Gary Wade Williams v. Sandra Carter

[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FILED
FOR THE ELEVENTH CIRCUIT U.S. COURT OF APPEALS
________________________ ELEVENTH CIRCUIT
NOV 09, 2007
No. 06-16248 THOMAS K. KAHN
Non-Argument Calendar CLERK
________________________
D. C. Docket No. 04-00450-CV-T-N
GARY WADE WILLIAMS,
Petitioner-Appellant,
versus
SANDRA CARTER, Superintendent,
TROY KING, The Attorney General
of the State of Alabama,
Respondents-Appellees.
________________________
Appeal from the United States District Court
for the Middle District of Alabama
_________________________
(November 9, 2007)
Before DUBINA, MARCUS and WILSON, Circuit Judges.
PER CURIAM:
Petitioner Gary Wade Williams, a state prisoner, filed a pro se petition for
writ of habeas corpus on May 10, 2004, challenging the Alabama Department of
Corrections’ (“ADOC”) revocation of his statutory and incentive good time (“good
time”) credits in violation of ex post facto principles and his due process rights.1
Williams’s exhibits and case history reveal that he was sentenced in 1982 to 50
years’ imprisonment for robbery and attempted rape (“robbery sentence”). He was
convicted of murder and sentenced to a life sentence in 1983 (“life sentence”).
In a brief accompanying his petition, Williams clarified that he was not
seeking good time credits on his murder sentence, but wanted the credits that he
earned to be applied to his robbery sentence because he still was serving time on
that expired sentence, which affected his “classification, prison employment, and
future parole considerations.” Kathy Holt, ADOC’s director of records, submitted
an affidavit stating that Williams received his statutory good time credit, but lost
his incentive good time credit due to “a major disciplinary of Possession of
Contraband,” and he completed his robbery sentence on June 11, 2006, at which
time he began serving his life sentence. On September 15, 2006, the district court
concluded that, based on Holt’s affidavit, the case was moot because Williams only
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Williams is serving his sentence in the State of Washington, pursuant to a compact between
Alabama and Washington.
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challenged “allegedly improperly revoked good-conduct credits” on a sentence that
since had expired.
On appeal, Williams reasserts that the case is not moot because collateral
consequences resulting from ADOC’s miscalculation of his robbery sentence
remain, namely, that his “classification, prison employment, and future parole
considerations” are affected.
We review the issue of whether a case is moot de novo. Mattern v. Sec’y for
Dep’t of Corr., 494 F.3d 1282, 1285 (11th Cir. 2007). Issues raised for the first
time in a reply brief are waived. United States v. Dicter, 198 F.3d 1284, 1289
(11th Cir. 1999). We also have held that “[p]ro se pleadings are held to a less
stringent standard than pleadings drafted by attorneys and will, therefore, be
liberally construed.” Tannenbaum v. United States, 148 F.3d 1262, 1263 (11th Cir.
1998).
“Under Article III of the Constitution, federal courts may adjudicate only
actual, ongoing cases or controversies,” and “[t]his case-or-controversy
requirement subsists through all stages of federal judicial proceedings, trial and
appellate.” Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477, 110 S. Ct. 1249, 1253,
108 L. Ed. 2d 400 (1990). Normally, when a habeas petitioner elects to attack only
his sentence, and the sentence expires before final adjudication, the case is moot.
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Lane v. Williams, 455 U.S. 624, 631, 102 S. Ct. 1322, 1327, 71 L. Ed. 2d 508(1982) (holding that the petitioners could not challenge their parole violations
because they were released from prison and their parole term expired). The
Supreme Court has held, however, that a case is not moot as long as some
collateral consequences of the petitioner’s conviction remain. Carafas v. LaVallee,
391 U.S. 234, 237-38, 88 S. Ct. 1556, 1559, 20 L. Ed. 2d 554 (1968).
Additionally, while the Supreme Court has acknowledged that it will presume
collateral consequences when a petitioner is attacking his criminal conviction, as
the fact that a conviction carries with it collateral consequences is obvious, it
requires that a petitioner must prove collateral consequences when he attacks his
parole revocation, as a parole violation does not result in similar statutory collateral
consequences, only non-statutory discretionary decisions. Spencer v. Kemna, 523
U.S. 1, 8, 14, 118 S. Ct. 978, 983, 986, 140 L. Ed. 2d 43 (1998). A petitioner
challenging a parole revocation does not establish collateral circumstances when he
alleges only that the expired revocation might affect his future parole
considerations when parole is discretionary. Id. at 14, 118 S. Ct. at 986.
We have not addressed whether a case is moot when a habeas petitioner,
serving consecutive sentences, challenges a prior, expired sentence, but we have
held that a prisoner may challenge a sentence resulting from an unconstitutional
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conviction when the sentence delayed the date on which a valid sentence began.
See Fox v. Kelso, 911 F.2d 563, 568 (11th Cir. 1990). Additionally, we have held
that a habeas petitioner established that collateral consequences resulted from his
parole revocation when the revocation subsequently was used to enhance a new
sentence, and thus the case was not moot. Mattern, 494 F.3d at 1285-86.
Under Alabama law, “[n]o prisoner shall be released on parole merely as a
reward for good conduct . . . but only if the Board of Pardons and Paroles is of the
opinion that there is reasonable probability that” the inmate will not violate the law
if released. Ala. Code § 15-22-26. The Alabama Supreme Court has interpreted
§ 15-22-26 to give the Alabama Board of Pardons and Paroles total discretion in
the granting of parole. Thompson v. Bd. of Pardons and Paroles, 806 So.2d 374,
375 (Ala. 2001).
Because we conclude from the record that Williams has not sufficiently
alleged collateral consequences, we agree with the district court’s finding that the
case is moot. Williams does nothing more than make a general allegation that his
miscalculated robbery sentence affects his “classification, prison employment and
future parole classification.” That is not sufficient, particularly since parole is
discretionary in Alabama. See Spencer, 523 U.S. at 14, 118 S. Ct. at 986;
Thompson, 806 So.2d at 375.
AFFIRMED.
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