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Deportation Moots Federal Habeas Appeal

The Court of Appeals for the Seventh Circuit has ruled that deportation, during the appeal from the denial of a petition for a writ of habeas corpus by a state prisoner, moots the appeal.

Fabio Diaz, a citizen of the Dominican Republic, was an Indiana state prisoner. During his incarceration, Diaz lost 180 days of good time due to an alleged disciplinary offense. Diaz challenged the prison disciplinary proceedings via federal habeas corpus. The federal district court denied relief and Diaz appealed. During the pendency of the appeal, Diaz was deported to the Dominican Republic.

Previously, in Bryan v. Duckworth, 88 F.3d 431 (7th Cir. 1996), the Seventh Circuit had extended the rule of Sibron v. New York, 392 U.S. 40 (1968) to prison disciplinary cases. This allows habeas corpus petitions to remain active after the prisoner is released if there is the possibility that the conviction will have adverse future collateral consequences. However, since Bryan, the Supreme Court decided Spencer v. Kemna, 118 S.Ct. 978 (1998), [ PLN , Aug, 1998], holding that the possible future effects of a parole revocation were too speculative to prevent mootness of his federal habeas corpus action after he had been released from the imprisonment resulting from the revocation. In Spencer, the Supreme Court voiced its displeasure with Sibron and the cases leading up to it, indicating that the adverse collateral consequences it envisioned were statutory disabilities, such as the loss of the right to vote or own a gun. Consequences caused by the future illegal conduct of the prisoner were not to be included.

Although the Seventh Circuit admits that the American criminal justice system is less than perfect and prisoners do get convicted of crimes they didn't commit, it ruled that the possibility of future innocent conviction was too remote when the prisoner has been deported to prevent mootness of the prisoner's habeas corpus action. Certainty of adverse collateral consequences is not required, but a remote possibility is not enough to prevent mootness. Therefore, in this case, Diaz's habeas corpus petition was moot.

The Seventh Circuit ordered the case remanded to the district court with instructions to vacate the judgment and dismiss the petition. Such a dismissal does not address the merits and Diaz might be able to refile the petition at a future date, if necessary. Furthermore, a petitioner whose petition is dismissed similarly as moot might be able to legitimately refile once adverse collateral consequences occur. See: Diaz v. Duckworth, 143 F.3d 345 (7th Cir. 1998).

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Related legal case

Diaz v. Duckworth

Diaz v. Duckworth, 143 F.3d 345 (7th Cir. 05/04/1998)

[1] U.S. Court of Appeals, Seventh Circuit

[2] No. 96-2630

[4] May 04, 1998


[6] Appeal from the United States District Court for the Northern District of Indiana, South Bend Division. No. 95 C 856 Allen Sharp, Judge.

[7] Before Posner, Chief Judge, and Cummings and Kanne, Circuit Judges.

[8] The opinion of the court was delivered by: Posner, Chief Judge.

[9] Argued March 31, 1998

[10] Fabio Diaz was an inmate of an Indiana state prison (probably for a drug offense, although the record is unclear) when he instituted this action, claiming that he had been subjected to prison discipline in violation of his right to due process of law. The prison authorities had found that he had violated a rule of the prison forbidding inmates to use or possess drugs, and had "sentenced" him to (among other things) a loss of 180 days of good-time credit. The district court found no violation of due process, and so denied relief. Diaz appealed, and while the appeal was pending was deported to the Dominican Republic, where so far as we know he remains. The first and last question we decide is whether his deportation moots his appeal.

[11] In arguing that it does not, he relies primarily on our decision in Bryan v. Duckworth, 88 F.3d 431 (7th Cir. 1996), where we extended the rule of Sibron v. New York, 392 U.S. 40 (1968), to prison disciplinary proceedings. Sibron holds that if a convicted prisoner is released while his habeas corpus proceeding is pending, the case is moot only if the state proves that there is no possibility that the conviction will ever have an adverse effect on him, as by enhancing his sentence for some future crime. It seemed to us in Bryan that prison discipline was a close substitute for criminal proceedings, because disciplinary sanctions are frequently used to enhance subsequent sentences and disciplinary sanctions and to defeat parole. Bryan v. Duckworth, supra, 88 F.3d at 433.

[12] But between Bryan and the argument of this appeal the Supreme Court decided Spencer v. Kemna, 118 S. Ct. 978 (1998), holding that the possible future effects of a parole revocation that were alleged by the defendant in that case were too speculative to keep his proceeding alive after he was released from the confinement brought about by the revocation. In the course of holding this, the Court spoke disparagingly of the cases that had led up to and followed Sibron, and of Sibron itself, see 118 S. Ct. at 984-85, and it appears to have confined that decision to criminal convictions, saying that "it is an 'obvious fact of life that most criminal convictions do in fact entail adverse collateral legal consequences.'" Id. at 985, quoting 392 U.S. at 55. The only such consequences that Spencer deems relevant, moreover, appear to be statutory disabilities such as loss of the right to vote or the right to own a gun. Consequences that are within the power of the defendant to avoid-such as a sentencing enhancement, which presupposes his deciding to commit another crime--are excluded. Id. at 986-97.

[13] The rule of Sibron is the rule placing the burden of proving absence of collateral consequences on the state. Spencer confined that rule to convictions, and so the extension of the rule, in Bryan, to disciplinary proceedings is no longer good law; for it cannot be said that most prison disciplinary sanctions "do in fact entail adverse collateral legal consequences," especially statutory disabilities, such as loss of the right to vote, that are automatic consequences of felony convictions.

[14] The more difficult question is whether the burden of establishing collateral consequences of a judgment other than a conviction can, after Spencer, ever be carried when, as in Bryan and this case, the only consequences of which the defendant is complaining are contingent upon his committing future crimes or future disciplinary violations (such consequences as being subject to enhanced punishment for a future violation, by virtue of the punishment that he is challenging), as distinct from a case in which the disciplined prisoner shows that some statute or regulation attaches a disability to him that is not contingent on his future misconduct. Spencer suggests that the answer is no; we are sure that the answer is no when the defendant has not only been released but also deported.

[15] To suppose that a future sentencing enhancement is totally avoidable by a convicted defendant is in the usual case to indulge reassuring fictions, but fictions nonetheless, about the American criminal justice system: that it is infallible, and that it is free from any element of strict liability. Innocent people are sometimes convicted and their convictions affirmed, and there are strict liability crimes and also crimes that have an element of strict liability, such as statutory rape committed in a jurisdiction in which reasonable ignorance of the victim's being underage is not a defense. And a person who has been convicted previously is more likely to be convicted erroneously in the future, because if he takes the stand he will be impeached by his previous conviction. So a convicted person may find himself convicted in the future without fault on his part, and if the first conviction was invalid he will be the victim of a double inJustice.

[16] Such cases are, we hope, rare; but in any event the concern about them dwindles to the vanishing point when the person who has been released is deported. Unless he commits an extraditable offense in the country to which he has been deported (as General Noriega was held to have committed an offense against the United States even though he was in Panama), as opposed to the more common case in which a person commits a crime in his own country, flees, and is later extradited to the country in which he committed the crime, he need have no fear of running afoul of the American criminal Justice system unless he reenters the United States without the express permission of the Attorney General. And that is not only a crime, 8 U.S.C. sec. 1326, but a crime for which the possibility of being punished in error, or the possibility of committing the crime involuntarily and still being punished, is minute. Both commission of the crime and jeopardy by reason of being suspected of having committed it are very easily and securely avoided simply by not reentering the United States. It is a crime for which the "wrong" person is never punished. It is conceivable (what isn't?) that Diaz might be kidnapped and brought to the United States and there wrongfully prosecuted and convicted for reentering the United States, but the possibility is far too remote to comport with the new standard of the Spencer case.

[17] Spencer as we read it tries to bring the law of into conformity with a general "hardening" of standing requirements in recent years. See, e.g., Raines v. Byrd, 117 S. Ct. 2312, 2317-23 (1997); United States v. Hays, 515 U.S. 737 (1995); Lujan v. Defenders of Wildlife, 504 U.S. 555 (1992). A basic principle of standing is that a person is not entitled to litigate in a federal court unless he can show a reasonable probability of obtaining a tangible benefit from winning. E.g., Steel Co. v. Citizens for a Better Environment, 118 S. Ct. 1003, 1016-20 (1998); Wisconsin Right to Life, Inc. v. Paradise, No. 97-3668, 1998 WL 110674 (7th Cir. March 13, 1998); Illinois Department of Transportation v. Hinson, 122 F.3d 370, 372 (7th Cir. 1997); Free Air Corp. v. FCC, 130 F.3d 447 (D.C. Cir. 1997). Certainty is not required but a remote possibility won't do. E.g., Shimer v. Washington, 100 F.3d 506, 508 (7th Cir. 1996); North Shore Gas Co. v. EPA, 930 F.2d 1239, 1242 (7th Cir. 1991); Fishbeck v. North Dakota, 115 F.3d 580 (8th Cir. 1997); Mountain States Legal Foundation v. Glickman, 92 F.3d 1228, 1234-35 (D.C. Cir. 1996). That is all we have here, whatever may be the case of a person who having been released from confinement following conviction of a crime remains within the normal territorial jurisdiction of the American criminal Justice system.

[18] We are mindful of the Fifth Circuit's rejection of a "deportation exception" to Sibron. See Umanzor v. Lambert, 782 F.2d 1299, 1301 (5th Cir. 1986). But that case was decided before Spencer and rests on the principle rejected there that "the 'mere possibility of adverse collateral consequences is sufficient to preclude a finding of mootness.'" 782 F.2d at 1301, quoting Sibron v. New York, supra, 392 U.S. at 55. Whatever is left of Sibron is too little for a deportee to invoke, even if the deportee is complaining about a conviction, and not about a parole revocation, like Spencer, or a prison disciplinary sanction, like Diaz.

[19] The appeal is dismissed as moot with instructions to the district court to vacate its judgment and dismiss the suit.