. Layton:

It’s certainly possible to go to where Justice Thomas led in, I believe it’s the Heck decision, and not have any of these problems, but we aren’t there today, and today we’re in the presence of the Lane decision that says that when the future consequences are discretionary, when they’re speculative, when they require certain intervening steps before there’s some kind of relief, that we aren’t going to recognize that the case continues after custody in those situations.

So the Court doesn’t have to go nearly that far in order to reach the conclusion that it ought to reach today.

John Paul Stevens:

Of course, in Lane we in effect said that if he had… they had asked for relief this man asked for it would not have been moot.

James R. Layton:

Well, I’m not sure of that.

I think that the Lane… that at least the way I read the decision the… what you… the Court was suggesting was that they’d asked about the original conviction, and so–

John Paul Stevens:

They were asking for in effect an enforcement of the plea, specific enforcement of the plea bargain.

James R. Layton:

–Yes.

John Paul Stevens:

Which we–

James R. Layton:

If… if we treat the parole revocation as the direct equivalent of a conviction, then that’s correct, but we haven’t treated parole revocations as the direct equivalent of convictions, and I think the reasons have come out this afternoon, that they don’t come accompanied by the same kind of consequences, at least under Missouri law.

Now, it may be that we would be in a different situation if we were in a State such as, I believe New Hampshire, where after you’ve been revoked once, you never can get parole again, but we aren’t in that situation.

All of these kind of disabilities or consequences that we’re talking about are remote and contingent.

Ruth Bader Ginsburg:

–Mr. Layton, the most recent expression of this Court on this mootness is a case called Minnesota v. Dickerson, and I was surprised that neither brief cited that.

That seems to favor the petitioner here.

I… do you know what… it’s at 508 U.S. at page 371, footnote 2.

James R. Layton:

Well–

Stephen G. Breyer:

It’s that long footnote.

James R. Layton:

–I know the footnote.

I will confess that I have studied it, but I am not at the moment recalling exactly why I didn’t think that I would read it in the petitioner’s favor.

It certainly does follow along from Sibron, Lane, and Evitts, but I don’t think would read to… could be read fairly to hold in petitioner’s favor here.

Ruth Bader Ginsburg:

It wasn’t… it was a case where there was a diversionary sentencing statute so that there was no conviction on the record.

James R. Layton:

That’s right, and there was a reference in the case to collateral legal consequences, and they were of the sort that are contingent in my three part classification that is–

Ruth Bader Ginsburg:

Yes, because the original criminal charges, as I understand that case, were dismissed.

James R. Layton:

–I believe that that is right, although the dismissal itself I think is at issue there.

I don’t think that it comes up under habeas, and so it doesn’t incur the habeas problems that we have here, but–

John Paul Stevens:

And that was a case I think in which it was the petitioner that was seeking to have it dismissed as moot, rather than the State.

James R. Layton:

–That may be, plus the Minnesota statute said that a conviction after a successful probation, although not a conviction for future purposes, can be used in calculating a criminal history category under Minnesota law, but there’s nothing in that decision to suggest that the same would be true even under Minnesota law for a parole revocation.

Again, it addresses a conviction and not a parole revocation, and that becomes a critical distinction as long as we attach to convictions certain mandatory civil disabilities or consequences.

If there are no further questions, I thank the Court.

William H. Rehnquist:

Thank you, Mr. Layton.

Mr. Simon, you have 4 minutes remaining.

John W. Simon:

Thank you, Your Honor.

First, I would like to say that the petitioner agrees with the respondent that the question here is statutory and not constitutional, that it’s well established in the decisions of this Court, acquiesced in by years of congressional revision, coupled with inaction, that a person must be in custody when he or she files a petition but that once that is filed, the court may reach the merits of that after they have been released or even completely discharged.

In respect to the Minnesota decision, members of the court, the petitioner owns that decision and did not feel a need to cite it with specificity by virtue of a reference I believe I made in the reply brief to the cases relied on by the amici.

Ruth Bader Ginsburg:

But you didn’t cite it, so that suggested to me you didn’t think it was… if it was in your favor, that it was strongly in your favor.

John W. Simon:

I’m sorry if I didn’t cite it expressly, Your Honor, but we would own it.

Now, it would allow… it referred to use of adjudications in future proceedings.

It was rather broad, but we do see it as buttressing our position.

John W. Simon:

Now, with respect to the petitioner’s denial of his drug use, I would refer the Court to pages 89 and 90 of the joint appendix, paragraphs 33 and 34.

These are not written with great articulateness, but I interpret these as denying the drug use and disagreeing with the interviewing officer to the effect that the petitioner had admitted the drug use.

So we have hearsay within hearsay from the parole officer saying that the petitioner admitted the drug use.

Now–

William H. Rehnquist:

You’re not saying that wouldn’t be admissible in a revocation hearing, are you?

John W. Simon:

–Mr. Chief Justice, hearsay is, of course, admissible in parole revocation proceedings.

We don’t deny it, but that illustrates the slender thread on which this revocation hangs.

Now, the respondents have presented many arguments about how this parole revocation isn’t very serious, how this parole revocation for forcible rape, armed criminal action, and possession of crack cocaine isn’t very serious, and on some of them I have to agree that they’ve scored on some of these points in respect to this particular petitioner, and I’m not telling this Court that every single reason why a criminal conviction remains live after release applies to a parole revocation, at least as to Randy Spencer.

But if one looks at the big picture, it is just absolutely unrealistic, bordering on disingenuous, to say that a parole revocation by the State of Missouri for three serious felonies doesn’t matter, that it doesn’t give the person affected by it a substantial stake, that gives him the incentive to litigate it zealously.

In Missouri we like to ask questions on voir dire, if there’s any member of the panel that does not have common sense.

No one raises their hands, and so you say, well, Judge Bandry is going to instruct you in a few minutes, that you just need to apply your common sense in this case.

I think that if the Court looks at the damage that this does to this man’s future in terms of testimonial impeachment–

William H. Rehnquist:

Thank you, Mr. Simon.

The case is submitted.

The honorable court is now adjourned until Monday next at ten o’clock.