Mario Abreu v. Superintendent Smithfield SCI ( 2020 )

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
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No. 17-2442
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MARIO ABREU,
Appellant
v.
SUPERINTENDENT SMITHFIELD SCI;
PA STATE ATTORNEY GENERAL
________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civil No. 1:15-cv-01465)
District Judge: Sylvia H. Rambo
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Argued: February 5, 2020
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Before: CHAGARES, RESTREPO, and BIBAS, Circuit
Judges
(Filed: August 19, 2020)
Diana Stavroulakis [ARGUED]
262 Elm Court
Pittsburgh, PA 15237
Counsel for Appellant
Hugh J. Burns, Jr. [ARGUED]
Office of Attorney General of Pennsylvania
1600 Arch Street
Suite 300
Philadelphia, PA 19103
Philip M. McCarthy
Office of Attorney General of Pennsylvania
Appeals & Legal Services
Strawberry Square
16th Floor
Harrisburg, PA 17120
Counsel for Appellees
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OPINION OF THE COURT
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CHAGARES, Circuit Judge.
Mario Abreu appeals from the District Court’s order
denying his petition for a writ of habeas corpus filed pursuant
to 28 U.S.C. § 2254. The Commonwealth of Pennsylvania
(“Commonwealth”) argues on appeal that Abreu’s habeas
petition is moot because after the notice of appeal was filed in
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this Court, federal authorities removed Abreu to the Dominican
Republic, and a federal conviction not at issue here
permanently bars Abreu’s reentry to the United States. For the
following reasons, we will vacate and remand with instructions
to dismiss the petition as moot.
I.
In April of 2004, Abreu was charged by the
Commonwealth with twenty-two drug-related counts, which
alleged that he sold cocaine, marijuana, and ecstasy in
Northumberland, Snyder, and surrounding counties. After a
five-day trial, a jury found Abreu guilty on all counts, and he
was sentenced to an aggregate term of twenty-seven to fifty-
four years of imprisonment. The court ordered that sentence
to run consecutively to a federal sentence Abreu was currently
serving after a 2003 arrest. Abreu appealed, and the Superior
Court of Pennsylvania affirmed. Abreu did not appeal that
ruling.
Abreu later sought relief under the Pennsylvania Post
Conviction Relief Act (“PCRA”), also to no avail. Then, on
July 29, 2015, Abreu filed a habeas petition under 28 U.S.C.
§ 2254 in the District Court. Abreu alleged that his PCRA
counsel’s assistance was ineffective in failing to assert that his
trial counsel had rendered ineffective assistance. The
Magistrate Judge recommended that the District Court deny
Abreu’s habeas petition because his claims were “barred by the
doctrine of procedural default,” and he “has not established
cause and prejudice sufficient to overcome this default”
because his claims “are without merit.” Appendix (“App.”)
35–36. The District Court adopted this recommendation in its
entirety.
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Abreu timely appealed, and we granted a certificate of
appealability (“COA”) “as to [Abreu’s] claim that trial counsel
performed ineffectively by failing to challenge the admission
of . . . grand jury testimony.” App. 2. We later expanded the
COA to include Abreu’s claim that “trial counsel performed
ineffectively by failing to seek to strike testimony from [a
police officer] recounting statements made by [other
individuals].” App. 4.
While Abreu’s appeal was pending in this Court,
however, he was removed from the United States. On May 9,
2019, the Pennsylvania Board of Probation and Parole granted
Abreu’s application for early parole under 61 Pa. Cons. Stat.
§ 6143, which allows for the early parole of inmates subject to
a federal removal order. Abreu was released to the custody of
U.S. Immigration and Customs Enforcement, and then
removed to the Dominican Republic in June 2019.
II.
The District Court had jurisdiction under 28 U.S.C.
§§ 2241 and 2254, and Abreu claims that we have appellate
jurisdiction under 28 U.S.C. §§ 1291 and 2253. As always,
though, “we must satisfy ourselves that we have jurisdiction.”
Elliott v. Archdiocese of N.Y., 682 F.3d 213, 219 (3d Cir.
2012). And our standard of review concerning questions of our
own jurisdiction, including whether a claim has been rendered
moot, is plenary. See Papotto v. Hartford Life & Accident Ins.,
731 F.3d 265, 269 (3d Cir. 2013).
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III.
Abreu appeals the District Court’s denial of a writ of
habeas corpus, but we can only review that order if there is a
live case or controversy under Article III of the United States
Constitution. So, we address that threshold question.
The Commonwealth contends that because Abreu has
been removed, his habeas petition must be dismissed as moot.
It argues that regardless of whether Abreu obtains habeas relief
from his state court conviction — the conviction at issue in his
petition — he is barred permanently from reentering the United
States because of his 2003 federal heroin trafficking conviction
under 21 U.S.C. § 846, which Abreu does not challenge in this
appeal. Abreu, on the other hand, claims that his habeas
petition is not moot despite his removal to the Dominican
Republic. Specifically, Abreu contends that because he
continues to suffer collateral consequences from the state
conviction at issue in his underlying petition, his appeal still
presents a live controversy. We agree with the
Commonwealth.
“Article III of the Constitution limits federal ‘judicial
Power’ to the adjudication of ‘Cases’ or ‘Controversies.’” Toll
Bros., Inc. v. Twp. of Readington, 555 F.3d 131, 137 (3d Cir.
2009) (quoting U.S. Const. art. III, § 2). For a case or
controversy to exist, a petitioner, throughout each stage of the
litigation, “must have suffered, or be threatened with, an actual
injury traceable to the defendant and likely to be redressed by
a favorable judicial decision.” DeFoy v. McCullough, 393
F.3d 439, 442 (3d Cir. 2005) (quoting Lewis v. Cont’l Bank
Corp., 494 U.S. 472, 477 (1990)). As a result, a habeas corpus
petition generally becomes moot when a prisoner is released
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from custody because the petitioner has received the relief
sought. See id. at 441.
Nevertheless, a habeas petitioner who has been released
may obtain judicial review of a petition by showing that he
continues to suffer from secondary or collateral consequences
of his conviction. See Chong v. Dist. Dir., INS, 264 F.3d 378,
384 (3d Cir. 2001); see also Spencer v. Kemna, 523 U.S. 1, 7
(1998) (explaining that a habeas petitioner who is no longer in
custody must demonstrate a “concrete and continuing injury”
that is a “collateral consequence” of the conviction to satisfy
the case-or-controversy requirement). But once a petitioner
has been released, we do not presume that a conviction carries
collateral consequences. See Burkey v. Marberry, 556 F.3d
142, 148 (3d Cir. 2009). Rather, as the Supreme Court has
instructed, we must “address[] the issue of collateral
consequences in terms of the ‘likelihood’ that a favorable
decision would redress the injury or wrong.” Id. (citing
Spencer, 523 U.S. at 14–16; Lewis, 494 U.S. at 477–78). It is
not enough if “collateral consequences proffered by the
petitioner” amount to “a possibility rather than a certainty or
even a probability.” Id. (quoting Spencer, 523 U.S. at 14–16).
Abreu points to several possible collateral
consequences from his state conviction, which he argues cause
a continuing injury sufficient to save his petition from
mootness. Abreu contends first that his state conviction, as it
stands, prevents him from applying for reentry into the United
States under 8 U.S.C. § 1182(a)(2), which renders inadmissible
aliens convicted of certain crimes. And, Abreu posits, if he
reenters, he will have to serve out the maximum balance of his
state sentence, and he will be subject to further prosecution
under 8 U.S.C. § 1326, which prohibits the unauthorized
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reentry of removed aliens. As explained below, however, none
of these proposed collateral consequences are sufficient to
avoid a mootness determination under these circumstances,
where Abreu has a federal conviction that separately bars him
from reentering the United States and is not challenged in this
appeal.
A.
Abreu asserts that because he has been removed, his
state conviction prevents him from applying for reentry into
the United States. We are not convinced.
This Court has previously determined that a habeas
petition is not moot simply because the petitioner has been
removed. See Chong, 264 F.3d at 385–86; Steele v. Blackman,
236 F.3d 130, 134 n.4 (3d Cir. 2001). As we have explained,
“[w]here a petition for a writ of habeas corpus is filed and
subsequently the petitioner is released from custody, habeas
corpus jurisdiction may be sustained where serious collateral
consequences flow from the conviction.” Steele, 236 F.3d at134 n.4. In concluding that the petitions in Steele and Chong
were not moot, we determined that the petitioners had alleged
facts sufficient to show continuing injuries and serious
collateral consequences because their convictions prevented
their reentry to the United States. See Chong, 264 F.3d at 386(“[W]e hold that [the petitioner’s] inability to reenter the
United States for ten years after her deportation is a sufficient
collateral consequence stemming from the Board’s order of
removal to render [the] petition justiciable under Article III,
§ 2.”); Steele, 236 F.3d at 134 n.4 (“Erroneous conviction of
an aggravated felony will have several continuing and serious
legal consequences for [an alien], including serving as a
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permanent bar preventing his return to the United States to visit
his family.”). And this is for good reason: removal or
deportation has long been recognized as a particularly severe
penalty. See, e.g., Bridges v. Wixon, 326 U.S. 135, 147 (1945)
(“[D]eportation may result in the loss of all that makes life
worth living.” (quotation marks omitted)).
But we hold today that there is an exception to this
general rule. A habeas petition does not continue to present a
live controversy once the petitioner has been removed if the
grounds for habeas relief will not redress the collateral
consequences complained of by the petitioner. That is the case
we are presented with here. Although Abreu claims he is
similarly situated to the petitioners in Steele and Chong
because his state conviction prevents his reentry into the
United States, this argument ignores a key difference: Abreu’s
criminal history. He, unlike the petitioners in Steele and
Chong, is also barred from reentry based on a different
conviction that separately renders him inadmissible under
federal law. See 8 U.S.C. § 1182(a)(2)(C)(i) (“Any alien who
. . . is or has been an illicit trafficker in any controlled substance
. . . or is or has been a knowing aider, abettor, assister,
conspirator, or colluder with others in the illicit trafficking in
any such controlled or listed substance . . . is inadmissible.”);
see also 21 U.S.C. § 812(c) (identifying heroin as a Schedule I
controlled substance under subsection (b)(10)). Thus, Abreu
cannot reenter the United States because of his federal
conviction, wholly apart from his state conviction, and the
relief he currently seeks will do nothing to change this fact.
Our analysis accords with that by the Court of Appeals
for the Second Circuit in a factually similar case. See Perez v.
Greiner, 296 F.3d 123 (2d Cir. 2002). In Perez, a habeas
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petitioner challenged his state robbery conviction. He
appealed the denial of his habeas petition, but he was removed
to the Dominican Republic while his appeal was pending. The
government argued that Perez’s deportation made his petition
moot because he previously had been convicted of a separate,
drug-related offense that “render[ed] him permanently
inadmissible to the United States.” Id. at 126.
The Court of Appeals for the Second Circuit agreed,
holding that “[b]ecause Perez is permanently barred from this
country on a wholly separate ground, the currently challenged
robbery conviction can have no meaningful effect on his
admissibility and hence cannot serve as a possible collateral
consequence.” Id. It held that the habeas petition was,
therefore, moot “because Perez is permanently inadmissible to
this country due to his prior drug conviction, [so] collateral
consequences cannot arise from the challenged robbery
conviction.” Id.; cf. Pola v. United States, 778 F.3d 525, 530
n.3 (6th Cir. 2015) (noting in dicta that “[i]f [petitioner] were
permanently inadmissible to the United States based on ‘a
wholly separate’ prior criminal conviction, then we might
evaluate mootness considerations differently”).
The same is true here. In 2003, Abreu was convicted in
the United States District Court for the Southern District of
Florida of conspiracy to possess with intent to distribute one
kilogram or more of heroin. This federal drug trafficking
conviction permanently prevents Abreu from returning to the
United States, regardless of the validity of Abreu’s state
conviction at issue in his habeas petition. See 8 U.S.C.
§ 1182(a)(2)(C)(i); 21 U.S.C. § 812(c).
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Abreu does not contest this conclusion. Instead, he
attempts to invert the applicable standard, arguing that he is
“only required to identify a continuing harm that may be
alleviated by the outcome of the appeal.” Abreu Letter 2 (Mar.
10, 2020) (emphasis added). But “the Supreme Court has
disapproved of [a] broad presumption of collateral
consequences without specific findings of injury-in-fact.”
Steele, 236 F.3d at 134 n.4 (citing Spencer, 523 U.S. at 7–17).
And the fact remains that, due to the existence of Abreu’s
federal drug trafficking conviction, no matter how we resolve
the instant appeal, that resolution will not alter his admissibility
status and thus will not alleviate his inability to apply for
reentry. 1 Cf. Pollard v. United States, 352 U.S. 354, 358
(1957) (explaining that “review in this Court will be allowed
only where its judgment will have some material effect”);
Blanciak v. Allegheny Ludlum Corp., 77 F.3d 690, 698–99 (3d
Cir. 1996) (“If developments occur during the course of
adjudication that . . . prevent a court from being able to grant
the requested relief, the case must be dismissed as moot.”).
1
Abreu relies on United States v. Sandoval-Enrique, 870 F.3d
1207 (10th Cir. 2017), to argue that his appeal is not moot. In
that case, the Court of Appeals for the Tenth Circuit held that
a petitioner’s challenge to his conviction was not moot even
though he had been removed and had prior convictions not at
issue in his appeal. That case, however, is distinguishable from
this one because in Sandoval-Enrique, the petitioner’s prior
convictions only barred him from seeking reentry to the United
States for twenty years. Here, by contrast, Abreu’s federal
conviction permanently bars him from reentering this country.
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B.
Nor are we persuaded by Abreu’s argument that he
suffers from fear that reentry would cause him to serve the
maximum remaining balance of his state sentence and would
subject him to federal prosecution for illegal reentry. These
are not valid collateral consequences: due to his federal
conviction, Abreu’s reentry to the United States would be a
new crime. See 8 U.S.C. § 1326(a) (providing that a removed
alien who “enters, attempts to enter, or is at any time found in,
the United States” without authorization commits a federal
offense). And collateral consequences that depend on an
individual committing a crime cannot “breathe life” into a
mooted controversy. United States v. Kissinger, 309 F.3d 179,
182 (3d Cir. 2002); see also Chong, 264 F.3d at 385 (rejecting
petitioner’s argument that “possible prosecution for felonious
entry” into the United States “creates sufficient collateral
consequences,” and granting relief on other grounds).
* * *
So, even if we were to rule in Abreu’s favor on his state
conviction, he would not be able to reenter the United States
because our decision would not impact Abreu’s federal
conviction. And this means that Abreu cannot show “an actual
injury . . . likely to be redressed by a favorable judicial
decision.” Lewis, 494 U.S. at 477; see also Abdala v. INS, 488
F.3d 1061, 1064 (9th Cir. 2007) (“For a habeas petition to
continue to present a live controversy after the petitioner’s
release or deportation, . . . there must be some remaining
‘collateral consequence’ that may be redressed by success on
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the petition.”).2 Without a collateral consequence of Abreu’s
state conviction that can be redressed by a favorable decision
on his petition, there is no case or controversy under Article
III, and the petition is moot.
IV.
For the foregoing reasons, we will vacate the District
Court’s order denying the petition and remand this case to the
District Court with instructions to dismiss the petition as moot.
2
Of course, our holding today does not apply to cases where
a removed petitioner’s return to the United States is barred by
the same conviction or convictions challenged in the habeas
proceeding, which may establish a live controversy under
Article III. See, e.g., Pola, 778 F.3d at 531 (holding that a
habeas petition was not moot despite petitioner’s removal
because he was inadmissible to the United States due to the
conviction challenged in his habeas petition); Alwan v.
Ashcroft, 388 F.3d 507, 511 (5th Cir. 2004) (holding that a
petition for review was not moot, even though petitioner had
been removed, because “[a]n important collateral consequence
of our decision in this case . . . is whether [petitioner] will be
permanently inadmissible to the United States”); Leitao v.
Reno, 311 F.3d 453, 456 (1st Cir. 2002) (explaining that “the
bar on readmission of a removed alien is a legally cognizable
collateral consequence that preserves a live controversy even
after deportation of the petitioner”).
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