United States District Court, E.D. Michigan, Southern Division
CHRISTOPHER M. SMITH, Petitioner,
UNITED STATES OF AMERICA, Respondent.
ORDER DENYING PETITION FOR WRIT OF HABEAS
TERRENCE G. BERG UNITED STATES DISTRICT JUDGE.
Christopher M. Smith pled guilty to wire fraud, aiding and
abetting, in violation of 18 U.S.C. § 1343 and § 2.
As a result, on December 6, 2013 this Court sentenced him to
serve 41 months in prison. He was released upon completion of
that sentence but subsequently pled guilty on two occasions
to violating the conditions of his supervised release. He was
then sentenced to an additional 8 months of incarceration for
the first set of violations, and 18 months for the second set
of violations. According to the Federal Bureau of Prisons
inmate database, Petitioner was released from custody on
March 15, 2019. Before his release, on February 5, 2018,
Petitioner had filed a motion to vacate, set aside, or
correct his sentence under 28 U.S.C. § 2255. ECF No. 41.
That motion will now be denied because Petitioner does not
fit within the category of individuals who may seek relief
under § 2255, and his claims, which relate to the length
of the prison terms he received for violating the conditions
of his supervised release, are now moot.
was charged in connection with an elaborate wire fraud scheme
in which he and his associates defrauded Home Depot stores by
changing product price tags, scanning the altered products at
a checkout, and then returning the products to a different
Home Depot at their full, correct price in exchange for store
credit. Petitioner pled guilty and was sentenced to 41 months
in prison followed by a two-year period of supervised
release. ECF No. 23 (Dec. 13, 2013 Judgment).
the completion of his sentence, Petitioner pled guilty to
violating his supervised release on two occasions (March 2,
2017 and October 5, 2017). The March 2017 violations involved
failure to make agreed-upon restitution payments and to
refrain from excessive use of alcohol or possession of
controlled substances or related paraphernalia. ECF No. 31
(First Judgment on Violation). Petitioner admitted to the
violations and was sentenced to eight months imprisonment
followed by one year of supervised release. ECF No. 31 (First
Judgment on Violation).
was returned to supervised release after serving his 8-month
sentence and in October 2017 the Court found he had again
violated his supervised release conditions. The October 2017
violations stemmed from unlawful use of a controlled
substance and commission of another federal, state, or local
crime. ECF No. 40 (Second Judgment on Violation). In
connection with this second set of violations, the Court
sentenced Petitioner to 18 months of incarceration, with no
subsequent period of supervised release. ECF No. 40 (Second
Judgment on Violation). In February 2018, while he was
serving his 18-month prison term for the most recent
supervised release violations, Petitioner filed a 28 U.S.C.
§ 2255 motion collaterally attacking his sentence. The
claims set forth in that motion are two-fold: (1) that the
prison terms imposed for Petitioner's repeated supervised
release violations created an overall sentence greater than
that permitted by the United States Sentencing Guidelines for
his underlying conviction; and (2) defense counsel was
ineffective in failing to challenge the sentences imposed for
the supervised release violations, as Petitioner requested.
ECF No. 41 PageID.139-40 (Pet.). Petitioner was released from
federal prison on March 15, 2019 and is no longer subject to
any form of supervised release.
2255 of Title 28 of the United States Code provides a basis
for a prisoner serving a sentence imposed by a federal court
to challenge that sentence “upon the ground that [it]
was imposed in violation of the Constitution or laws of the
United States . . . the court was without jurisdiction to
impose such sentence, or . . . the sentence was in excesses
of the maximum authorized by law, or is otherwise subject to
collateral attack.” As relief, the prisoner may ask the
court which imposed the sentence to correct, vacate, or set
it aside. The law is clear that “§ 2255 claims
that do not assert a constitutional or jurisdictional error
are generally cognizable only if they involved ‘a
fundamental defect which inherently results in a complete
miscarriage of justice.'” Snider v. United
States, 908 F.3d 183, 189 (6th Cir. 2018) (quoting
Davis v. United States, 417 U.S. 333, 346 (1974)
(internal quotation marks omitted)). This standard is met
only in “exceptional circumstances where the need for
the remedy afforded by the writ of habeas corpus is
apparent.” Hill v. United States, 368 U.S.
424, 428 (1962).
federal prisoner filing a § 2255 motion must satisfy two
requirements. First, “the petitioner must show that he
meets the statutory definition of those who may seek §
2255 relief.” Pola v. United States, 778 F.3d
525, 529 (6th Cir. 2015). And second, “the petitioner
must demonstrate that he has standing to seek relief from the
federal courts.” Id. (citing Spencer v.
Kemna, 523 U.S. 1, 7 (1998)). To have standing,
“throughout the litigation, the [petitioner] must have
suffered, or be threatened with, an actual injury traceable
to the defendant and likely to be redressed by a favorable
judicial decision.” Spencer, 523 U.S. at 7
(internal quotations and citation omitted). See
Pola, 778 F.3d at 529 (applying Spencer, 523
U.S 1 in the context of adjudicating a § 2255 motion).
Petitioner fails to meet the “in custody”
requirement for § 2255 claims.
threshold matter, Petitioner has not shown that he fits
within the statutory definition of individuals who may seek
§ 2255 relief. Specifically, Petitioner has not
established that he should be considered “in
custody” within the meaning of the statute. Generally,
only individuals “in custody under sentence of a court
established by Act of Congress” may petition their
sentencing court to correct or invalidate a sentence imposed
on them. 28 U.S.C. § 2255(a). A prisoner is usually
considered to be “in custody” for § 2255
purposes “when he is incarcerated in either federal or
state prison, provided that a federal court has sentenced
him.” Ospina v. United States, 386 F.3d 750
(6th Cir. 2004) (citing Ward v. Knoblock, 738 F.2d
134, 138 (6th Cir. 1984)). The Sixth Circuit has also deemed
defendants on supervised release to be “in
custody” for § 2255 purposes. United States v.
Zack, 173 F.3d 431, 1999 WL 96996, at *1 (6th Cir. Feb.
Petitioner was released from his challenged 18-month sentence
on March 15, 2019 and is no longer serving any term of
supervised release. The Sixth Circuit has acknowledged that a
habeas petitioner who has been released may still satisfy the
“in custody” requirement of § 2255
“provided he filed the motion while incarcerated and
shows that he ‘is suffering, and will continue to
suffer, serious disabilities'-collateral consequences-as
a result of the conviction.” Pola, 778 F.3d at
529-30 (quoting Carafas v. LaVallee, 391 U.S. 234,
238 (1968)). Critically, however, to trigger a court's
consideration of collateral consequences of his or her
conviction, a habeas petitioner must attack the conviction
itself. Kemna, 523 U.S. at 7. As explained
by the Sixth Circuit in Hautzenroeder v. Dewine, 887
F.3d 737, 740 (6th Cir. 2018), “once the sentence
imposed for a conviction has completely expired, the
collateral consequences of that conviction are not themselves
sufficient to render an individual ‘in custody' for
the purposes of a habeas attack upon it.” (emphasis
omitted) (quoting Maleng v. Cook, 490 U.S. 345, 351
(1973) (per curiam)). Though Petitioner was incarcerated at
the time he filed his § 2255 motion, he has not
challenged his underlying conviction of wire fraud or the
Court's findings that he violated the conditions of his
supervised release. Rather, his petition focuses only on the
duration of the sentences imposed for his supervised release
violations, and his attorney's decision not to file a
notice of appeal. See ECF No. 41 (Pet.). Because
Petitioner's sentence has expired and he is no longer on
supervised release, the fact that he is not challenging any
conviction means he cannot be considered “in
custody” for § 2255 purposes. He therefore does
not meet the statutory requirements to seek federal habeas
relief under § 2255.
Petitioner's claims are moot because they relate only to
the duration of his sentence, which has now expired.
has likewise failed to demonstrate standing to seek habeas
relief from the federal courts. “Once a
petitioner's sentence has expired, some concrete and
continuing injury other than the now-ended incarceration or
parole . . . must exist if the suit is to be maintained and
not considered moot, ” namely a collateral consequence
of the conviction. United States v. Roberson, No.
16-12370, 2018 WL 949857, *1 (E.D. Mich. Feb. 20, 2018)
(citing Kenma, 523 U.S. at 7). Courts in this
district have expressly held that where, as here, “a
habeas petitioner chooses to attack only his or her sentence,
and not the underlying conviction, and that sentence expires
during the course of the habeas proceeding, the habeas
petitioner's claim for relief is moot.” Brock
v. White, No. 2:09-CV-14005, 2011 WL 1565188, *2 (E.D.
Mich. Apr. 25, 2011); Roberson, 2018 WL 949857 at
*2. See United States v. Buchannan, Nos. 07-10094,
02-90030, 2008 WL 2008556, *2 (E.D. Mich. May 8, 2008)
(“Because defendant challenges only his sentence, and
not his underlying conviction or supervised released
revocation, his release from that sentence renders his motion
moot.”). Where, as here, a petitioner's ...