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Parker v. Noe

United States District Court, S.D. Alabama, Southern Division

July 3, 2019

DARRELL PARKER Petitioner,
v.
GUY NOE, Respondent.

          REPORT AND RECOMMENDATION

          WILLIAM E. CASSADY UNITED STATES MAGISTRATE JUDGE

         Petitioner Darrell Parker (“Petitioner” or “Parker”), who proceeds pro se, has filed a petition that seeks habeas corpus relief under 28 U.S.C. § 2254 (“2254 Petition”). Doc. 1. The 2254 Petition, which has been fully briefed and is ripe for adjudication (Docs. 1 & 14), was referred to the undersigned Magistrate Judge for issuance of a report and recommendation, pursuant to 28 U.S.C. § 636(b); Rule 72, Federal Rules of Civil Procedure (hereinafter, “FRCP” followed by the Rule number); and S.D. Ala. GenLR 72(a)(2)(R). Based upon a thorough review of the 2254 Petition (Doc. 1) and the briefs and supporting materials, (Docs. 1, 14, & 23), the undersigned finds an evidentiary hearing is not warranted[1] and the 2254 Petition is due to be denied as moot. Accordingly, it is recommended Parker's 2254 Petition be denied as moot and judgment be entered in favor of Respondent and against Petitioner, and if Parker seeks the issuance of a certificate of appealability, his request be denied along with any request to appeal in forma pauperis.

         I. PROCEDURAL BACKGROUND

         On July 29, 1999, Parker was convicted of two (2) charges of unlawful distribution of a controlled substance and was sentenced to two (2) twenty-year (20) sentences by the Baldwin County Circuit Court. Doc. 14-10. Parker was paroled on March 17, 2015. Id. On August 17, 2015, Parker's parole officer prepared a Report of Parole Violation, in which he brought two (2) charges against Parker for (1) violation of Life Tech Rule 18 - positive drug and alcohol tests and (2) violation of Life Tech Rule 32 - resident's conduct or behavior results in a safety, security, or health hazard. Id. at 2-3. Parker was arrested on August 15, 2015 (id. at 3), and was given notice on August 19, 2015, of his parole court hearing, which was scheduled for August 24, 2015 (Doc. 14-11). Three witnesses were called at the hearing, including Parker. Doc. 14-12, at 2. The Parole Board found there was insufficient evidence to support Parker's first charge based on the testimony that a drug test was not administered, but found him guilty of his second charge based on the testimony that he was not acting as himself and was aggressive. Id. at 2-5. Based on the Parole Board's findings, Parker's parole was revoked on September 30, 2015. Doc. 14-13.

         On October 21, 2015, Parker filed his Writ of Certiorari in the Circuit Court of Montgomery County, in which he challenged the revocation of his parole by the Alabama Board of Pardons and Paroles (the “Parole Board”). Doc. 14-1, at 5-9. The Parole Board filed its Motion for Summary Judgment on April 17, 2016. Id. at 36-41. The Parole Board summarized Parker's Writ of Certiorari to state a due process violation claim based on his assertion that the Parole Board's decision to revoke his probation was based on insufficient evidence. Id. at 37. The Parole Board argued Parker was afforded due process because he was given notice of the hearing, and the charges against him, and he was found guilty of one of his noticed charges based on the testimony of an eyewitness, which was sufficient evidence for the Parole Board's decision. Id. at 38-39. The Circuit Court granted the Parole Board's Motion for Summary Judgment and dismissed Parker's petition on April 20, 2016. Doc. 14-2, at 12. Parker filed his Notice of Appeal on May 10, 2016. Id. at 40.

         Parker filed his appellate brief with the Alabama Court of Criminal Appeals on July 28, 2016. Doc. 14-3. In his appellate brief, Parker again argued his petition for a writ of certiorari was improperly revoked because there was insufficient evidence. See id. The Parole Board filed its response brief on August 29, 2016 (Doc. 14-4), and the Court of Criminal Appeals affirmed the circuit court's judgment (Doc. 14-5). Parker's Application for Rehearing was overruled by the Court of Criminal Appeals on November 18, 2016 (Doc. 14-6), and a Certificate of Judgment was issued on December 7, 2016 (Doc. 14-7).

         Parker filed his instant 2254 Petition on June 6, 2017, in which he alleges violations of his due process rights, Sixth and Eighth Amendment rights, and discrimination, which are all based on his claim that his parole was improperly revoked. Doc. 1. Although Parker named many individuals as respondents to his 2254 Petition (see Doc. 1), the Court corrected his petition to reflect Warden Guy Noe (“Respondent” or “Noe”) is the properly named respondent (see Doc. 3, at 1 n.1). Respondent filed his Answer and Special Report on November 16, 2017 (Doc. 14), after the Court granted his motions for extension of time (see Docs. 8, 9, 12, & 13).

         On February 20, 2018, Parker filed a notice with the Court that his address had changed and he was released on parole. Doc. 16. On September 13, 2018, the Court issued an order, based on Parker's notice, for him to inform the Court whether he wanted to pursue this action and, if he did, why this action is not moot since he was released on parole. Doc. 21. Parker responded to the Court's order he wanted to continue this action because he was wronged by witnesses at his parole revocation hearing. Doc. 23.

         STANDARD OF REVIEW

         Article III of the Constitution, known as the case and controversies limitation, prevents federal courts from deciding moot questions because the Court lacks subject matter jurisdiction. U.S. Const. art. III, § 2; Coral Springs St. Sys., Inc. v. City of Sunrise, 371 F.3d 1320, 1327 (11th Cir. 2004). Mootness can occur due to a change in circumstances or a change in law. Id. at 1328. A case is also moot when the issue presented is no longer live, the parties lack a legally cognizable interest in its outcome, or a decision could no longer provide meaningful relief to a party. Troiano v. Supervisor of Elections in Palm Beach Cty., Fla., 382 F.3d 1276, 1282 (11th Cir. 2004) (citing Al Najjar v. Ashcroft, 273 F.3d 1330, 1335-36 (11th Cir. 2001)). “‘Th[e] 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.'” Spencer v. Kemna, 523 U.S. 1, 7, 118 S.Ct. 978, 983, 140 L.Ed.2d 43 (1998) (quoting Lewis v. Cont'l Bank Corp., 494 U.S. 472, 477-78, 110 S.Ct. 1249, 1254, 108 L.Ed.2d 400 (1990)). Dismissal is not discretionary but “‘is required because mootness is jurisdictional.'” Troiano, 382 F.3d at 1282 (quoting Al Najjar, 273 F.3d at 1336) . “Any decision on the merits of a moot case or issue would be an impermissible advisory opinion.” Id.

         Whether a habeas petition presents a case or controversy hinges on whether the petitioner suffers “collateral consequences” as a result of the conviction he challenges. See Spencer, 523 U.S. at 7, 118 S.Ct. at 983.

An incarcerated convict's (or a parolee's) challenge to the validity of his conviction always satisfies the case-or-controversy 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 parole-some “collateral consequence” of the conviction-must exist if the suit is to be maintained. See, e.g., Carafas [v. LaVallee, 391 U.S. 234');">391 U.S. 234, ] 237-38, 88 S.Ct. [1556, ] 1559-60[, 20 L.Ed.2d 554 (1968)].

Spencer, 523 U.S. at 7, 118 S.Ct. at 983. There is no presumption of collateral consequences that result from a parole revocation; it is for the petitioner to demonstrate collateral ...


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