Weiss, Morritz v. Indiana Parole Board

NONPRECEDENTIAL DISPOSITION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 May 3, 2007*
Decided May 3, 2007
Before
Hon. RICHARD A. POSNER, Circuit Judge
Hon. MICHAEL S. KANNE, Circuit Judge
Hon. DIANE P. WOOD, Circuit Judge
No. 06-3639
MORRITZ J. WEISS, Appeal from the United States District
Petitioner-Appellant, Court for the Southern District of
Indiana, Indianapolis Division
v.
No. 1:06-CV-679
INDIANA PAROLE BOARD,
Respondent-Appellee. Richard L. Young,
Judge.
ORDER
Morritz Weiss appeals the dismissal of his petition under 28 U.S.C. § 2254 to
remove sex-offender conditions from his parole. We vacate the judgment and
remand the case with the direction to dismiss the petition as moot.
In 2003 Weiss was convicted in Indiana of aggravated battery, which is not a
sex offense under state law. See I.C. 35-42-2-1.5; id. 11-8-8-5. He was sentenced to
*
After an examination of the briefs and the record, we have concluded that oral
argument is unnecessary. Thus, the appeal is submitted on the briefs and the record. See
Fed. R. App. P. 34(a)(2).
No. 06-3639 Page 2
20 years’ imprisonment with 2,880 days credit for time served and was paroled in
December 2004. The Indiana Parole Board imposed several sex-offender conditions,
see id. 11-13-1-4(g), because the battery allegedly involved the forcible rape of a
15-year-old girl. Among other conditions, Weiss had to attend a treatment program
for sex offenders and submit to periodic polygraph tests. His parole (along with the
conditions) expired in December 2006.
While still on parole, Weiss brought two federal actions, this one under
§ 2254 and another under 42 U.S.C. § 1983. In both he claimed that labeling him a
sex offender and subjecting him to the corresponding conditions without a
conviction for a sex offense violated his right to due process. Judge Tinder
dismissed the § 1983 suit without prejudice on the ground that existing parole
conditions cannot be challenged in a civil-rights action. See Weiss v. Miller, No.
1:06-cv-648 (S.D. Ind. May 2, 2006). Judge Young dismissed this § 2254 action; the
court essentially reasoned that Weiss raised only questions of state law in his
petition.
Weiss has appealed this decision, but after briefing was completed we
discovered that his parole was terminated successfully after the notice of appeal
was filed. We thus directed the parties to explain why the appeal should not be
dismissed as moot. The Parole Board says that it is; Weiss contends otherwise.
Our jurisdiction is limited to live “cases and controversies.” See U.S. Const.
art. III, § 2. A petition for a writ of habeas corpus becomes moot after the petitioner
is released from custody unless the petitioner will suffer sufficient collateral
consequences from the feature of his custody that he is challenging. See Spencer v.
Kemna, 523 U.S. 1, 7-8 (1998); A.M. v. Butler, 360 F.3d 787, 790 (7th Cir. 2004). The
Supreme Court has established a presumption of collateral consequences arising
from a conviction, but no similar presumption extends to sentencing
determinations, in which case the petitioner must prove such consequences exist.
See Spencer, 523 U.S. at 8, 12 (parole revocation); Cochran v. Buss, 381 F.3d 637,
641 (7th Cir. 2004) (per curiam) (loss of good-time credits).
Weiss argues that his § 2254 petition cannot be moot because, if it were, the
favorable-termination rule announced in Heck v. Humphrey, 512 U.S. 477 (1994),
would bar him from reinstating his § 1983 action for damages and he would be left
without any federal forum to seek redress. But Heck presents no obstacle for Weiss
now that his parole is over. The rule of Heck prohibits § 1983 suits for damages
that might impugn the validity of a conviction or sentence before that conviction or
sentence is invalidated on direct appeal or during postconviction proceedings. Heck,
512 U.S. at 486-87. This bar, however, is limited to prisoners who are “in custody”
and therefore are able to seek such review. Muhammad v. Close, 540 U.S. 749, 754-
55 (2004) (per curiam); Simpson v. Nickel, 450 F.3d 303, 307 (7th Cir. 2006). And
No. 06-3639 Page 3
Weiss cannot point to any other collateral consequences arising from the challenged
conditions of his parole. He was never adjudged a sex offender, so not even a label
lingers.
Accordingly, the judgment of the district court is VACATED, and the case is
REMANDED with the direction to DISMISS the petition as moot.