United States v. Donald Heisler ( 2020 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted September 17, 2020*
Decided September 18, 2020
Before
DAVID F. HAMILTON, Circuit Judge
MICHAEL B. BRENNAN, Circuit Judge
MICHAEL Y. SCUDDER, Circuit Judge
No. 20-1895
UNITED STATES OF AMERICA, Appeal from the United States District
Plaintiff-Appellee, Court for the Western District of Wisconsin.
v. No. 02-cr-135-bbc
DONALD HEISLER, Barbara B. Crabb,
Defendant-Appellant. Judge.
OR D E R
Donald Heisler, a federal prisoner, moved for compassionate release based on his
susceptibility to COVID-19 and desire to care for his ailing mother. Initially, the district
court denied his motion without prejudice to renewing it once he exhausted his
administrative remedies. After the government conceded that he had done so, the
district court denied Heisler’s motion on the merits. In the meantime, Heisler had
mailed a notice of appeal from the first order. We lack jurisdiction over his appeal,
however: Heisler has already received the relief he sought concerning the first order—a
*We have agreed to decide this case without oral argument because the briefs
and record adequately present the facts and legal arguments, and oral argument would
not significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
No. 20-1895 Page 2
ruling on the merits—and he did not perfect an appeal of the second. Therefore, we
dismiss his appeal as moot.
In April 2020, Heisler moved for compassionate release under 18 U.S.C.
§ 3582(c)(1)(A), arguing, among other things, that his heightened susceptibility to
COVID-19 (due to hypertension and obesity) and his mother’s grave illness merited his
release. The government opposed Heisler’s motion because, it believed, he had failed to
exhaust his administrative remedies within the Bureau of Prisons before suing.
On May 13, the district court denied Heisler’s motion for failure to exhaust
without prejudice to re-filing. Although Heisler had unsuccessfully sought relief from
the warden, the court noted, he could still appeal within the prison system. The court
also stated that, should he renew his motion after exhausting his remedies, Heisler
should provide medical records and other support, formulate a release plan, and
address the factors in 18 U.S.C. § 3553(a) to help the court evaluate the merits.
From there, the case’s procedural history gets slightly complicated. Around
May 15, Heisler tendered two motions to staff at his prison (the United States
Penitentiary in Florence, Colorado). In the first, labeled a motion for a continuance,
Heisler expanded on his reasons for seeking compassionate release. He detailed his
mother’s quickly declining health (he reported that she has stage III lung cancer) and
his plan to care for her, explained where he would live if released, and agreed to be
subject to electronic monitoring. He asked for a continuance pending appointment of
counsel and, in the alternative, for the court to grant his motion for compassionate
release. In his second motion, Heisler sought a stay of the proceedings and an order that
he be provided with documents from the case that he had not received, including the
government’s opposition brief and court’s order. Then on May 18, the government filed
a letter with the court, explaining that Heisler had, at that point, exhausted his
administrative remedies.
On May 26, the court denied the motions for a stay or continuance and for the
missing documents. No delay was necessary, the court explained, because there were
no filings due or other ongoing proceedings; further, the court assumed that Heisler
had by then received the missing documents. Then, noting Heisler’s alternative request
that the court grant his motion for compassionate release (and presumably accepting
the government’s stance on exhaustion), the court addressed the merits of, and denied,
his request. Heisler failed to provide “any independent evidence” of an “extraordinary
and compelling reason” for compassionate release. See 18 U.S.C. § 3582(c)(1)(A)(i);
see also U.S.S.G. § 1B1.13, cmt. n.1 (listing circumstances).
No. 20-1895 Page 3
That same day, the district court docketed Heisler’s notice of appeal from the
May 13 order denying his motion without prejudice based on the failure to exhaust.
Heisler had tendered it to prison staff on May 20.
On appeal, Heisler argues that the district court abused its discretion in
concluding that he failed to exhaust his administrative remedies before suing. And, he
asserts, when the court later denied his motion on the merits, it failed to analyze the
factors governing compassionate release. He further argues that the district court
should not have denied the request for a sentence reduction without first ruling on his
motion for the appointment of counsel.
Before we reach Heisler’s arguments, however, we must assure ourselves that we
have jurisdiction over this appeal. West v. Louisville Gas & Elec. Co., 920 F.3d 499, 503
(7th Cir. 2019). We do not. The government argues that the district court’s first order
denying Heisler’s motion based on failure to exhaust is not a final, appealable order
under 28 U.S.C. § 1291 because it was denied “without prejudice” to him renewing it.
That might have been the problem when Heisler first appealed, but now it is something
else: His appeal of the first order is moot. A controversy must remain live throughout
all stages of litigation for a federal court to exercise jurisdiction. See Already, LLC v. Nike,
Inc., 568 U.S. 85, 90–91 (2013). Here, after Heisler appealed, the government dropped its
exhaustion argument, and Heisler received the relief he sought—a ruling premised on
the merits (even if it was not to his liking). See Palka v. City of Chicago, 662 F.3d 428, 436
(7th Cir. 2011). There is no live issue for us to decide with respect to the first order.
We also lack jurisdiction to address the denial of the motion for compassionate
release on the merits because Heisler did not file a second notice of appeal. His first,
which he mailed before the court’s May 26 decision, is not effective to bring up that
second order. See Halasa v. ITT Educ. Servs., Inc., 690 F.3d 844, 849 (7th Cir. 2012);
see also Taylor v. Brown, 787 F.3d 851, 858 (7th Cir. 2015) (prisoner’s notice of appeal is
deemed filed when he places it in prison mail system). And Federal Rule of Appellate
Procedure 4(b)(2), allowing a premature notice of appeal to be “treated as filed on the
date of and after the entry” of final judgment, does not help. The district court had not
yet announced its decision on the merits of Heisler’s motion when he filed his notice, so
the “Rule does not come into play.” Manrique v. United States, 137 S. Ct. 1266, 1273
(2017); see also United States v. Collins, 949 F.3d 1049, 1055 (7th Cir. 2020) (Rule “permits a
notice of appeal that is filed too early to be effective only if the issue sought to be
appealed has already been resolved”).
No. 20-1895 Page 4
True, a timely filed appellate brief or other document providing the information
required by Federal Rule of Appellate Procedure 3 may be effective as a notice of
appeal. See Halasa, 690 F.3d at 849. But none of Heisler’s filings is timely as to the second
order. The motion that we initially construed as his brief challenged only the district
court’s first order. (Indeed, he mailed the document six days before the second order.)
The amended brief that addresses both orders, which he mailed on June 25, came too
late to serve as a notice of appeal of the second order, and we may not overlook
untimeliness. See FED. R. APP. P. 4(b)(1)(A)(i) (setting 14-day limit); see also Manrique,
137 S. Ct. at 1274 (“The court of appeals may, in its discretion, overlook defects in a
notice of appeal other than the failure to timely file a notice.”). We therefore lack
jurisdiction to review the May 26 order. See United States v. Bonk, 967 F.3d 643, 648–50
(7th Cir. 2020).
Because there is no live controversy with respect to the only order properly
before us, this appeal is DISMISSED.