CASES ADJUDGED
IN THE
SUPREME COURT OF THE UNITED STATES
AT
OCTOBER TERM, 1997
Syllabus
SPENCER
v. KEMNA, SUPERINTENDENT, WESTERN MISSOURI
CORRECTIONAL CENTER, ET 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 3-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parole, but on September 24, 1992, that parole was revoked and he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. Pp.7-18.
(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 col-
I
2
Syllabus
lateral 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. 7-14.
(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. 14-16.
(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. 17-18.
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,
post, p.
18. GINSBURG, J., filed a concurring opinion,
post, p. 21.
STEVENS, J., filed a dissenting opinion,
post, p. 22.
John William Simon, by appointment of the Court, 520 U.
S. 1227, argued the cause and filed briefs for petitioner.
James R. Layton, Chief Deputy Attorney General of
Missouri, argued the cause for respondents. With him on the brief
were
Jeremiah W (Jay) Nixon, Attorney General,
pro
3
se, and Stephen D. Hawke, Stacy L. Anderson, and Michael J.
Spillane, Assistant Attorneys General. *
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:
"NOW; THEREFORE, after careful consideration of evidence
presented, said charges which warrant revocation are sustained, to
wit:
* A brief of
amici curiae was filed for the State of
California et al. by
Daniel E. Lungren, Attorney General of
California,
George Williamson, Chief Assistant Attorney
General,
Ronald A. Bass, Senior Assistant Attorney General,
and
Morris Beatus and
Peggy S.
Ruffra, Deputy
Attorneys General, and by the Attorneys General for their
respective States as follows:
Bruce M. Botelho of Alaska,
Grant Woods of Arizona,
Thurbert E. Baker of Georgia,
Margery S.
Bronster of Hawaii,
Jeffrey A.
Modisett of Indiana,
Thomas J.
Miller of Iowa,
Scott Harshbarger of Massachusetts,
Frank J.
Kelley of Michigan,
Joseph P. Mazurek of Montana,
Don Stenberg of Nebraska,
Frankie Sue Del Papa of
Nevada,
Heidi Heitkamp of North Dakota,
W A. Drew
Edmondson of Oklahoma,
D. Michael Fisher of
Pennsylvania,
Charles M. Condon of South Carolina, and
Jan Graham of Utah.
4
"#l-LAWS: I will obey all federal and state laws, municipal and
county ordinances. I will report all arrests to my Probation and
Parole Officer within 48 hours.
"#6-DRUGS: I will not have in my possession or use any
controlled substance except as prescribed for me by a licensed
medical practitioner.
"#7-WEAPONS: I will, if my probation or parole is based on a
misdemeanor involving firearms or explosives, or any felony charge,
not own, possess, purchase, receive, sell or transport any
firearms, ammunition or explosive device or any dangerous weapon as
defined by federal, state or municipal laws or ordinances." 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," id., at 75, Officer Tintinger's
report tentatively recommended that petitioner's parole be
continued, but that he be
5
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, followup
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 De Kalb
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
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]
6
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 because 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),
statement within ten working days from the date of the
decision." See Brief for Petitioner 5-6.
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.
7
and
Robbins v.
Christianson, 904
F.2d 492 (CA91990).) We granted certiorari. 520 U. S. 1165
(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.
La Vallee, 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 parole-some "collateral consequence" of the
conviction-must exist if the suit is to be maintained. See,
e.
g., Carafas, supra, at 237-
8
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 proved 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 completed 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
9
longer affects legal rights does not present a case or
controversy for appellate review."
Ibid. Similarly, in
Carafas v.
La Vallee, 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:
"It is clear that petitioner's cause is not moot. In consequence
of his conviction, he cannot engage in certain businesses; he
cannot serve as an official of a labor union for a specified period
of time; he cannot vote in any election held in New York State; he
cannot serve as a juror." 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
10
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
3
Sibron also purported to rely on
United States
v.
Morgan, 346
U. S. 502 (1954), and
Fiswick v.
United States,
329 U. S. 211
(1946), 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.
11
'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)
(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:
"The question whether a particular person is a proper party to
maintain the action does not, by its own force, raise separation of
powers problems related to improper judicial interference in areas
committed to other branches of the Federal Government. Such
problems arise, if at all, only from the substantive issues the
individual seeks to have adjudicated. Thus, in terms of Article III
limitations on federal court jurisdiction, the question of standing
is related only to whether the dispute sought to be adjudicated
will be presented in an adversary context and in a form
historically viewed as capable of judicial resolution." Id.,
at 100-10l.
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 acknowledgment
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 Separation of Church and State, Inc.,
12
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:
"The doctrine of Carafas and Sibron is not
applicable in this case. No civil disabilities such as those
present in Carafas result from a finding that an individual
has violated his parole." Id., at 632.
"[CarafasJ concerned existing civil disabilities; as a
result of the petitioner's conviction, he was presently
4 The internal quotation is from a portion of
Flast v.
Cohen, 392 U.
S. 83, 95 (1968), 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.
13
barred from holding certain offices, voting in state elections,
and serving as a juror. This case involves no such disability."
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 presence 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
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
14
We adhere to the principles announced in
Lane, and
decline to presume that collateral consequences adequate to meet
Article Ill'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
parolee,] [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 candidate will not conform to
reasonable conditions of parole." 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).
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.
15
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, getting caught, and being 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.
"[WJe are ... unable to conclude that the case-orcontroversy
requirement is satisfied by general assertions or inferences that
in the course of their activities respondents will be prosecuted
for violating valid criminal laws. We assume that respondents will
conduct their activities within the law and so avoid prosecution
and conviction." 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 4056 (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 proceed-
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."
7Federal 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 of-
16
ing. 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
fenses of sexual assault is admissible, and may be considered
for its bearing on any matter to which it is relevant."
8The 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 23, 24. 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 v.
Maryland, 395
U. S. 784, 790-791
(1969); Carafas v.
La Vallee,
391 U. S. 234,
237-238 (1968);
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 8-10. 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
17
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 Rev. Stat.
§ 1979, 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. 641, 645-649
(1997); id., at 649-650 (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 for
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), in turn quoting
Weinstein v.
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.
18
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.
JUSTICE SOUTER, with whom JUSTICE O'CONNOR, JUSTICE GINSBURG,
and 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 ade-
19
quate 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 v.
Humphrey, 512 U. S., 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
20
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 v.
Humphrey, 512 U.
S., at 497. 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 maliciousprosecution 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. 641 (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
21
§ 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.
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. 512 U. S., 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
*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).
22
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.
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)
(opinion of STEVENS, J.). See
ante, at 12-16.
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 committed the crime of
forcible rape.1 Assuming, as the Court does,
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 vio-
23
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 7.2
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
lated Parole Conditions #1, #6, and #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.55-56.
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."
3 See,
e. g.,
Liberty Lobby, Inc. v.
Anderson, 746 F.2d
1563, 1568 (CADC 1984) (opinion of 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).
24
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
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.
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., 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, 424 U. S., at 706 ("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,
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
25
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
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").
6
Meese v.
Keene, 481 U. S. 465, 472-477
(1987).
7There 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.
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 42 U. S. C. §
1983.
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