April 23, 2018

Tenth Circuit: Prisoner’s Claim Dismissed as Moot Where Basis for Claim No Longer Exists

The Tenth Circuit Court of Appeals issued its opinion in Ind v. Colorado Department of Corrections on Friday, September 11, 2015.

Jacob Ind has been in prison since 1992. In September 1995, he was assigned to administrative segregation at the Colorado State Penitentiary (CSP), where he was subject to a limitation of two personal books. He filed suit in March 2009, alleging the two-book limitation was a substantial burden on his sincerely held religious beliefs in violation of the constitution and RLUIPA. In June 2011, he was transferred out of administrative segregation and into the general population, where he is allowed 15 personal books. The Colorado Department of Corrections (CDOC) moved to dismiss his suit as moot, and the magistrate judge recommended it be dismissed for mootness, but the district judge concluded Ind would likely be returned to segregation in the future and denied the motion. The court held after a bench trial that the two-book limitation violated Ind’s RLUIPA rights and that if he were returned to segregation CDOC was enjoined from enforcing the policy against Ind. CDOC appealed, arguing the case was moot.

The Tenth Circuit began its review by evaluating the doctrine of mootness, noting the exceptions to the mootness doctrine include if (1) secondary or collateral injuries survive after resolution of the primary injury, (2) the issue is deemed a wrong capable of repetition but evading review, (3) the defendant voluntarily ceases an illegal practice but is free to resume at any time, or (4) it is a properly certified class action. The second and third exceptions were at issue in Ind’s case, and the district court applied the third exception in ruling the limitation violated RLUIPA as applied to Ind.

The Tenth Circuit examined the record and found it void of any evidence that Ind’s return to the general population was a ploy by CDOC to deprive the court of jurisdiction. Instead, the record showed that Ind completed the required phases of administrative segregation and was then returned to the general population. Ind argued that his history of having spent more than half of his imprisonment in administrative segregation demonstrated a reasonable probability that he would return there. The Tenth Circuit declined to assume that he would repeat the misconduct that caused him to enter administrative segregation in the first place, and further noted that he had spent four years in the general population since being released from segregation, three years of which were after the district court issued its order. The Tenth Circuit concluded it was undisputed that Ind’s release from administrative segregation ended the alleged violation of his rights, and the CDOC carried its burden of showing the challenged conduct could not reasonably be expected to resume.

The Tenth Circuit then turned to Ind’s assertion that the harm was capable of repetition but evading review. To avail himself of the exception, Ind must show that the challenged action was too short in duration to be litigated prior to its cessation and there is a reasonable expectation that the complaining party will be subject to the same action again. The Tenth Circuit found Ind’s argument failed at the second prong, because, pursuant to Tenth Circuit precedent, the circuit declined to assume Ind would repeat the misconduct for which he was previously sent to administrative segregation.

The Tenth Circuit reversed the district court’s decision and remanded with instructions to dismiss the case as moot.

Colorado Court of Appeals: Clean Slate Rule Renders Moot Ineffective Assistance Claim Regarding First Trial

The Colorado Court of Appeals issued its opinion in People v. Chipman on Thursday, October 8, 2015.

Crim.P. 35(c)—Ineffective Assistance of Counsel—Mootness—Expert—Statements—Impeach—Competency.

Defendant lived with his wife and the victim in this case. After defendant’s wife filed for divorce and had defendant removed from the home, defendant returned to the home two times with a gun, shooting the victim the second time. A jury convicted defendant of several felonies based on these incidents. He appealed. A division of the Court of Appeals affirmed some of his convictions and reversed others. On retrial, a second jury convicted him of lesser, although related, charges. The same attorney represented defendant at both trials. Defendant contended in a Crim.P. 35(c) motion that his trial counsel had been ineffective. The post-conviction court denied the motion.

On appeal, defendant contended that the post-conviction court erred when, without a hearing, it denied his three Crim.P. 35(c) claims of ineffective counsel. Defendant’s post-conviction claim in the first trial was moot because the appellate court had granted defendant relief in a previous direct appeal. Because defendant received all the relief to which he was entitled when the division reversed the convictions, the post-conviction court could not have given him anything more. Therefore, defendant’s appeal of this issue was dismissed.

Defendant next contended that he was prejudiced at his second trial because his counsel did not retain an expert to test the blood on his clothing, which would have showed that the blood was his and he was there to commit suicide and not hurt the victim. However, defendant failed to show how this evidence would have changed the outcome of the trial.

Defendant also contended that certain statements he made should not have been admitted during his second trial because they were obtained in violation of his Miranda rights. The record, however, shows that defendant’s statements were not the product of police interrogation. Because defendant could not prove his suppression claim, he could not prove that his counsel was ineffective in this regard.

Defendant further argued that his counsel was ineffective because he did not impeach the victim. This argument failed because counsel did try to impeach the victim and defendant’s claim was speculative.

Defendant also argued that he was incompetent during his first trial. A psychiatrist performed a retroactive competency evaluation and formed the opinion that defendant had been competent during the first trial. Therefore, the trial court did not abuse its discretion in denying a second competency evaluation.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Dependency and Neglect Action Not Moot When Collateral Consequences Probable

The Colorado Court of Appeals issued its opinion in People in Interest of C.G. on Thursday, July 30, 2015.

Dependency and Neglect—Mootness Following Child’s Death—CRCP 60(b) Motion.

In March 2006, the Jefferson County Division of Children, Youth, and Families (Division) filed a dependency and neglect petition and assumed temporary custody of a 5-year-old child and his younger half-sibling. The petition asserted that father (“whereabouts unknown”) had abandoned him. Publication notice was completed.

In May 2006, the court placed the child in the temporary custody of Phillips, the father of the child’s half-sibling. In November 2006, the court adjudicated the child dependent and neglected by default as to father and granted an allocation of parental responsibilities (APR) for the child to Phillips. The child died a year later. Phillips was convicted of first-degree murder and child abuse resulting in death.

Several years later, father, the child’s mother, and the personal representative of the child’s estate commenced a federal court action against the Division, the Denver County Department of Human Services (Department), and two caseworkers from the Department. The claims were 42 USC §1983 claims for violations of the child’s substantive due process rights.

In June 2014, father moved for CRCP 60(b) relief in the dependency and neglect proceeding. He sought to vacate the trial court’s orders because the Division had failed to exercise due diligence to ascertain his identity before serving him by publication. The Division responded that the matter was moot, and father answered that it would have a practical effect on the §1983 action. The court denied father’s motion as moot without holding a hearing.

The Court of Appeals concluded that the request for relief was not moot because of the collateral consequence of the dependency and neglect orders in father’s federal action. The Court noted that an issue is not moot when the judgment may result in significant collateral consequences to a party. This decision turns on showing the reasonable possibility of such consequences. Here, the orders in the dependency and neglect proceeding were being used to impose a collateral consequence on father—the denial of relief in his federal action. If the child was not in the state’s custody after transferring custody and awarding APR to Phillips, then father’s only surviving claims in the federal action (against the caseworkers) would be dismissed. If, however, his CRCP 60(b) relief was granted, there would be a reasonable possibility that he could pursue his remaining claims in federal court.

Even if father’s motion were moot, the district court should have considered its merits because its substantive issues fell within the exceptions to the mootness doctrine. The order was reversed and the matter was remanded for consideration of the merits of the CRCP 60(b) motion.

Summary and full case available here, courtesy of The Colorado Lawyer.

Tenth Circuit: Interlocutory Appeal of Preliminary Injunction Related to 2014 Elections Moot

The Tenth Circuit Court of Appeals issued its opinion in Fleming v. Gutierrez on Tuesday, May 5, 2015.

The 2012 general election in Sandoval County, New Mexico, was fraught with problems. Some voters waited more than five hours to vote, and others left before casting their ballots. Following the disastrous election, the Sandoval County Board of Commissioners passed two resolutions condemning the handling of the 2012 election and designating more voting centers for the 2014 election.

Several voters filed suit in federal district court after the 2012 elections, alleging equal protection and due process § 1983 violations and a violation of New Mexico’s constitutional free-and-open-elections clause. In September 2014, the district court entered a preliminary injunction against the county that essentially made any discretionary aspects of the Board’s resolutions non-discretionary. The injunction explicitly stated it was to apply through the November 2014 elections, at which point the court would reevaluate the case. The county filed an interlocutory review, seeking vacation of the injunction on the grounds that the voters lacked standing and were unlikely to prevail on the merits, and also seeking expedited review. The Tenth Circuit declined expedited review and the November 2014 election occurred under the bounds of the preliminary injunction.

The voters requested the Tenth Circuit to dismiss the appeal as moot. The county argued the election did not moot the injunction because it falls within the exception to the mootness doctrine for issues capable of repetition yet evading review, and because the injunction remains relevant to the issue of the prevailing party’s attorney fees. The Tenth Circuit addressed each contention in turn.

The Tenth Circuit held that the November 2014 election mooted the interlocutory appeal, finding any decision about the district court’s order would have no present day effect on the parties because the election and the effective time for the injunction had passed. The Circuit further found the exception to the mootness doctrine for issues capable of repetition yet evading review did not apply to the preliminary injunction, though it could apply to the case as a whole. Because the complaint, in which the voters sought permanent injunctive relief as to all future elections, was still pending in the district court, the issues were capable of review.

As to the attorney fee award, the Tenth Circuit found that the voters were the prevailing party as to the preliminary injunction but may not prevail on the suit in district court. Because no fee request had been filed, the Tenth Circuit lacked jurisdiction to address the issue.

The Tenth Circuit granted the voters’ motion to dismiss the appeal as moot and dismissed the appeal for lack of jurisdiction.

Colorado Court of Appeals: Deported Defendant’s Appeal Not Moot Where He is Not Barred from Reentry

The Colorado Court of Appeals issued its opinion in People v. Calderon on Thursday, October 23, 2014.

Probation Revocation—Due Process.

In 2012, defendant pleaded guilty to attempted first-degree trespass of an automobile with the intent to commit a crime. He was sentenced to two years of intensive supervised probation, with ninety days in jail.

A few months later, defendant’s probation officer filed a probation revocation complaint. At the revocation hearing, the officer testified she had never met with defendant because he had been released to jail directly into the custody of Immigration Customs Enforcement (ICE). The district court found that defendant had violated the terms of his probation and resentenced him to two years of intensive supervised probation. Defendant filed a motion for reconsideration, which was denied.

On appeal, defendant argued that his due process rights were violated when his probation was revoked based on a violation of a condition of probation. He claimed he did not receive either notice of the probation conditions when he was sentenced to probation, or written notice of those conditions in the revocation complaint. It was undisputed that defendant did not receive written notice of his probation conditions, and there was no evidence that defendant had actual notice of the probation conditions. Therefore, the Court of Appeals reversed the order revoking probation.

The Court further held that defendant was deprived of his due process right to written notice in the revocation complaint of the condition of probation he allegedly violated. Defendant had a due process right and a statutory right to such notice. The orders were reversed and the case was remanded to the district court to reinstate defendant’s original sentence to probation.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Defendant Not Entitled to Withdraw Guilty Plea to Correct Purportedly Illegal Sentence

The Colorado Court of Appeals issued its opinion in People v. Fritz on Thursday, August 28, 2014.

Illegal Sentence—Plea Bargain—Moot.

Fritz admitted to sexually abusing his adopted daughter, J.F., more than 1,000 times over a three-year period. He pleaded guilty to aggravated incest, and the prosecution dropped the remaining charges. Fritz complied with the plea agreement until 2008, when he left Colorado without permission and travelled to the Philippines. The prosecution filed a complaint seeking to revoke his probation.

Fritz then filed a Crim.P. 35(a) motion to withdraw his guilty plea and a Crim.P. 35(c) motion to vacate an allegedly illegal sentence and conviction; both motions were denied by the court. Two months after Fritz filed a notice of appeal, he pleaded guilty to the probation violation. Both parties stipulated to a sentence of thirteen years in prison subject to discretionary parole. The trial court sentenced Fritz according to the new plea agreement.

On appeal, Fritz contended that he obtained an illegal sentence as part of his original plea bargain, thus entitling him to withdraw his guilty plea. However, Fritz was not materially induced to enter into a plea by the mandatory parole provision. If his original sentence was illegal, the only remedy is imposition of a new legal sentence. This appeal is moot because Fritz pleaded guilty to the probation violation and the trial court imposed a new legal sentence, thereby superseding the original sentence. Accordingly, the appeal was dismissed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Appeal of Deported Immigrant Denied as Moot Because Probation Completed and Reentry Prohibited

The Colorado Court of Appeals issued its opinion in People v. Garcia on Thursday, July 3, 2014.

Probation Revocation—Mootness.

In 2010, Garcia pleaded guilty to criminal impersonation for providing a false name and false identification documents to police officers when they pulled him over for driving under the influence (DUI). He was sentenced to sixty months’ probation and one year in jail, on condition that he leave the United States and not reenter without inspection and a visa. Garcia’s remaining jail time was waived and he was released to the custody of Immigration and Customs Enforcement (ICE) for deportation.

One year later, Garcia returned to the United States. He was arrested for a traffic violation and charged with violating the conditions of his probation. The trial court revoked his probation after finding he had reentered the United States without a valid passport or visa. He was resentenced to one year in the custody of the Department of Corrections, with credit for 211 days served. After he completed his sentence, ICE deported him. In 2012, Garcia returned to the United States and ICE deported him again.

Garcia filed a notice of appeal of the revocation of his probation and the People filed a motion to dismiss, arguing the appeal was moot. The Court of Appeals granted the People’s motion.

The doctrine of mootness precludes the Court from reviewing a case in which its decision will have no practical effect on an actual or existing controversy. Here, the Court found that the appeal was moot because: (1) Garcia had already served his sentence; (2) he was not contesting his conviction, which could affect his admission to the United States; and (3) he is permanently barred from reentering the United States because criminal impersonation is a crime involving moral turpitude.

Garcia argued that the Court should reach the merits of the appeal even if it is otherwise moot, because it is capable of repetition without conducting a review, and this presents a matter of public importance involving recurring constitutional violations. The Court disagreed. First, there is no chance that Garcia’s probation will be revoked again because he has completed his sentence, has been deported, and is permanently barred from reentry. Second, this case does not involve a matter of public importance because the appeal only concerned the revocation of Garcia’s probation. Accordingly, the appeal was dismissed.

Summary and full case available here.

Tenth Circuit: In Consolidated Bankruptcy Appeal, One Case is Moot, Court Lacks Jurisdiction to Hear Other

The Tenth Circuit Court of Appeals published its opinion in Gordon v. Bank of America and Pahs v. Kiehl on Thursday, February 20, 2014.

After Pahs filed his appeal with this court, he and the Chapter 13 trustee agreed that Pahs would continue to make the payments required by the Chapter 13 plan while this appeal was pending. When Pahs failed to make those payments, one of his creditors moved for the dismissal of Pahs’ bankruptcy. After no one objected to the motion, the bankruptcy court granted it, dismissing Pahs’ bankruptcy. In light of that dismissal, the Tenth Circuit held it could no longer grant Pahs any relief and his appeal was therefore moot.

Regarding the Gordons’ appeal, The Tenth Circuit held it had no jurisdiction because it was not taken from a final appealable decision and the parties had not invoked any mechanism that might permit an interlocutory appeal.

Although the district court’s decision required the Gordons to use the model Chapter 13 plan without modification, they would be free to revise the substantive portion of their plan. And the bankruptcy court will have to give creditors notice of the new amended plan, permit time for any objections, and then conduct another confirmation hearing. All of which is to say, the district court remanded the Gordons’ case to the bankruptcy court for significant further proceedings. This did not constitute a final appealable decision, and the Tenth Circuit lacked jurisdiction to hear the appeal.

The Pahs’ appeal was DISMISSED as moot.

The Gordons’ appeal was DISMISSED for lack of jurisdiction.

Colorado Court of Appeals: Subsequent Legislation Made Moot Trade Association’s Claims of Harm

The Colorado Court of Appeals issued its opinion in Colorado Mining Association v. Urbina on Thursday, November 21, 2013.

Environmental Air Quality Regulations—Challenge to Validity of Procedural Rules and Legislation.

Plaintiff Colorado Mining Association (CMA), a trade association representing coal producers, appealed the trial court’s judgment dismissing as moot its claims against defendants Colorado Department of Public Health and Environment (CDPHE), CDPHE Executive Director Christopher E. Urbina, the Colorado Air Quality Control Commission (AQCC), and the Air Pollution Control Division (collectively, agencies). The judgment was affirmed.

CMA alleged that the rulemaking process employed by the agencies in promulgating environmental air quality regulations violated procedural rules, resulting in harm to CMA members. Pursuant to CRS § 25-7-133, a hearing was requested, a bill was introduced, and the bill was enacted into law. Significantly, there has been no challenge to the validity of the statute or the procedures employed to enact it. Therefore, subsequent legislation adopting the regulations—CRS § 25-7-133.5—mooted any procedural challenge to the agencies’ rulemaking. Because an order declaring the AQCC’s procedures invalid would not affect § 25-7-133.5, and the CMA has not challenged the validity of that statute, the relief sought in this appeal—invalidation of the regulations—would have no practical effect. Accordingly, the trial court did not err in dismissing CMA’s claims as moot.

Summary and full case available here.

Colorado Court of Appeals: Moot Issue Not Capable of Repetition Yet Evading Review as Disability Finding is Fact-Specific

The Colorado Court of Appeals issued its opinion in People in Interest of Vivekanathan on Thursday, October 24, 2013.

Involuntary Commitment—Gravely Disabled—Certification—Moot.

Respondent appealed the district court’s order upholding his certification, pursuant to CRS § 27-65-107, for involuntary commitment and treatment at the Colorado Mental Health Institute at Pueblo (CMHIP). The appeal was dismissed.

Respondent, a 25-year-old man, has suffered from schizophrenia since he was approximately 16 years old. A Centennial Peaks psychiatrist filed with the Larimer County District Court a “Notice of Certification and Certification for Short-Term Treatment,” which certified respondent for involuntary commitment to CMHIP based on the psychiatrist’s finding that respondent was “gravely disabled” as a result of his mental illness. Respondent objected. The district court upheld the certification, concluding that respondent is mentally ill and, as a result of that illness, is gravely disabled and a danger to himself. Respondent appealed the order upholding his certification. However, after this appeal was lodged and before the Larimer County Attorney’s Office filed a response, respondent’s civil commitment was terminated early by a different physician.

Respondent argued that the appeal was not moot because the issue is capable of repetition yet evading review. Whether respondent is gravely disabled is a fact-specific determination, and it depends on his condition at the time the finding is made. Thus, even if the district court erred in making the finding in the July 2013 order, this finding does not determine whether at some point in the future respondent may be found to be gravely disabled. Therefore, the particular issue of whether the July 2013 finding of “gravely disabled” was erroneous is moot, and the appeal was dismissed.

Summary and full case available here.

Tenth Circuit: Tribal Exhaustion Rule Applies to 25 U.S.C. § 1303 Habeas Petitions

The Tenth Circuit issued its opinion in Valenzuela v. Silversmith on Wednesday, November 14, 2012.

Alvin Valenzuela, an enrolled member of the Tohono O’odham Nation (the Nation) accepted a plea agreement in which he waived his right to appeal his conviction and sentences. He later filed a petition for writ of habeas corpus pursuant to 25 U.S.C. § 1303 seeking relief from tribal court convictions and his sentence. Section 1303 is part of the Indian Civil Rights Act. While Valenzuela’s petition was pending in federal district court, he completed his sentence and was released from prison. The district court concluded that Valenzuela’s claims were moot because of his release. Alternatively, it concluded that Valenzuela had failed to exhaust his tribal remedies before seeking habeas relief in federal court. Based on these alternative grounds, the district court dismissed Mr. Valenzuela’s § 1303 petition.

The Tenth Circuit chose to decide the appeal on the threshold, nonmerits issue of his failure to exhaust tribal remedies, rather than on the grounds of mootness. This allowed the court to avoid deciding whether it had subject matter jurisdiction and “difficult issues such as whether tribal court convictions are entitled to a presumption of collateral consequences and whether federal courts have authority under 25 U.S.C. § 1303 to vacate tribal court convictions.”

Valenzuela argued that § 1303 does not require exhaustion in the tribal courts. The court disagreed. While § 1303 does not explicitly state exhaustion is required, the tribal exhaustion rule applies to § 1303 petitions. The rule “provides that, absent exceptional circumstances, federal courts typically should abstain from hearing cases that challenge tribal court [authority] until tribal court remedies, including tribal appellate review, are exhausted.”

The court also found that because Valenzuela’s appeal waiver did not expressly waive his right to collaterally attack his conviction in tribal court, he had failed to exhaust his tribal court remedies by not filing a habeas petition in that court. The Tenth Circuit affirmed the district court’s dismissal and remanded for that court to dismiss it without prejudice.