United States District Court, D. South Dakota, Northern Division
CHARLES B. KORNMANN UNITED STATES DISTRICT JUDGE.
filed a request for habeas corpus relief pursuant to 28
U.S.C. § 2254 challenging the October 2014 decision of
the South Dakota Department of Corrections to revoke his good
time credits for failure to participate in a sex offender
treatment program which required petitioner to admit to his
sex offenses. Petitioner argued that the revocation of good
time credits violated his Fifth Amendment rights against
self-incrimination and double jeopardy, as well as his First
Amendment liberty interest, Sixth Amendment right to counsel,
Fourteenth Amendment due process rights, and the Religious
Land Use of Institutionalized Persons Act, among other
contentions. Petitioner requested appointment of counsel,
which was granted on March 9, 2016. On January 5, 2018,
Petitioner was released from prison. Respondents subsequently
filed a motion to dismiss the habeas petition as moot.
Petitioner objects to the motion to dismiss, arguing that he
suffers from collateral consequences as a result of not
completing the sexual offender treatment program: namely, the
requirement to register as a sex offender, ineligibility for
good time credits were he convicted of a sex offense again,
and the requirement to report to the sex offender registry
failure to complete the treatment program. Petitioner
requests an evidentiary hearing to present evidence of the
collateral consequences of his compliance with South
Dakota's sex offender registration statute.
Standard to render a habeas petition moot
III of the Constitution requires that federal courts limit
jurisdiction to "actual, ongoing cases and
controversies." Haden v. Pelofsky, 212 F.3d
466, 469 (8th Cir, 2000); see U.S. Const, art. Ill. § 2,
cl. 1. When a federal court can no longer grant effective
relief as a result "of the passage of time or a change
in circumstances" a case is considered moot and must be
dismissed for lack of jurisdiction. Ali v. Caneemi,
419 F.3d 722, 723-24 (8th Cir. 2005) (internal citations
omitted). If a petitioner is released from custody, but
"faces sufficient repercussions from his allegedly
unlawful punishment, " the federal court should not
dismiss the petition as moot. Leonard v. Nix, 55
F.3d 370, 373 (8th Cir. 1995) (internal citations omitted).
While such repercussions, or collateral consequences,
"are presumed to stem from a criminal conviction, "
where the "allegedly illegal punishment does not produce
any collateral consequences independent of the underlying
conviction, the case will be mooted by physical
release." Id. (internal citations omitted).
Sufficient collateral consequences to warrant continued
Article III jurisdiction may include "the right to vote,
to hold office, to serve on a jury, or to engage in certain
businesses." Spencer v. Kemna, 523 U.S. 1, 8
exception to the mootness doctrine exists where a matter is
"capable of repetition, yet evading review" and
there is "a reasonable expectation that the complaining
party would be subjected to the same action again."
Id. at 17. However, a "mere physical or
theoretical possibility" that the petitioner will be
subjected to the same action twice is not sufficient to
satisfy the mootness exception. Spencer v. Kemna, 91
F.3d 1114, 1118 (8th Cir. 1996). Rather, the petitioner must
show that there is a "reasonable likelihood" that
he will be affected by the allegedly unconstitutional
practice in the future. Id. Where a petitioner's
contention is based upon "general assertions or
inferences that... [he] will be prosecuted for violating
valid criminal laws" such claims to Article III standing
must be rejected. Q'Shea v. Littleton, 414 U.S.
488. 497 (19741: see also Spencer v. Kemna, 523 U.S.
1, 15 (1998).
Petitioner's alleged collateral consequences
contends that this court should maintain jurisdiction over
his habeas petition because collateral consequences will
result from his not completing the sexual offender treatment
program. First, petitioner characterizes the requirement to
register as a sex offender as a collateral consequence.
However, the requirement to register as a sex offender is not
a result of petitioner's failure to attend treatment, but
of his underlying conviction. As petitioner does not
challenge his underlying conviction, this consequence does
not justify continued jurisdiction over petitioner's
claim. Leonard v. Nix, 55 F.3d at 373.
also contends that, "[i]f [he] were convicted of a new
crime, he would be forced to sit the entire sentence
again." This is effectively a request for an exception
to the mootness doctrine. Petitioner has not shown that there
is a reasonable likelihood of his having to undergo sex
offender treatment again and claims to maintain standing that
presume a petitioner's future unlawful conduct have
consistently been rejected by federal courts. See Spencer
v. Kemna, 523 U.S. 1, 15 (1998).
final contention is that "the sex offender registry will
depict [petitioner] as having never taken the [sexual
offender treatment program]." It is true that, pursuant
to SDCL 22-24B-8, the information required for sex offender
registration includes "[w]hether or not registrant is
receiving or has received any sex offender treatment."
However, the South Dakota sex offender registry does not
publish this.information online. South Dakota Sex Offender
REGISTRY (May 3, 2018),
https://sor.sd.gov/MoreInfo.aspx?s=S0591804. The sex offender
registry, contrary to petitioner's contention, does not
therefore depict his failure to participate in the sex
offender treatment program. Moreover, even if the sex
offender registry did make public petitioner's, treatment
status, "[m]ere injury to reputation, even if
defamatory, does not constitute the deprivation of a liberty
interest." Connecticut Dept. of Public Safety v.
Doe, 538 U.S. 1, 1-2 (2003). Petitioner does not
otherwise articulate what harm would result from providing
information on the status of his treatment to the sex
offender registry. Nor has Petitioner filed suit challenging
the legality of South Dakota's sex offender registry
statute. That petitioner must report his sex offender
treatment or lack thereof to the registry is too speculative
a repercussion to justify maintaining jurisdiction over the
petitioner's alleged collateral consequences are
sufficiently credible to satisfy the case-or-controversy
requirement of Article III. The return of the good-time
credits petitioner originally sought would have no
consequence given his release. As such, petitioner's writ
of habeas corpus is moot and should be dismissed.
Petitioner's request for evidentiary hearing
an evidentiary hearing pursuant to a habeas petition is not
otherwise barred by statute, "the decision to grant such
a hearing rests in the discretion of the district
court." McGehee v. Norris,588 F.3d 1185, 1200
(8th Cir. 2009) (internal citations omitted). The district
court, in making its determination "must consider
whether a hearing could enable an applicant to prove the
petition's factual allegations." Id.
(internal citations omitted). If the record "refutes the
[petitioner's] factual allegations or otherwise precludes