United States District Court, D. Oregon, Eugene Division
OPINION AND ORDER
Aiken United States District Judge
Ninth Circuit has remanded this matter for the limited
purpose of this Court granting or denying a certificate of
appealability regarding this Court's order (doc. 141)
finding that defendant's pro se motion to vacate
or correct sentence under 28 U.S.C. § 2255 (doc. 135)
was moot. For the reasons set forth herein, a certificate of
appealability is granted.
§ 2255 movant cannot appeal from the denial or dismissal
of his § 2255 motion unless he has first obtained a
certificate of appealability. 28 U.S.C. § 2253(c); Fed.
R. App. P. 22(b). A certificate of appealability will issue
only when a movant has made "a substantial showing of
the denial of a constitutional right." 28 U.S.C. §
2253(c)(2). To satisfy this standard when the court has
dismissed a § 2255 motion (or claims within a §
2255 motion) on procedural grounds, the movant must show that
reasonable jurists would find debatable (1) whether the court
was correct in its procedural ruling, and (2) whether the
motion states a valid claim of the denial of a constitutional
right. Slack v. McDaniel, 529 U.S, 473, 484 (2000);
United States v. Briciu, 2016 WL 4745170, at *2 (D.
Idaho Sept. 12, 2016), reconsideration denied, 2017
WL 3666293 (D. Idaho Aug. 23, 2017). When the court has
denied a § 2255 motion or claims within the motion on
the merits, the movant must show that reasonable jurists
would find the court's decision on the merits to be
debatable or wrong. Id.
the Court did not reach the merits of defendant's §
2255 motion. The Court found the motion moot following a
hearing on defendant's motion brought under § 2255
(doc. 135) as well as his motion for early termination of
supervised release (doc. 139). In his § 2255 motion,
defendant challenged the Court's Second Amended Judgment
(doc 129) on the basis that he was resentenced in
absentia when he had not waived his right to appear in
person at a sentencing hearing. The Government agreed that
defendant had a clear right to appear at a resentencing
hearing and represented that his motion should be granted to
satisfy that right. Subsequently, counsel appeared on
defendant's behalf and filed a motion for termination of
supervised release (doc. 139) In that motion, defendant
contended that the "[g]ranting of this motion would moot
Defendant's pro se 2255 motion." Def. Mot.
for Termination of Supervised Release at 3. The Court heard
argument on both motions and engaged with the defendant
regarding the early termination of his term of supervised
release. The Court was satisfied that the discharge of
defendant's remaining term of supervised release was
"warranted by the conduct of the defendant released and
in the interest of justice." 18 U.S.C. § 3583(e).
Court then denied plaintiffs § 2255 motion as moot,
because once the plaintiffs supervised release was terminated
the Court believed that there was no substantial relief it
could provide by granting the motion and resentencing
defendant, Neither defendant nor his counsel objected to this
approach on the record at the hearing.
general rules applying to habeas coipus are applicable to
§ 2255 proceedings. Matysek v. United States,
339 F.2d 389, 394 (9th Cir. 1964) (internal citations
omitted). A habeas petitioner must be in custody for the
conviction or sentence under attack at the time the petition
is filed. SeeMaleng v. Cook 490 U.S. 488,
490-91, 109 S.Ct. 1923, 104 L.Ed.2d 540 (1989). Terms of
probation, parole, or supervised release satisfy the "in
custody" requirement in habeas actions because they
impose significant restrictions on a defendant's freedom.
United States v. Brichi, 2016 WL 4745170 at *2
(internal citations omitted).
Supreme Court has held that a defendant's habeas corpus
petition is not moot simply because a petitioner has been
completely released before the petition was finally
adjudicated. See Carafas v. LaVallee, 391 U.S. 234,
237-38 (1968). However, the present case differs greatly from
the facts considered in Carafas. In that case, the
Court focused on the consequences of the petitioner's
conviction, namely that he could not vote, engage in certain
business, or serve as juror. Id. at 237. Because of
these burdens, the Court reasoned that the petitioner still
had substantial stake in the judgement of conviction which
survived the satisfaction of the sentence imposed on him.
Id., Here, by contrast, defendant's motion was
not challenging his underlying conviction, rather the relief
he sought was an opportunity to appear at a resentencing
hearing and allocute on his own behalf, presumably in hopes
of receiving a shorter in-custody sentence as well as a
lesser term of supervised release. Def s Mot. to Vacate at 6.
Court believes that after granting the motion for termination
of supervised release, there was effectively no further
relief that it could provide under § 2255 by
resentencing defendant when he had already served well beyond
any term the Court could impose. However, the Court
recognizes that defendant's § 2255 motion clearly
stated a valid claim of the denial of a constitutional right.
Through an administrative error, defendant did not appear at
a resentencing hearing, and the record is bereft of any
waiver of his right to appear at such a hearing. Defendant
was under supervision and thus still in custody at the time
his motion was filed. Further, the Court holds that
reasonable jurists could find it debatable whether this
Court's finding that the motion was moot was the correct
procedural ruling, The Court therefore grants defendant a
certificate of appealability.
reasons set forth herein, defendant is granted a certificate
of appealability on the question of whether his motion
brought pursuant § 2255 was mooted by the Court granting
his motion for termination of supervised release.
 28 U.S.C. § 2255