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    Case Num. 967171 NOTE: Where it is feasible, a syllabus (headnote) will be released, as is being done in connection with this case, at the time the opinion is issued. The syllabus constitutes no part of the opinion of the Court but has been prepared by the Reporter of Decisions for the convenience of the reader. See United States v. Detroit Timber & Lumber Co ., 200 U.S. 321, 337 .

    U.S. Supreme Court

    Syllabus

    v.

    AL. CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

    No. 96-7171.
    Argued November 12, 1997 -
    Decided March 3, 1998

    On October 17, 1990, petitioner began serving concurrent three-year sentences for convictions of felony stealing and burglary, due to expire on October 16, 1993. On April 16, 1992, he was released on parole, but on September 24, 1992, that parole was revoked and he was returned to prison. Thereafter, he sought to invalidate the parole revocation, first filing habeas petitions in state court, and then the present federal habeas petition. Before the District Court addressed the merits of the habeas petition, petitioner's sentence expired, and so the District Court dismissed the petition as moot. The Eighth Circuit affirmed.

    Held: The expiration of petitioner's sentence has caused his petition to be moot because it no longer presents an Article III case or controversy.

    (a) An incarcerated convict's (or a parolee's) challenge to his conviction always satisfies the case-or-controversy requirement because the incarceration (or the restriction imposed by the terms of parole) constitutes a concrete injury caused by the conviction and redressable by the conviction's invalidation. Once the sentence has expired, however, the petitioner must show some concrete and continuing injury other than the now-ended incarceration (or parole)-some "collateral consequence" of the conviction-if the suit is to be maintained. In recent decades, this Court has presumed that a wrongful conviction has continuing collateral consequences (or, what is effectively the same, has counted collateral consequences that are remote and unlikely to occur). Sibron v. New York, 392 U.S. 40, 55 -56. However, in Lane v. Williams, 455 U.S. 624 , the Court refused to extend this presumption of collateral consequences to the revocation of parole. The Court adheres to that refusal, which leaves only the question whether petitioner has demonstrated collateral consequences. Pp. 5-12.

    (b) Petitioner's asserted injuries-in-fact do not establish collateral consequences sufficient to state an Article III case or controversy. That his parole revocation could be used to his detriment in a future parole proceeding is merely a possibility rather than a certainty or a probability. That the revocation could be used to increase his sentence in a future sentencing proceeding is, like a similar claim rejected in Lane, contingent on petitioner's violating the law, being caught and convicted. Likewise speculative are petitioner's other allegations of collateral consequence-that the parole revocation could be used to impeach him should he appear as a witness in future proceedings, and that it could be used directly against him should he appear as a defendant in a criminal proceeding. Pp. 12-14.

    (c) The Court finds no merit in petitioner's remaining argumentsthat since he is foreclosed from pursuing a damages action under 42 U.S.C. 1983 unless he can establish his parole revocation's invalidity, see Heck v. Humphrey, 512 U.S. 477 , his action to establish that invalidity cannot be moot; that this case falls within the exception to the mootness doctrine for cases that are "capable of repetition, yet evading review"; and that the mootness of his case should be ignored because it was caused by the dilatory tactics of the state attorney general's office and by district court delays. Pp. 15-16.

    91 F. 3d 1114, affirmed.

    SCALIA , J., delivered the opinion of the Court, in which REHNQUIST , C. J., and O'CONNOR , KENNEDY , SOUTER , THOMAS , GINSBURG , and BREYER , JJ., joined. SOUTER , J., filed a concurring opinion, in which O'CONNOR , GINSBURG , and BREYER , JJ., joined. GINSBURG , J., filed a concurring opinion. STEVENS , J., filed a dissenting opinion.


    NOTICE: This opinion is subject to formal revision before publication in the preliminary print of the United States Reports. Readers are requested to notify the Reporter of Decisions, Supreme Court of the United States, Washington, D. C. 20543, of any typographical or other formal errors, in order that corrections may be made before the preliminary print goes to press.

    U.S. Supreme Court

    No. 96-7171

    RANDY G. SPENCER, PETITIONER v. MIKE KEMNA, SUPERINTENDENT, WESTERN MISSOURI CORRECTIONAL CENTER, ET

    AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

    [March 3, 1998]

    JUSTICE SCALIA delivered the opinion of the Court.

    In his petition for a writ of habeas corpus, Randy G. Spencer seeks to invalidate a September 24, 1992, order revoking his parole. Because Spencer has completed the entire term of imprisonment underlying the parole revocation, we must decide whether his petition is moot.

    I

    On October 17, 1990, petitioner began serving concurrent 3-year sentences in Missouri on convictions of felony stealing and burglary. On April 16, 1992, he was released on parole, but on September 24, 1992, the Missouri Board of Probation and Parole, after hearing, issued an Order of Revocation revoking the parole. The order concluded that petitioner had violated three of the conditions, set forth in Missouri's Code of Regulations, Title 14, 80-3.010 (1992), that a Missouri inmate must comply with in order to remain on parole:

    App. 55-56.

    The specific conduct that violated these conditions was described only by citation of the parole violation report that the Board used in making its determination: "Evidence relied upon for violation is from the Initial Violation Report dated 7-27-92." Id., at 56.

    That report, prepared by State Probation and Parole Officer Jonathan Tintinger, summarized a June 3, 1992, police report prepared by the Kansas City, Missouri Police Department, according to which a woman had alleged that petitioner, after smoking crack cocaine with her at a local crack house and later at his own home, pressed a screwdriver against her side and raped her. According to the Kansas City report, petitioner had admitted smoking crack cocaine with the woman, but claimed that the sexual intercourse between them had been consensual. Officer Tintinger's report then described his own interview with petitioner, at which petitioner again admitted smoking crack cocaine with the woman, denied that he had pressed a screwdriver to her side, and did not respond to the allegation of rape. Finally, after noting that "Spencer [was] a registered sex offender, having been given a five-year prison sentence for Sodomy in 1983," App. 75, Officer Tintinger's report tentatively recommended that peti tioner's parole be continued, but that he be placed in a drug treatment center. The report withheld making "an ultimate recommendation based on the alleged [rape and dangerous weapon] violations" until the prosecuting attorney's office had a chance to dispose of those charges. Id., at 76. "In the event formal charges are ultimately filed," it said, "a separate recommendation will be forthcoming." Ibid. Petitioner was never charged, but a September 14, 1992, follow-up report prepared by Institutional Parole Officer Peggy McClure concluded that "there [did] appear to be significant evidence that Spencer ha[d] violated the conditions of his parole as stated," and recommended that petitioner's parole be revoked. Id., at 64. Officer McClure's report is not mentioned in the Order of Revocation.

    On being returned to prison, petitioner began his efforts to invalidate the Order of Revocation. He first sought relief in the Missouri courts, but was rejected by the Circuit Court of DeKalb County, the Missouri Court of Appeals, and, finally, the Missouri Supreme Court. Then, on April 1, 1993, just over six months before the expiration of his 3-year sentence, petitioner filed a petition for a writ of habeas corpus, see 28 U.S.C. 2254 in the United States District Court for the Western District of Missouri, alleging that he had not received due process in the parole revocation proceedings. 1

    Over petitioner's objections, the District Court granted the State two requested extensions of time to respond to the petition, deferring the deadline from June 2, 1993, until July 7, 1993. On July 14, 1993, after receiving the State's response, petitioner filed a lengthy "Motion and Request for Final Disposition of this Matter," in which he requested that the District Court expedite decision on his case in order to prevent his claim from becoming moot. Before the District Court responded to this motion, however, on August 7, 1993, petitioner was re-released on parole, and, two months after that, on October 16, 1993, the term of his imprisonment expired. On February 3, 1994, the District Court "noted" petitioner's July motion, stating that "[t]he resolution of this case will not be delayed beyond the requirements of this Court's docket." App. 127. Then, on August 23, 1995, the District Court dismissed petitioner's habeas petition. "Because," it said, "the sentences at issue here have expired, petitioner is no longer 'in custody' within the meaning of 28 U.S.C. 2254(a), and his claim for habeas corpus relief is moot." Id., at 130.

    The United States Court of Appeals for the Eighth Circuit affirmed the District Court's judgment, 2

    concluding that, under our decision in Lane v. Williams , 455 U.S. 624, 632 (1982), petitioner's claim had become moot be cause he suffered no "collateral consequences" of the revocation order. 91 F. 3d 1114 (1996). (It acknowledged that this interpretation of Lane did not accord with that of the Second and Ninth Circuits in United States v. Parker , 952 F. 2d 31 (CA2 1991), and Robbins v. Christianson , 904 F. 2d 492 (CA9 1990)). We granted certiorari. 520 U. S. __ (1997).

    II

    The District Court's conclusion that Spencer's release from prison caused his petition to be moot because it no longer satisfied the "in custody" requirement of the habeas statute was in error. Spencer was incarcerated by reason of the parole revocation at the time the petition was filed, which is all the "in custody" provision of 28 U.S.C. 2254 requires. See Carafas v. LaVallee , 391 U.S. 234, 238 (1968); Maleng v. Cook , 490 U.S. 488, 490 -491 (1989) (per curiam) . The more substantial question, however, is whether petitioner's subsequent release caused the petition to be moot because it no longer presented a case or controversy under Article III, 2, of the Constitution. "This case-or-controversy requirement subsists through all stages of federal judicial proceedings, trial and appellate. . . . The parties must continue to have a 'personal stake in the outcome' of the lawsuit." Lewis v. Continental Bank Corp. , 494 U.S. 472, 477 -478 (1990). See also Preiser v. Newkirk , 422 U.S. 395, 401 (1975). This means that, throughout the litigation, the plaintiff "must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision." Lewis, supra , at 477.

    An incarcerated convict's (or a parolee's) challenge to the validity of his conviction always satisfies the case-orcontroversy 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 parolesome "collateral consequence" of the conviction-must exist if the suit is to be maintained. See, e.g., Carafas, supra , at 237-238. In recent decades, we have been willing to presume that a wrongful criminal conviction has continuing collateral consequences (or, what is effectively the same, to count collateral consequences that are remote and unlikely to occur). See Sibron v. New York , 392 U.S. 40, 55 -56 (1968).

    The present petitioner, however, does not attack his convictions for felony stealing and burglary, which he concedes were lawful; he asserts only the wrongful termination of his parole status. The reincarceration that he incurred as a result of that action is now over, and cannot be undone. Subsistence of the suit requires, therefore, that continuing "collateral consequences" of the parole revocation be either proven or presumed. And the first question we confront is whether the presumption of collateral consequences which is applied to criminal convictions will be extended as well to revocations of parole. To answer that question, it is helpful to review the origins of and basis for the presumption.

    Originally, we required collateral consequences of conviction to be specifically identified, and we accepted as sufficient to satisfy the case-or-controversy requirement only concrete disadvantages or disabilities that had in fact occurred, that were imminently threatened, or that were imposed as a matter of law (such as deprivation of the right to vote, to hold office, to serve on a jury, or to engage in certain businesses). Thus, in St. Pierre v. United States , 319 U.S. 41 (1943) (per curiam) , one of the first cases to recognize collateral consequences of conviction as a basis for avoiding mootness, we refused to allow St. Pierre's challenge to a contempt citation after he had com pleted his 5-month sentence, because "petitioner [has not] shown that under either state or federal law further penalties or disabilities can be imposed on him as a result of the judgment which has now been satisfied," id. , at 43. We rejected St. Pierre's argument that the possibility that "the judgment [could] impair his credibility as [a] witness in any future legal proceeding" was such a penalty or disability, because "the moral stigma of a judgment which no longer affects legal rights does not present a case or controversy for appellate review." Ibid. Similarly, in Carafas v. LaVallee , we permitted an individual to continue his challenge to a criminal conviction only after identifying specific, concrete collateral consequences that attached to the conviction as a matter of law:

    Carafas , 391 U.S., at 237 (footnotes and citation

    omitted). See also Fiswick v. United States , 329 U.S. 211, 221 -223 (1946) (conviction rendered petitioner liable to deportation and denial of naturalization, and ineligible to serve on a jury, vote, or hold office); United States v. Morgan , 346 U.S. 502 (1954) (conviction had been used to increase petitioner's current sentence under state recidivist law); Parker v. Ellis , 362 U.S. 574, 576 (1960) (Harlan, J., concurring) (since petitioner's other, unchallenged convictions took away the same civil rights as the conviction under challenge, the challenge was moot); Ginsberg v. New York , 390 U.S. 629, 633 , n. 2 (1968) (conviction rendered petitioner liable to revocation of his license to operate luncheonette business). Cf. Tannenbaum v. New York , 388 U.S. 439 (1967) (per curiam); Jacobs v. New York , 388 U.S. 431 (1967) (per curiam) . The gateway to abandonment of this fastidious approach to collateral consequences was Pollard v. United States , 352 U.S. 354 (1957). There, in allowing a convict who had already served his time to challenge the length of his sentence, we said, almost offhandedly, that "[t]he possibility of consequences collateral to the imposition of sentence [was] sufficiently substantial to justify our dealing with the merits," id. , at 358-citing for that possibility an earlier case involving consequences for an alien (which there is no reason to believe Pollard was), see Pino v. Landon , 349 U.S. 901 (1955). In Sibron v. New York , we relied upon this opinion to support the conclusion that our jurisprudence had "abandoned all inquiry into the actual existence of collateral consequences and in effect presumed that they existed." 392 U.S., at 55 (citing Pollard, supra ). 3

    Thereafter, and in summary fashion, we proceeded to accept the most generalized and hypothetical of consequences as sufficient to avoid mootness in challenges to conviction. For example, in Evitts v. Lucey , 469 U.S. 387 (1985), we held that respondent's habeas challenge had not become moot despite the expiration of his sentence and despite the fact that "his civil rights, including suffrage and the right to hold public office, [had been] restored," id., at 391, n. 4. Since he had not been pardoned, we said, "some collateral consequences of his conviction remain, including the possibility that the conviction would be used to impeach testimony he might give in a future proceeding and the possibility that it would be used to subject him to persistent felony offender prosecution if he should go to trial on any other felony charges in the future." Ibid. See also Benton v. Maryland , 395 U.S. 784, 790 -791 (1969); Pennsylvania v. Mimms , 434 U.S. 106, 108 , n. 3 (1977) (per curiam); Minnesota v. Dickerson , 508 U.S. 366 (1993).

    There are several relevant observations to be made regarding these developments: First, it must be acknowledged that the practice of presuming collateral consequences (or of accepting the remote possibility of collateral consequences as adequate to satisfy Article III) sits uncomfortably beside the "long-settled principle that standing cannot be 'inferred argumentatively from averments in the pleadings,' but rather 'must affirmatively appear in the record,' " and that "it is the burden of the 'party who seeks the exercise of jurisdiction in his favor,' 'clearly to allege facts demonstrating that he is a proper party to invoke judicial resolution of the dispute.' " FW/PBS, Inc. v. Dallas, 493 U.S. 215, 231 (1990) (internal citations omitted). The practice of presuming collateral consequences developed during an era in which it was thought that the only function of the constitutional requirement of standing was "to assure that concrete adverseness which sharpens the presentation of issues," Baker v. Carr, 369 U.S. 186, 204 (1962). Sibron appears in the same volume of the United States Reports as Flast v. Cohen , 392 U.S. 83 (1968), which said:

    Id. , at 100-101. See Benton v. Maryland , supra , at 790-791 ("Although this possibility [of collateral consequences] may well be a remote one, it is enough to give this case an adversary cast and make it justiciable"). That parsimonious view of the function of Article III standing has since yielded to the acknowledgement that the constitutional requirement is a "means of 'defin[ing] the role assigned to the judiciary in a tripartite allocation of power,' " Valley Forge Christian College v. Americans United for the Separation of Church and State, Inc. , 454 U.S. 464, 474 (1982), 4

    and "a part of the basic charter . . . provid[ing] for the interaction between [the federal] government and the governments of the several States," id. , at 476. See also Lujan v. Defenders of Wildlife, 504 U.S. 555, 559 -560 (1992). And finally, of particular relevance to the question whether the practice of presuming collateral consequences should be extended to challenges of parole termination: in the context of criminal conviction, the presumption of significant collateral consequences is likely to comport with reality. As we said in Sibron , it is an "obvious fact of life that most criminal convictions do in fact entail adverse collateral legal consequences." 392 U.S., at 55 . The same cannot be said of parole revocation.

    For these reasons, perhaps, we have hitherto refused to extend our presumption of collateral consequences (or our willingness to accept hypothetical consequences) to the area of parole revocation. In Lane v. Williams , 455 U.S. 624 (1982), we rejected the contention of convicted felons who had completed their sentences that their challenges to their sentences of three years' mandatory parole at the conclusion of their fixed terms of incarceration (which parole they had violated) were not moot because the revocations of parole could be used to their detriment in future parole proceedings should they ever be convicted of other crimes. We said:

    Id., at 632.

    . . . . .

    Id. , at 632-633, n. 13. It was not enough that the parole violations found by the revocation decision would enable the parole board to deny respondents parole in the future, see id. , at 639-640 (Marshall, J., dissenting) (quoting Illinois rules governing denial of parole). For such violations "[did] not render an individual ineligible for parole under Illinois law[,] [but were] simply one factor, among many, that may be considered by the parole authority . . . ." Id. , at 633, n. 13. And, in any event, "[t]he parole violations that remain a part of respondents' records cannot affect a subsequent parole determination unless respondents again violate state law, are returned to prison, and become eligible for parole. Respondents themselves are able-and indeed required by law-to prevent such a possibility from occurring." Ibid. In addition, we rejected as collateral consequences sufficient to keep the controversy alive the possibility that the parole revocations would affect the individuals' "employment prospects, or the sentence imposed [upon them] in a future criminal proceeding." Id. , at 632. These "nonstatutory consequences" were dependent upon "[t]he discretionary decisions . . . made by an employer or a sentencing judge," which are "not governed by the mere pres ence or absence of a recorded violation of parole," but can "take into consideration, and are more directly influenced by, the underlying conduct that formed the basis for the parole violation." Id. , at 632-633. 5

    We adhere to the principles announced in Lane , and decline to presume that collateral consequences adequate to meet Article III's injury-in-fact requirement resulted from petitioner's parole revocation. The question remains, then, whether petitioner demonstrated such consequences.

    III

    Petitioner asserts four concrete injuries-in-fact attributable to his parole revocation. First, he claims that the revocation could be used to his detriment in a future parole proceeding. This possibility is no longer contingent on petitioner's again violating the law; he has already done so, and is currently serving a 7-year term of imprisonment. But it is, nonetheless, still a possibility rather than a certainty or even a probability. Under Missouri law, as under the Illinois law addressed in Lane , a prior parole revocation "[does] not render an individual ineligible for parole[,] [but is] simply one factor, among many, that may be considered by the parole authority in determining whether there is a substantial risk that the parole candi- date will not conform to reasonable conditions of parole." Lane, 455 U.S., at 633 , n. 13. Under Missouri law, "[w]hen in its opinion there is reasonable probability that an offender . . . can be released without detriment to the community or himself, the board may in its discretion release or parole such person." Mo. Rev. Stat. 217.690 (1996). The Missouri Supreme Court has said that this statute "giv[es] the Board 'almost unlimited discretion' in whether to grant parole release." Shaw v. Missouri Board of Probation and Parole , 937 S. W. 2d 771, 772 (1997).

    Petitioner's second contention is that the Order of Revocation could be used to increase his sentence in a future sentencing proceeding. A similar claim was likewise considered and rejected in Lane , because it was contingent upon respondents' violating the law, being caught and convicted. "Respondents themselves are able-and indeed required by law-to prevent such a possibility from occurring." Lane, supra , at 633, n. 13. We of course have rejected analogous claims to Article III standing in other contexts.

    O'Shea v. Littleton , 414 U.S. 488, 497  

    (1974). See also Los Angeles v. Lyons , 461 U.S. 95, 102 -103 (1983).

    For similar reasons, we reject petitioner's third and fourth contentions, that the parole revocation (and, specifically, the "finding of a parole violation for forcible rape and armed criminal action," see Brief for Petitioner 34) could be used to impeach him should he appear as a witness or litigant in a future criminal or civil proceeding; or could be used against him directly, pursuant to Federal Rule of Evidence 405 6

    (or Missouri's state law equivalent, see Durbin v. Cassalo , 321 S. W. 2d 23, 26 (Mo. App. 1959)) or Federal Rule of Evidence 413 7

    , should he appear as a defendant in a criminal proceeding. It is purely a matter of speculation whether such an appearance will ever occur. See O'Shea, supra, at 496-497. Moreover, as to the possibility that petitioner (or a witness appearing on his behalf) would be impeached with the parole revocation, it is far from certain that a prosecutor or examining counsel would decide to use the parole revocation (a "discretionary decision" similar to those of the sentencing judge and employer discussed in Lane, supra , at 632-633); and, if so, whether the presiding judge would admit it, particularly in light of the far more reliable evidence of two past criminal convictions that would achieve the same purpose of impeachment, see State v. Comstock , 647 S. W. 2d 163, 165 (Mo. App. 1983). Indeed, it is not even clear that a Missouri court could legally admit the parole revocation to impeach petitioner. See State v. Newman , 568 S. W. 2d 276, 278-282 (Mo. App. 1978). And as to the possibility that the parole revocation could be used directly against petitioner should he be the object of a criminal prosecution, it is at least as likely that the conduct underlying the revocation, rather than the revocation itself (which does not recite the specific conduct constituting the parole violation) would be used. 8

    IV

    Petitioner raises three more arguments, none of which seems to us well taken. First, he contends that since our decision in Heck v. Humphrey , 512 U.S. 477 (1994), would foreclose him from pursuing a damages action under 42 U.S.C. 1983 unless he can establish the invalidity of his parole revocation, his action to establish that invalidity cannot be moot. This is a great non sequitur , unless one believes (as we do not) that a 1983 action for damages must always and everywhere be available. It is not certain, in any event, that a 1983 damages claim would be foreclosed. If, for example, petitioner were to seek damages "for using the wrong procedures, not for reaching the wrong result," see Heck , 512 U.S., at 482 -483, and if that procedural defect did not "necessarily imply the invalidity of" the revocation, see id. , at 487, then Heck would have no application all. See also Edwards v. Balisok , 520 U. S. ___, ___ (slip op., at 3-7) (1997); id., at ___ (slip op., at 1) (Ginsburg, J., concurring).

    Secondly, petitioner argues in his Reply Brief that this case falls within the exception to the mootness doctrine for cases that are "capable of repetition, yet evading review." Reply Brief of Petitioner 5. "[T]he capable-of-repetition doctrine applies only in exceptional situations," Lyons , supra, at 109, "where the following two circumstances [are] simultaneously present: ' "(1) the challenged action [is] in its duration too short to be fully litigated prior to cessation or expiration, and (2) there [is] a reasonable expectation that the same complaining party [will] be subject to the same action again," ' " Lewis , 494 U.S., at 481 (quoting Murphy v. Hunt , 455 U.S. 478, 482 (1982) (per curiam) (quoting Weinstein v. Bradford , 423 U.S. 147, 149 (1975) (per curiam) )); see also Norman v. Reed , 502 U.S. 279, 288 (1992). Petitioner's case satisfies neither of these conditions. He has not shown (and we doubt that he could) that the time between parole revocation and expiration of sentence is always so short as to evade review. Nor has he demonstrated a reasonable likelihood that he will once again be paroled and have that parole revoked.

    Finally, petitioner argues that, even if his case is moot, that fact should be ignored because it was caused by the dilatory tactics of the state attorney general's office and the delay of the District Court. But mootness, however it may have come about, simply deprives us of our power to act; there is nothing for us to remedy, even if we were disposed to do so. We are not in the business of pronouncing that past actions which have no demonstrable continuing effect were right or wrong. As for petitioner's concern that law enforcement officials and district judges will repeat with impunity the mootness-producing abuse that he alleges occurred here: We are confident that, as a general matter, district courts will prevent dilatory tactics by the litigants and will not unduly delay their own rulings; and that, where appropriate, corrective mandamus will issue from the courts of appeals.

    * * *

    For the foregoing reasons, we affirm the judgment of the Court of Appeals.

    It is so ordered.


    U.S. Supreme Court

    No. 96-7171

    RANDY G. SPENCER, PETITIONER v. MIKE KEMNA, SUPERINTENDENT, WESTERN MISSOURI CORREC- TIONAL CENTER, ET

    AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

    [March 3, 1998]

    JUSTICE SOUTER , with whom JUSTICE O'CONNOR , JUSTICE GINSBURG , and S 2723 4578 () 25 JUSTICE BREYER join, concurring.

    I join the Court's opinion as well as the judgment, though I do so for an added reason that the Court does not reach, but which I spoke to while concurring in a prior case. One of Spencer's arguments for finding his present interest adequate to support continuing standing despite his release from custody is, as he says, that he may not now press his claims of constitutional injury by action against state officers under 42 U.S.C. 1983. He assumes that Heck v. Humphrey, 512 U.S. 477 (1994), held or entails that conclusion, with the result that holding his habeas claim moot would leave him without any present access to a federal forum to show the unconstitutionality of his parole revocation. If Spencer were right on this point, his argument would provide a reason, whether or not dispositive, to recognize continuing standing to litigate his habeas claim. But he is wrong; Heck did not hold that a released prisoner in Spencer's circumstances is out of court on a 1983 claim, and for reasons explained in my Heck concurrence, it would be unsound to read either Heck or the habeas statute as requiring any such result. For all that appears here, then, Spencer is free to bring a 1983 action, and his corresponding argument for continuing habeas standing falls accordingly.

    The petitioner in Heck was an inmate with a direct appeal from his conviction pending, who brought a 1983 action for damages against state officials who were said to have acted unconstitutionally in arresting and prosecuting him. Drawing an analogy to the tort of malicious prosecution, we ruled that an inmate's 1983 claim for damages was unavailable because he could not demonstrate that the underlying criminal proceedings had terminated in his favor.

    To be sure, the majority opinion in Heck can be read to suggest that this favorable-termination requirement is an element of any 1983 action alleging unconstitutional conviction, whether or not leading to confinement and whether or not any confinement continued when the 1983 action was filed. Heck, supra , at 483-484, 486-487. Indeed, although Heck did not present such facts, the majority acknowledged the possibility that even a released prisoner might not be permitted to bring a 1983 action implying the invalidity of a conviction or confinement without first satisfying the favorable-termination requirement. Id. , at 490, n. 10.

    Concurring in the judgment in Heck , I suggested a different rationale for blocking an inmate's suit with a requirement to show the favorable termination of the underlying proceedings. In the manner of Preiser v. Rodriguez, 411 U.S. 475 (1973), I read the "general" 1983 statute in light of the "specific" federal habeas statute, which applies only to persons "in custody," 28 U.S.C. 2254(a), and requires them to exhaust state remedies, 2254(b). Heck, supra, at 497 (SOUTER , J., concurring in judgment). I agreed that "the statutory scheme must be read as precluding such attacks," id., at 498, not because the favorable-termination requirement was necessarily an element of the 1983 cause of action for unconstitutional conviction or custody, but because it was a "simple way to avoid collisions at the intersection of habeas and 1983." Ibid.

    I also thought we were bound to recognize the apparent scope of 1983 when no limitation was required for the sake of honoring some other statute or weighty policy, as in the instance of habeas. Accordingly, I thought it important to read the Court's Heck opinion as subjecting only inmates seeking 1983 damages for unconstitutional conviction or confinement to "a requirement analogous to the malicious-prosecution tort's favorable termination requirement," id., at 500, lest the plain breadth of 1983 be unjustifiably limited at the expense of persons not "in custody" within the meaning of the habeas statute. The subsequent case of Edwards v. Balisok, 520 U. S. ___ (1997), was, like Heck itself, a suit by a prisoner and so for present purposes left the law where it was after Heck . Now, as then, we are forced to recognize that any application of the favorable-termination requirement to 1983 suits brought by plaintiffs not in custody would produce a patent anomaly: a given claim for relief from unconstitutional injury would be placed beyond the scope of 1983 if brought by a convict free of custody (as, in this case, following service of a full term of imprisonment), when exactly the same claim could be redressed if brought by a former prisoner who had succeeded in cutting his custody short through habeas. *

    The better view, then, is that a former prisoner, no longer "in custody," may bring a 1983 action establishing the unconstitutionality of a conviction or confinement without being bound to satisfy a favorable-termination requirement that it would be impossible as a matter of law for him to satisfy. Thus, the answer to Spencer's argument that his habeas claim cannot be moot because Heck bars him from relief under 1983 is that Heck has no such effect. After a prisoner's release from custody, the habeas statute and its exhaustion requirement have nothing to do with his right to any relief.


    U.S. Supreme Court

    No. 96-7171

    RANDY G. SPENCER, PETITIONER v. MIKE KEMNA, SUPERINTENDENT, WESTERN MISSOURI CORRECTIONAL CENTER, ET

    AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

    [March 3, 1998]

    JUSTICE GINSBURG , concurring.

    The Court held in Heck v. Humphrey, 512 U.S. 477 (1994), that a state prisoner may not maintain an action under 42 U.S.C. 1983 if the direct or indirect effect of granting relief would be to invalidate the state sentence he is serving. I joined the Court's opinion in Heck . Mindful of "real-life example[s]," among them this case, cf. id. , at 490, n. 10, I have come to agree with JUSTICE SOUTER 's reasoning: Individuals without recourse to the habeas statute because they are not "in custody" (people merely fined or whose sentences have been fully served, for example) fit within 1983's "broad reach." See id. , at 503 (SOUTER , J., concurring in judgment); cf. Henslee v. Union Planters Nat. Bank & Trust Co., 335 U.S. 595, 600 (1949) (Frankfurter, J., dissenting) ("Wisdom too often never comes, and so one ought not to reject it merely because it comes late."). On that understanding of the state of the law, I join both the Court's opinion and JUSTICE SOUTER 's concurring opinion in this case.


    U.S. Supreme Court

    No. 96-7171

    RANDY G. SPENCER, PETITIONER v. MIKE KEMNA, SUPERINTENDENT, WESTERN MISSOURI CORRECTIONAL CENTER, ET

    AL. ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE EIGHTH CIRCUIT

    [March 3, 1998]

    JUSTICE STEVENS , dissenting.

    An official determination that a person has committed a crime may cause two different kinds of injury. It may result in tangible harms such as imprisonment, loss of the right to vote or to bear arms, and the risk of greater punishment if another crime is committed. It may also severely injure the person's reputation and good name.

    In holding that petitioner's case is moot, the Court relies heavily on our opinion in Lane v. Williams, 455 U.S. 624 (1982) (STEVENS , J.). See ante , at 10-14. Lane , however, is inapposite. In Lane , the respondents did not seek to challenge the factual findings underlying their parole revocations. 455 U.S., at 633 . Instead, they simply sought to challenge their sentences; yet because they had been released by the time the case reached us, the case was moot. Id. , at 631. "Through the mere passage of time, respondents ha[d] obtained all the relief that they sought." Id., at 633.

    In this case, petitioner challenges the factual findings on which his parole revocation was based. His parole was revoked based on an official determination that he com mitted the crime of forcible rape. 1

    Assuming, as the Court does, that he had standing to bring that challenge while he remained in prison, the mootness question, as framed by the Court, is whether he continues to have "a personal stake in the outcome of the lawsuit" that is likely to be redressed by a favorable decision. Ante , at 5. 2

    Given the serious character of a finding that petitioner is guilty of forcible rape, that question must be answered affirmatively. It may well be true that many prisoners have already caused so many self-inflicted wounds to their good names that an additional finding of guilt may have only a de minimis impact on their reputations. I do not believe, however, that one can say that about a finding that an individual has committed a serious felony. 3 Moreover, even if one may question the wisdom of providing a statutory remedy to redress such an injury, I surely cannot accept the view that an interest in vindicating one's reputation is constitutionally insufficient 4

    to qualify as a "personal stake in the outcome." 5

    Indeed, in light of the fact that we have held that an interest in one's reputation is sufficient to confer standing, 6

    it necessarily follows that such an interest is sufficient to defeat a claim of mootness. 7 Accordingly, I respectfully dissent. 8


    Footnotes

    [ Footnote 1 ] Specifically, according to petitioner's brief, he contended: "1. The Board denied him his right to a preliminary revocation hearing on the armed criminal action accusation. . . . 2. The Board denied him a hearing on the cancellation of his conditional release date. 3. The Board . . .: a. . . . denied him the right to confront and cross-examine any of the witnesses against him. . . . b. . . . gave him no notice that the entire case for revoking his parole would be the out-of-court statements in the violation report. c. . . . denied him the right to representation by a person of his choice. 4. The Board failed to apprise him of the fact of its decision to revoke his parole, and of the evidence it relied on in doing so, for four months, when its regulations required that . . . the parolee be provided [such a] statement within ten working days from the date of the decision." See Brief for Petitioner 5-6.

    [ Footnote 2 ] By the time the case reached the Eighth Circuit, petitioner was once again in prison, this time serving a 7-year sentence for attempted felony stealing. He is still there, and the State informs us that he is scheduled to be released on parole on January 24, 1999. See Brief for Respondents 8, n. 4.

    [ Footnote 3 ] Sibron also purported to rely on Morgan and Fiswick supra , as establishing that a "mere possibility" of collateral consequences suffices, see 392 U.S., at 54 -55, but as we have described, those cases involved much more than that.

    [ Footnote 4 ] The internal quotation is from a portion of Flast v. Cohen, 392 U. S. at 95, which recited this to be the second purpose of the case-orcontroversy requirement in general. The opinion later said that the constitutionally required minimum of standing relates to the first purpose alone. Id., at 100-101, quoted in text.

    [ Footnote 5 ] The Court pointed out in Lane that respondents were attacking only their parole sentences, and not their convictions, see 455 U.S., at 631 . That was evidently for the purpose of excluding direct application of Sibron . The Court also pointed out, near the conclusion of its opinion, that respondents were not attacking "the finding that they violated the terms of their parole." 455 U.S., at 633 . This is not framed as an independent ground for the decision, and if it were such most of the opinion would have been unnecessary. The Court did not contest the dissenters' contention that "respondents . . . seek to have the parole term declared void, or expunged," id. , at 635 (Marshall, J., dissenting), which "would have the effect of removing respondents' parole-violation status and would relieve respondents of the collateral consequences flowing from this status," id. , at 636, n. 1.

    [ Footnote 6 ] Federal Rule of Evidence 405 provides, in relevant part, that "[i]n cases in which character or a trait of character of a person is an essential element of a charge, claim, or defense, proof may . . . be made of specific instances of that person's conduct."

    [ Footnote 7 ] Federal Rule of Evidence 413 provides, in relevant part, that "[i]n a criminal case in which the defendant is accused of an offense of sexual assault, evidence of the defendant's commission of another offense or offenses of sexual assault is admissible, and may be considered for its bearing on any matter to which it is relevant."

    [ Footnote 8 ] The dissent asserts that "a finding that an individual has committed a serious felony" renders the "interest in vindicating . . . reputation . . . constitutionally [s]ufficient" to avoid mootness. Post, at 2, 3. We have obviously not regarded it as sufficient in the past-even when the finding was not that of a parole board, but the much more solemn condemnation of a full-dress criminal conviction. For that would have rendered entirely unnecessary the inquiry into concrete collateral consequences of conviction in many of our cases, see, e.g. Benton,

    [ Footnote 395 ] U. S., at 790-791; Carafas, 391 U.S., at 237 -238; Fiswick, 329 U. S. , at 220-222, and unnecessary as well (at least as to felony convictions) Sibron 's presumption of collateral consequences, see supra, at 6-9. Of course there is no reason in principle for limiting the dissent's novel theory to felonies: If constitutionally adequate damage to reputation is produced by a parole board's finding of one more felony by a current inmate who has spent six of the last seven years in custody on three separate felony convictions, surely it is also produced by the criminal misdemeanor conviction of a model citizen. Perhaps for obvious reasons, the damage to reputation upon which the dissent would rest its judgment has not been asserted before us by petitioner himself.

    [ Footnote * ] The convict given a fine alone, however onerous, or sentenced to a term too short to permit even expeditious litigation without continuances before expiration of the sentence, would always be ineligible for 1983 relief. See Heck v. Humphrey, 512 U.S. 477, 500 (1994) (SOUTER, J., concurring in judgment).

    [ Footnote 1 ] Throughout the parole revocation proceedings, it was alleged that petitioner violated three parole conditions: Parole Condition 1, because he allegedly was guilty of rape; Parole Condition 6, because he allegedly used or possessed crack cocaine; and Parole Condition 7, because he allegedly used or possessed a dangerous weapon ( i.e. , the screwdriver allegedly used during the rape). App. 60-64 (alleging violations of Conditions 1, 6, and 7); id., at 72-76 (same); id., at 112-114 (alleging violations of Conditions 1 and 6). Thus, when the parole revocation board declared, "after careful consideration of evidence presented," that petitioner violated Parole Conditions 1, 6, and S 1564 3161 (#7) ) id., at 55-56, it found that petitioner was guilty of forcible rape. See also Brief for Respondents 1 ("Spencer violated condition 1 by committing the crime of rape"). In addition, even apart from the rape finding, it is undisputed that the board found that petitioner used or possessed drugs, and that he used or possessed a dangerous weapon (which was only alleged to have been used during the rape). App. 5556.

    [ Footnote 2 ] The "personal stake in the outcome" formulation of the test, which has been repeatedly quoted in our cases, was first articulated in this excerpt from the Court opinion in Baker v. Carr , 369 U.S. 186, 204 (1962): "Have the appellants alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions? This is the gist of the question of standing."

    [ Footnote 3 ] See, e.g. Liberty Lobby, Inc. v. Anderson , 746 F. 2d 1563, 1568 (CADC 1984) (Scalia, J.) ("It is shameful that Benedict Arnold was a traitor; but he was not a shoplifter to boot, and one should not have been able to make that charge while knowing its falsity with impunity. . Even the public outcast's remaining good reputation, limited in scope though it may be, is not inconsequential"), vacated and remanded, on other grounds, 477 U.S. 242 (1986).

    [ Footnote 4 ] While an individual may not have a "property" or "liberty" interest in his or her reputation so as to trigger due process protections, Paul v. Davis, 424 U.S. 693, 712 (1976), that question is obviously distinct from whether an interest in one's reputation is sufficient to defeat a claim of mootness.

    [ Footnote 5 ] As we have stated, "[T]he individual's right to the protection of his own good name 'reflects no more than our basic concept of the essential dignity and worth of every human being-a concept at the root of any decent system of ordered liberty.' " Gertz v. Robert Welch, Inc.,

    [ Footnote 418 ] U. S. 323, 341 (1974) (quoting Rosenblatt v. Baer, 383 U.S. 75, 92 (1966) (Stewart, J., concurring)); see also Milkovich v. Lorain Journal Co., 497 U.S. 1, 12 (1990) (" '[H]e that filches from me my good name / Robs me of that which not enriches him, And makes me poor indeed' " (quoting W. Shakespeare, Othello, act III, sc. 3)); Paul v. Davis,

    [ Footnote 424 ] U. S. 693, 706 (1976) ("The Court has recognized the serious damage that could be inflicted by branding a government employee as 'disloyal,' and thereby stigmatizing his good name"); Wisconsin v. Constantineau, 400 U.S. 433, 437 (1971) (emphasizing the importance of "a person's good name, reputation, honor, [and] integrity"; holding that respondent was entitled to due process before notices were posted stating that he was prohibited from buying or receiving alcohol); In re Winship,

    [ Footnote 397 ] U. S. 358, 363-364 (1970) ("[B]ecause of the certainty that [one found guilty of criminal behavior] would be stigmatized by the conviction . . ., a society that values the good name and freedom of every individual should not condemn a man for commission of a crime when there is reasonable doubt about his guilt"); Wieman v. Updegraff, 344 U.S. 183, 190 -191 (1952) ("There can be no dispute about the consequences visited upon a person excluded from public employment on disloyalty grounds. In the view of the community, the stain is a deep one; indeed, it has become a badge of infamy"). Indeed, vindicating one's reputation is the main interest at stake in a defamation case, and that interest has always been held to constitute a sufficient "personal stake." See, e.g. Paul , 424 U.S., at 697 ("[R]espondent's complaint would appear to state a classical claim for defamation actionable in the courts of virtually every State. Imputing criminal behavior to an individual is generally considered defamatory per se , and actionable without proof of special damages"); Gertz , 418 U.S., at 349 -350 ("We need not define 'actual injury' . . . . Suffice it to say that actual injury is not limited to out-of-pocket loss. Indeed, the more customary types of actual harm inflicted by defamatory falsehood include impairment of reputation and standing in the community, personal humiliation, and mental anguish and suffering"); L. Eldredge, Law of Defamation 53, pp. 293-294 (1978) ("There is no doubt about the historical fact that the interest in one's good name was considered an important interest requiring legal protection more than a thousand years ago; and that so far as Anglo-Saxon history is concerned this interest became a legally protected interest comparatively soon after the interest in bodily integrity was given legal protection").

    [ Footnote 6 ] Meese v. Keene, S. 465, 472-477 (1987).

    [ Footnote 7 ] There are compelling reasons for a court to consider petitioner's challenge to the parole board's findings sooner rather than later. As we stated in a related context: "The question of the validity of a criminal conviction can arise in many contexts, and the sooner the issue is fully litigated the better for all concerned. It is always preferable to litigate a matter when it is directly and principally in dispute, rather than in a proceeding where it is collateral to the central controversy. Moreover, litigation is better conducted when the dispute is fresh and additional facts may, if necessary, be taken without a substantial risk that witnesses will die or memories fade. And it is far better to eliminate the source of a potential legal disability than to require the citizen to suffer the possibly unjustified consequences of the disability itself for an indefinite period of time before he can secure adjudication of the State's right to impose it on the basis of some past action." Sibron v. New York, 392 U.S. 40, 56 -57 (1968) (citation omitted). I also believe that, on the facts of this case, there are sufficient tangible consequences to the parole board's findings so as to defeat a claim of mootness.

    [ Footnote 8 ] Given the Court's holding that petitioner does not have a remedy under the habeas statute, it is perfectly clear, as JUSTICE SOUTER explains, that he may bring an action under 1983.

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