United States District Court, E.D. Arkansas, Pine Bluff Division
WILBERT L. JOHNSON PETITIONER
v.
WENDY KELLEY, Director, Arkansas Department of Correction RESPONDENT
RECOMMENDED DISPOSITION
I.
Procedure for Filing Objections:
This
Recommended Disposition (“Recommendation”) has
been sent to Chief Judge Brian S. Miller. Either party to
this suit may file written objections with the Clerk of
Court, but to be considered, objections must be received
within 14 days of the filing of this Recommendation.
Objections should be specific and should include the factual
or legal basis for the objection.
By not
objecting, any right to appeal questions of fact may be
jeopardized. And, if no objections are filed, Judge Miller
can adopt this Recommendation without independently reviewing
the record.
II.
Background:
In
April 2008, a Pulaski County Circuit Court jury found
Petitioner Wilbert Johnson guilty of breaking-and-entering,
theft of property, and fleeing. As a result, he was sentenced
to 15 years' imprisonment. (Docket entry #7-2) Following
the jury's verdict, Mr. Johnson entered a guilty plea in
a separate case to theft-by-receiving and fleeing charges. He
was sentenced to 25 years' imprisonment on those charges,
with that sentence to run concurrently with the other
sentence. (#7-3).
Mr.
Johnson was paroled on September 22, 2017. (#7-4) After
allegedly violating several conditions of his release (#7-5),
Arkansas Community Correction held a sanction hearing and
determined that Mr. Johnson had violated four conditions of
release. (#7-6) Mr. Johnson's appeal of that ruling was
rejected (#7-7), and he was directed to spend 180 days in a
Supervised Sanction Program (“SSP”). (#7-6, #7-7)
Once in
the SSP, Mr. Johnson violated program rules by assaulting a
fellow resident - specifically, by choking the resident.
(#7-8) As a consequence, a parole-revocation hearing was held
on March 19, 2018, and, after hearing evidence, the hearing
officer determined that Mr. Johnson had violated the
conditions of his parole. (Id.) The Parole Board
affirmed the revocation of Mr. Johnson's parole (#7-9);
and Mr. Johnson did not appeal that decision to the state
courts.
Mr.
Johnson filed this 28 U.S.C. § 2254 petition for writ of
habeas corpus on November 13, 2018. (#2) Reading the petition
broadly, he claims that his parole was improperly revoked,
relying solely on events that led to his placement in SSP. He
is silent as to the assault he committed in the SSP that
triggered the revocation of his parole. (#2 at 10-16) At the
time he initiated this petition, Mr. Johnson was incarcerated
at the Tucker Unit of the ADC. (#2 at 1, #7-10)
Director
Kelley has responded to the petition, arguing that the case
is now moot given that Mr. Johnson was again paroled on
December 12, 2018. (#7, #7-10 at 1-9) Alternatively, Director
Kelley contends that the claim raised in the habeas petition
is procedurally defaulted. Mr. Johnson has not
replied.[1]
III.
Discussion:
A.
Mootness
To
sustain a challenge to parole revocation, Mr. Johnson must
show a “continuing injury” resulting from the
alleged wrongful revocation. Spencer v. Kemna, 523
U.S. 1, 7-8 (1998). At the time Mr. Johnson filed his
petition, incarceration was the injury that sustained his
petition. As noted, however, he is no longer incarcerated.
In the
parole revocation context, Mr. Johnson is not subject to a
continuing injury. Id. Under Supreme Court
precedent, “continuing injury” in habeas corpus
cases is quite narrowly construed. For example, the
possibility of detriment at a future parole hearing, of an
enhanced sentence at a future hearing, or of impeachment of
future testimony are all insufficient to show a continuing
injury. Likewise, the inability to pursue damages for
wrongful revocation, [2] and even the state's intentional delay
of habeas proceedings for the purpose of mooting a petition,
are not enough. Id. at 14-18.
Here,
there is no case or controversy at issue under Article III,
§ 2, of the Constitution. Id. at 14. In the
absence of a case or controversy, this Court lacks
jurisdiction to address Mr. Johnson's petition. Because
Mr. Johnson has already served the incarceration period
triggered by the revocation of his parole and has since been
released, his challenge to that sentence is moot. In short,
...