Johnson v. Kelley

          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, ...