United States District Court, E.D. Pennsylvania
July 15, 2004.
LEO FRANCIS SCHWEITZER, III
U.S. PAROLE COMMISSION, et al.
The opinion of the court was delivered by: THOMAS RUETER, Magistrate Judge
REPORT AND RECOMMENDATION
Presently before the court is a pro se petition for a writ of
habeas corpus filed pursuant to 28 U.S.C. § 2241 (Doc. No. 1). In
conjunction therewith, petitioner also filed a motion to show
cause for the issuance of the writ (Doc. No. 3) and a motion for
injunctive relief (Doc. No. 4). Petitioner, a committed parole
violator, had been incarcerated at the time he filed his petition
on February 26, 2004. By his petition, petitioner challenged the
manner in which his period of incarceration was calculated and
requested an order releasing him from imprisonment. (Petition ¶
32-38). Since the filing of his petition, petitioner was released
from prison on March 20, 2004, having served his term of
incarceration for his parole violation. Because petitioner has
been released from prison, his petition for a writ of habeas
corpus is now moot. For the reasons that follow, the court
therefore recommends that the petition be dismissed.
On July 13, 1985, petitioner was convicted of mail fraud and
making false statements to a government agency before the late
Honorable Daniel H. Huyett, III (Criminal Action No. 84-97).
See United States v. Schweitzer, 1988 WL 115774 at *1 (E.D.
Pa. Oct. 26, 1988) (describing proceedings). On October 25, 1985,
Judge Huyett sentenced petitioner to fifteen years of imprisonment. The Third Circuit Court of Appeals
affirmed the judgment of the district court. United States v.
Schweitzer, 800 F.2d 1141 (3d Cir. 1986). In October 1990,
petitioner was paroled from federal prison. His parole terminates
in January of 2008.
While on parole, petitioner was charged in another indictment
with conspiracy, wire fraud and false statements resulting from a
scheme to defraud the government (Criminal Action No. 95-200).
Petitioner pled guilty on June 21, 1995 and the Honorable
Clarence C. Newcomer sentenced him on November 7, 1995 to
forty-one months of imprisonment. As a result of this conviction,
petitioner was found in violation of his parole in Criminal
Action No. 84-97 and was incarcerated on the violation until
While released on parole, petitioner was indicted by the
federal grand jury for a third time on July 24, 2003. In this
third indictment, Criminal Action No. 03-451, petitioner was
charged with over thirty counts of mail and wire fraud, resulting
from a scheme to fill Department of Defense contracts with goods
he obtained from vendors on credit but for which he did not pay.
According to the Government, the conduct charged in the current
indictment is substantially similar to the conduct for which
petitioner was convicted in the previous two indictments. In this
most recent indictment, petitioner was released on bail and is
awaiting trial before the Honorable James Knoll Gardner.
As a result of Criminal Indictment No. 03-451, a warrant was
issued by the U.S. Parole Commission on the grounds that
petitioner committed violations of his parole. Following a
hearing, the Parole Commission found that petitioner committed
technical violations of his parole and the Commission sentenced
him to seven months imprisonment for the technical violations.
(Petition ¶ 6, 26). While incarcerated for the parole violations, petitioner filed
this writ of habeas corpus on February 26, 2004. On March 20,
2004, petitioner was released from incarceration having completed
the seven month term of imprisonment. (Response to Petition at
3). His parole continues until January 11, 2008. Id.
In his petition for a writ of habeas corpus (Doc. No. 1),
petitioner claimed that his period of incarceration was
miscalculated by the Federal Bureau of Prisons ("BOP") and he
requested an order releasing him from imprisonment. He alleges
that the BOP failed to give him credit for certain time served.
(Petition ¶ 32-38).
It is well established that under Article III, Section 2, of
the United States Constitution, a federal court only may consider
ongoing cases or controversies. Lewis v. Continental Bank,
Corp., 494 U.S. 472, 477-78 (1990). Thus, although this action
was alive when filed by petitioner and may have become moot only
during the pendency of this court's review, "Article III requires
that an actual controversy exist through all stages of
litigation." United States v. Kissinger, 309 F.3d 179, 180 (3d
"Generally, once a litigant is unconditionally released from
criminal confinement, the litigant must prove that he or she
suffers a continuing injury from the collateral consequences
attaching to the challenged act." Kissinger, 309 F.3d at 181.
Here, petitioner must show that he will suffer future injury from
the alleged miscalculation of prison time, or that he is
currently suffering from an injury from the alleged
miscalculation. Petitioner has failed to make such a showing. In Spencer v. Kemna, 523 U.S. 1 (1998), petitioner filed an
application for a writ of habeas corpus, which challenged the
procedures used to revoke his parole. While his habeas corpus
petition was proceeding, petitioner was released from
incarceration because his sentence for the parole violation had
been served. The U.S. Supreme Court affirmed the dismissal of the
petition as being moot because petitioner had not shown concrete
injuries-in-fact of the kind sufficient to satisfy Article III's
case-or-controversy requirement. The Court stated the following:
An incarcerated convict's (or a parolee's) challenge
to the validity of his conviction always satisfies
the case-or-controversy requirement, because the
incarceration (or the restriction imposed by the
terms of the parole) constitutes a concrete injury,
caused by the conviction and redressable by
invalidation of the conviction. Once the convict's
sentence has expired, however, some concrete and
continuing injury other than the now-ended
incarceration or parole some "collateral
consequence" of the conviction must exist if the
suit is to be maintained.
Id. at 7.
Here, petitioner is not challenging the decision to revoke his
parole or procedures used to revoke his parole. Instead, he is
merely challenging the BOP's calculation of his sentence claiming
that he should have received credit for previous time served.
(Petition ¶ 32-38). There simply are not collateral consequences
resulting from this alleged miscalculation to enable this court
to hear the habeas petition after he was released from prison.
Therefore, the court should dismiss the petition as moot. See
Lane v. Williams, 455 U.S. 624, 631 (1982) (holding that
"[s]ince respondents elected only to attack their sentences, and
since those sentences expired during the course of these
proceedings, the case is moot."); Diaz v. Kinkela,
253 F.3d 241, 243-44 (6th Cir. 2001) (federal habeas petition moot
where petitioner challenged additional period of incarceration
for "bad time," but petitioner already released from prison after
serving the additional "bad time."); Wharton v. Hood, 2001 WL 1664465, at
*1 (9th Cir. 2001) (unpublished opinion) (holding habeas
petition moot where petitioner challenged computation of good
time credits, and petitioner had been released from custody);
Beckett v. Nash, 2003 WL 230224534, at *2 (E.D. Pa. Dec. 11,
2003) ("[W]here a petitioner only challenges the computation of
his or her sentence and nothing else any alleged remedy
can no longer be enforced once the petitioner has fully served
the imposed sentence and has been released from custody.");
Ewald v. Cockrell, 2002 WL 31051018, at *3 (N.D. Tex. Sept. 11,
2002) (habeas petition challenging aspects of sentence, rather
than underlying conviction, was mooted by petitioner's release
from custody). Accordingly, the court should dismiss this
petition for a writ of habeas corpus as moot.
For all the above reasons, the court makes the following:
AND NOW, this 15th day of July, 2004, the court
respectfully recommends that the petition for a writ of habeas
corpus be DISMISSED as moot, and that no certificate of
appealability ("COA") be granted.*fn1