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No Presumption of Collateral Consequences from California Disciplinary Proceeding

by John E. Dannenberg

The Ninth Circuit US Court of Ap-
peals held that in a 28 U.S.C. § 2254 habeas proceeding, a guilty finding in a California state prison disciplinary proceeding would not be accorded a presumption of collateral consequences.

Stephen Wilson, sentenced to 25 years-to-life for first degree murder in 1982, escaped from Folsom State Prison in 1984. Apprehended in 1992 in the United Kingdom (UK), he was extradited to the U.S. pursuant to Extradition Treaty, 28 U.S.T. 227. While this treaty permits extradition for murderers, it does not extradite for the offense of escape. When back in California, the Sacramento County District Attorney's office dismissed escape charges when UK officials declined to grant a waiver of the exclusion of extradition for escape.

However, the California Department of Corrections (CDC) prosecuted a serious disciplinary violation (CDC 115). Wilson admitted he had escaped, but pled not guilty on the ground that the Extradition Treaty's exclusion of escape immunized him from disciplinary charges as well. CDC disagreed, and assessed him 150 days loss of good-time credits, 90 days loss of privileges, 10 days confinement to quarters and a 12 point increase in his classification score (to 102). The 150 days of credit were later restored, per CDC rules.

Wilson was then permitted to marry, but was denied family (overnight) visits based on escape/security concerns. Later, these visits were denied because visiting regulations had been amended to exclude lifers without an established parole date, as well as prisoners whose crime was against a family member. Wilson fit both exclusions. In 1998, he suffered transfer to supermax Pelican Bay State Prison when escape paraphernalia was discovered in a package mailed to him at Folsom.

Wilson sued to protest the restrictions in state and federal courts. The federal magistrate denied the petition as moot because the lost credits had by then been restored, and the denial of family visits and transfer to Pelican Bay were the result of the facts of his commitment offense, his escape and the new escape paraphernalia - not the disciplinary conviction.

On appeal, Wilson first relied upon Chacon v. Wood, 36 F.3d 1459 (9th Cir. 1994) for the proposition that there are always collateral consequences to a conviction - and hence, a presumption of them - that prevent mootness. But the court observed that the consequences here attached to a disciplinary proceeding, not a conviction, and that Chacon was therefore inapposite. Wilson claimed that any future sentence enhancement, or delayed or denied parole, would damage him. But the Ninth Circuit held that such likelihood of the consequences of the no statutory exercise of discretion was insufficient to apply the presumption of collateral consequences, citing Spencer v. Kemna, 523 US 1, 13 (1998).

Even if collateral consequences were not presumed, Wilson claimed he was still entitled to relief because he suffered actual consequences of the CDC-115. He claimed that the existence of the 115 would impair future parole hearings, and had in fact increased his classification score, resulting in adverse job prospects, loss of family visiting, and harsher housing conditions.

But the district court had concluded that the collateral consequences Wilson asserted were "either the result of the fact of the escape or too speculative to justify relief." The Ninth Circuit tacitly agreed and affirmed the district court. See: Wilson v. Terhune, 319 F.3d 477 (9th Cir. 2003). g

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Related legal case

Wilson v. Terhune

Wilson v. Terhune, 319 F.3d 477 (9th Cir. 02/06/2003)

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

[2] No. 01-17448

[3] 319 F.3d 477, 2003, 3 Cal. Daily Op. Serv. 1157, 2003 Daily Journal D.A.R. 1461

[4] February 06, 2003


[6] Appeal from the United States District Court for the Eastern District of California Lawrence K. Karlton, District Judge, Presiding D.C. No. CV 98-1416 LKK/JEM

[7] Counsel

[8] Allison Claire, Assistant Federal Public Defender, Sacramento, California, for the petitioner-appellant.

[9] James E. Flynn, Deputy Attorney General, Sacramento, California, for the respondents-appellees.

[10] Before: A. Wallace Tashima, Sidney R. Thomas, and Richard A. Paez, Circuit Judges.

[11] The opinion of the court was delivered by: Tashima, Circuit Judge


[13] Argued and Submitted October 11, 2002--San Francisco, California


[15] Stephen Leslie Wilson, a California state prisoner, appeals the judgment of the district court, denying his petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. Wilson contends that the district court erred in denying his petition as moot. The court held that there is not an irrebuttable presumption of collateral consequences to prison disciplinary proceedings and that the collateral consequences Wilson asserts are either the result of his escape or too speculative to warrant relief. We have jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253, and we affirm.


[17] In November 1982, Wilson entered a guilty plea to first degree murder and was sentenced to a term of 25 years to life imprisonment. Wilson escaped from Folsom State Prison in 1984 and was apprehended in London, England, in April 1992. In October 1992, Wilson was extradited to the United States pursuant to the Extradition Treaty between the United States and Great Britain, June 8, 1972-Oct. 21, 1976, U.K.- U.S., 28 U.S.T. 227.

[18] Wilson was then returned to Folsom and was placed in administrative segregation for seven-and-one-half months because he was considered a "threat to the safety and security of the institution." At that time, his classification score was 90, the same as it had been when he escaped. Wilson was held in administrative segregation for this length of time because his escape offense constituted a rules violation for which a prison disciplinary hearing was required. Wilson, however, had the hearing postponed while awaiting a decision by the Sacramento County District Attorney's office regarding whether to prosecute him on escape charges. On March 11, 1993, Wilson withdrew his request to postpone the hearing.

[19] On April 1, 1993, the district attorney requested a waiver of the rule of specialty under the Extradition Treaty in order to prosecute Wilson on escape charges. *fn1 The United Kingdom refused to grant a waiver, stating that escape was not an extraditable offense. Consequently, the district attorney dismissed the escape charges. Prison officials then decided to pursue disciplinary proceedings for the escape.

[20] A hearing was held on the disciplinary charges associated with Wilson's escape. Wilson did not deny that he escaped, but he denied the charges on the ground that the Extradition Treaty did not permit him to be charged and disciplined for the escape. Wilson was found guilty and was assessed 150 days loss of good-time credits, 90 days loss of privileges, and 10 days confined-to-quarters status with credit for time served. His classification score was also increased to 102. The loss of 150 days of good-time credit was later eliminated.

[21] In 1994, Wilson applied for permission to marry. The marriage was permitted but family visits were denied "based on escape/security concerns." *fn2 The regulation governing family visits was subsequently amended to prohibit family visits for several categories of inmates, including those who, like Wilson, are designated Close A or Close B custody or are sentenced to life without a parole date established by the Board of Prison Terms. Cal. Code Regs. tit. 15, § 3174(e)(2). Wilson was allowed contact visits after his return. In 1998, he was transferred to Pelican Bay State Prison after a package mailed to him was found to contain escape paraphernalia.

[22] Wilson filed a habeas petition in federal district court after his habeas petitions were denied in state court. The magistrate judge found that all the punishment imposed as a result of the disciplinary action had been either withdrawn or completed at the time of Wilson's petition. The magistrate judge further reasoned that the other consequences alleged by Wilson--the denial of good-time credits and family or conjugal visits, and the transfer to Pelican Bay State Prison--were the result of the fact of Wilson's escape, not of the disciplinary conviction. Because the punishment was completed, the magistrate judge concluded that Wilson's petition was moot and recommended that the petition be denied and the action dismissed on that ground.

[23] In his objections to the magistrate judge's findings and recommendations, Wilson argued that there is an irrebuttable presumption that habeas petitioners suffer collateral consequences sufficient to prevent mootness, citing Chacon v. Wood, 36 F.3d 1459 (9th Cir. 1994). The district court, however, distinguished Chacon on the basis that Chacon held that there are always collateral consequences to a conviction, but that this was not necessarily true for prison disciplinary proceedings. The court further concluded that the collateral consequences asserted by Wilson were "either the result of the fact of escape or too speculative to justify relief." The court therefore denied the petition. Wilson timely appeals.


[25] The district court's denial of a petition for a writ of habeas corpus is subject to de novo review. Park v. California, 202 F.3d 1146, 1149 (9th Cir. 2000). The district court's factual findings are reviewed for clear error. Id.


[27] [1] A case becomes moot when "it no longer present[s] a case or controversy under Article III, § 2, of the Constitution." Spencer v. Kemna, 523 U.S. 1, 7 (1998). In order to satisfy the case-or-controversy requirement, the parties must have a personal stake in the outcome of the suit throughout "all stages of federal judicial proceedings." United States v. Verdin, 243 F.3d 1174, 1177 (9th Cir.), cert. denied, 122 S. Ct. 178 (2001). "A habeas petition challenging the underlying conviction is never moot simply because, subsequent to its filing, the petitioner has been released from custody." Chacon, 36 F.3d at 1463. Some collateral consequence of the conviction must exist, however, in order for the suit to be maintained. Spencer, 523 U.S. at 7.

[28] [2] Wilson contends that we have abolished the mootness doctrine in habeas cases, citing Chacon. In Chacon, we stated that " 'collateral consequences flow from any criminal conviction' " because, "[o]nce convicted, one remains forever subject to the prospect of harsher punishment for a subsequent offense as a result of federal and state laws that either already have been or may eventually be passed." Chacon, 36 F.3d at 1463 (quoting Hirabayashi v. United States, 828 F.2d 591, 606 (9th Cir. 1987)). We therefore held that the petitioner's challenge to his conviction was not rendered moot by his release from custody. Id.

[29] Chacon, however, is inapposite because Wilson is not challenging his conviction but a prison disciplinary proceeding. Wilson contends that (1) the presumption of collateral consequences applies to prison disciplinary convictions, and (2) if not, he has alleged collateral consequences sufficient to meet the case-or-controversy requirement. We hold that the presumption of collateral consequences does not apply to prison disciplinary proceedings. We further conclude that Wilson has not alleged collateral consequences sufficient to avoid dismissal on the ground of mootness. We, therefore, affirm the district court.

[30] I. Presumption of Collateral Consequences

[31] [3] The Supreme Court has held that the presumption of collateral consequences does not apply to the revocation of parole. Spencer, 523 U.S. at 12-14. Wilson argues that the presumption of collateral consequences should, however, apply to prison disciplinary proceedings because institutional consequences of the rules violation charge (a "115" *fn3 ) are not only possible, but inevitable. He asserts that the 115 will affect "classification, institutional and housing assignments, and privileges," and that a serious rules violation may result in a delay or denial of parole. The consequences cited by Wilson are not sufficient to justify applying the presumption to disciplinary proceedings.

[32] [4] The Supreme Court has distinguished between "substantial civil penalties" that result from a criminal conviction, such as the inability to engage in certain businesses, to serve as an official of a labor union, to vote in state elections, and to serve as a juror, and "non-statutory consequences" that "result from a finding that an individual has violated parole," such as the effect on employment prospects or the sentence imposed in future criminal proceedings. Lane v. Williams, 455 U.S. 624, 632 (1982); see also Spencer, 523 U.S. at 12-13 (quoting Lane). The latter consequences are "discretionary decisions" that "are not governed by the mere presence or absence of a recorded violation," but "are more directly influenced by[ ] the underlying conduct that formed the basis for the parole violation." Lane, 455 U.S. at 632-33.

[33] [5] Similarly here, the consequences placed on Wilson are discretionary decisions that are more likely to be influenced by the underlying conduct of his escape, which he does not deny, rather than by the disciplinary proceeding for the escape. That is, Wilson would be considered a security threat because he has previously escaped, not merely because the escape was recorded on a 115.

[34] [6] Wilson argues that the likelihood of delayed or denied parole is analogous to the possibility of a future enhanced sentence, citing Chacon, or the possibility of deportation, citing Park, and is therefore sufficient to prevent mootness. The possibility of a future enhanced sentence, however, has been rejected by the Supreme Court as a basis on which to prevent mootness. Spencer, 523 U.S. at 13, 15. Furthermore, in Park, there was more than a possibility of deportation; the petitioner had already been ordered deported on the basis of his conviction. See Park, 202 F.3d at 1148. The petitioner therefore suffered an actual consequence from his conviction. Id.; cf. Zegarra-Gomez v. INS, ___ F.3d ___, 2003 WL 18499, at *1- *3 (9th Cir. Jan. 2, 2003) (holding that the petitioner's deportation did not render his habeas petition moot because he faced the actual collateral consequence of being ineligible to return to the United States for 20 years). Because the decision whether to grant parole is left to "the judgment of the" Board of Prison Terms, Cal. Code Regs. tit. 15, § 2402, the likelihood of delayed or denied parole is a type of non-statutory consequence dependent on discretionary decisions that is insufficient to apply the presumption of collateral consequences. See Spencer, 523 U.S. at 13 (rejecting the notion that the possibility of an enhanced future sentence constitutes a collateral consequence).

[35] [7] We therefore decline to apply the presumption of collateral consequences to prison disciplinary proceedings. Cf. Diaz v. Duckworth, 143 F.3d 345, 346 (7th Cir. 1998) (reasoning that Spencer had confined the presumption to convictions and so the court's extension of the presumption to prison disciplinary proceedings was no longer good law). The next question is whether Wilson has alleged consequences sufficient to meet the case-or-controversy requirement.

[36] II. Wilson's Allegations of Collateral Consequences

[37] Wilson does not challenge the punishment he received as a result of the disciplinary proceeding, which he acknowledges is no longer at issue. Rather, he contends that the existence of the 115 itself will result in adverse collateral consequences. The district court concluded that the consequences alleged by Wilson were "either the result of the fact of escape or too speculative to justify relief." We agree.

[38] Wilson identifies the following collateral consequences: the denial of conjugal visits, his transfer to Pelican Bay State Prison, and the increase in his classification score. *fn4 Wilson analogizes his case to Robbins v. Christianson, 904 F.2d 492 (9th Cir. 1990), in which we concluded that the possibility of employment discrimination in the future on the basis of a prison disciplinary action for drug use was "not too ephemeral to constitute a collateral consequence for mootness purposes." *fn5 Id. at 496. Wilson contends that the possibility of impaired job prospects is analogous to the possibility of impaired parole prospects that he faces as a result of the disciplinary violation.

[39] [8] Robbins, however, is distinguishable because the petitioner there challenged the underlying finding of misconduct --the alleged drug use--that was the basis for the disciplinary action. See id. at 495 (stating that "[t]his circuit has not said what result is appropriate when a prisoner attacks the finding of misconduct that caused his parole to be revoked or his sentence to be lengthened"). By contrast, Wilson has not challenged the fact that he escaped. This fact is more likely to influence Wilson's parole prospects than the existence of the 115. Similar to Lane, in which the Court reasoned that "[a]ny disabilities that flow from whatever respondents did to evoke revocation of parole are not removed--or even affected--by a District Court order that simply recites that their parole terms are 'void,' " Lane, 455 U.S. at 633, the consequences of Wilson's escape are not likely to be affected by an order removing the disciplinary conviction from his record.

[40] [9] Wilson next argues that the 115 is a basis for the denial of parole, citing Cal. Code Regs. tit. 15, § 2402(c)(6). As discussed above, however, the decision to grant parole is discretionary. The regulation specifically states that "serious misconduct in prison or jail" is one circumstance "tend[ing] to indicate unsuitability for release," and that "the importance attached to any circumstance . . . is left to the judgment of the panel." Cal. Code Regs. tit. 15, § 2402(c). Moreover, the regulation does not state that a rules violation charge is a circumstance to be considered, but instead cites serious misconduct as a factor for consideration. Thus, Wilson's escape, not the 115, is the circumstance that would be considered by the Board of Prison Terms.

[41] [10] The denial of conjugal visits is unrelated to Wilson's disciplinary conviction for escape. Wilson is ineligible for family visits both because he was convicted of a violent offense involving a family member, pursuant to Cal. Penal Code § 187, and because he is sentenced to a life term without a parole date. See Cal. Code Regs. tit. 15, § 3174(e)(1) & (2).

[42] Wilson alleges that his transfer to Pelican Bay is an adverse consequence because it is "notorious for its harsh conditions."

[43] However, Wilson was transferred to Pelican Bay, not as a result of the disciplinary conviction, but because, in 1998, several years after the disciplinary proceeding, Wilson received escape paraphernalia in a mailed package. The record also reveals that Wilson himself asked to remain at Pelican Bay "due to his susceptibility to skin cancer and wanting to live in a northern, cooler climate."

[44] Finally, Wilson argues that his classification was increased 14 points as a result of the disciplinary conviction. Wilson does not, however, name any specific consequence he has suffered or may suffer as a result of this score, making only vague and unsupported allegations. Wilson has failed to allege a collateral consequence sufficient to meet the case-orcontroversy requirement. Cf. Spencer, 523 U.S. at 14-16 (rejecting the petitioner's alleged consequences as "a possibility rather than a certainty or even a probability" and as "purely a matter of speculation").


[46] [11] We hold that the presumption of collateral consequences does not apply to prison disciplinary proceedings. The collateral consequences Wilson alleges regarding parole are discretionary decisions and therefore speculative; moreover, they are more likely to be affected by the fact of his escape, a finding that he does not challenge, rather than the 115. The other consequences are either vague and unsupported or unrelated to the disciplinary conviction. Wilson therefore has not alleged collateral consequences sufficient to meet the case-or-controversy requirement. The decision of the district court denying Wilson's petition as moot is



Opinion Footnotes


[48] *fn1 The rule of specialty is set forth in Article XII of the Extradition Treaty, which provides, in part, that "[a] person extradited shall not be detained or proceeded against in the territory of the requesting Party for any offense other than an extraditable offense."

[49] *fn2 Family visits are "extended and overnight" visits between inmates and members of the inmate's immediate family. Cal. Code Regs. tit. 15, § 3174.

[50] *fn3 "115" is the shorthand reference used by the parties for a rules violation charge because inmate misconduct is reported on California Department of Corrections Form 115.

[51] *fn4 Wilson also alleges that the disciplinary conviction will likely diminish his prospects of receiving parole, citing Cal. Code Regs. tit. 15, § 2410(d), which precludes the application of post-conviction credit if a prisoner commits serious or numerous infractions of departmental regulations. Section 2410(d) is inapplicable to Wilson because it applies to serious disciplinary violations that could result in rescission of parole once a parole date has been established, see Cal. Code Regs., tit. 15, § 2410(a), and Wilson has not yet been granted a parole date.

[52] *fn5 Robbins also concluded that the possibility of a harsher sentence in any future criminal proceedings was another collateral consequence sufficient to prevent mootness. 904 F.2d at 495. This type of collateral consequence was rejected in Spencer, in which the Court stated that the habeas petitioner is expected to prevent such a possibility by avoiding violating the law. Spencer, 523 U.S. at 13-15.