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No. 08-1428

 

In the Supreme Court of the United States

JOHN BURKEY, PETITIONER

v.

HELEN J. MARBERRY, WARDEN

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

ELENA KAGAN
Solicitor General
Counsel of Record
LANNY A. BREUER
Assistant Attorney General
KIRBY A. HELLER
Attorney
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTION PRESENTED

Whether petitioner's habeas petition, which sought early release from his term of imprisonment under 18 U.S.C. 3621(e)(2)(B), is moot because petitioner was released from imprisonment and did not demonstrate that habeas relief would likely cause the district court that sentenced him to exercise its sentencing discretion under 18 U.S.C. 3583(e) to reduce petitioner's unexpired term of supervised release.

In the Supreme Court of the United States

No. 08-1428

JOHN BURKEY, PETITIONER

v.

HELEN J. MARBERRY, WARDEN

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

 

OPINION BELOW

The opinion of the court of appeals (Pet. App. 1a-17a) is reported at 556 F.3d 142.

JURISDICTION

The judgment of the court of appeals was entered on February 18, 2009. The petition for a writ of certiorari was filed on May 15, 2009. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(1).

STATEMENT

Petitioner filed a habeas petition under 28 U.S.C. 2241 challenging the decision of the Federal Bureau of Prisons (Bureau or BOP) to deny petitioner's request for an early release from imprisonment based on peti tioner's completion of a substance-abuse-treatment program. The district court denied the petition as moot. The court of appeals affirmed. Pet. App. 1a-17a.

1. a. In July 1992, a district court sentenced peti tioner to 63 months of imprisonment, to be followed by four years of supervised release, for possession of mari juana with the intent to distribute it. In November 1994, petitioner was sentenced in a second federal case to a concurrent term of 62 months of imprisonment for con spiring to distribute and to possess with intent to dis tribute a controlled substance and conspiring to launder monetary instruments. While serving his sentences, petitioner completed the institutional and community- based components of the Bureau's Residential Drug Abuse Program (RDAP) and became eligible for early release under 18 U.S.C. 3621(e)(2)(B). Pet. App. 1a-2a; Gov't C.A. Br. 6-7.

Section 3621(e)(2)(B) provides that, if a federal pris oner convicted of a nonviolent offense successfully com pletes a program of residential substance-abuse treat ment, the period that the prisoner will remain in custody "may be reduced by the Bureau of Prisons" by "not more than one year from the term the prisoner must otherwise serve." 18 U.S.C. 3621(e)(2)(B). Section 3621 vests the Bureau with "discretion to reduce the term of imprisonment" for eligible program participants and neither identifies any "circumstance[s] in which the Bu reau * * * must grant [a sentence] reduction" nor specifies any circumstances in which the Bureau "is for bidden" from exercising such authority. Lopez v. Davis, 531 U.S. 230, 241-242 (2001). "[T]he Bureau thus has the authority, but not the duty, * * * to reduce [a] term of imprisonment" under Section 3621(e)(2)(B). Id. at 241.

To implement Section 3621(e)'s early-release incen tive, the Bureau promulgated 28 C.F.R. 550.58. See Lopez, 531 U.S. at 233. Section 550.58 specified that, "[a]s an exercise of the discretion vested in the [Bu reau]," the Bureau would decline to grant early release to certain categories of inmates, and would "consider[] for early release" inmates deemed otherwise "[e]ligible" for a favorable exercise of discretion. 28 C.F.R. 550.58(a) and (b). That regulation did not specify that the Bureau must exercise its discretion to grant certain inmates early release, nor did it limit the considerations that the Bureau would consider in exercising its discre tion. Instead, Section 550.58 simply provided that "an inmate * * * may receive a [sentence] reduction of up to 12 months" if the inmate "is approved for early re lease" by the Bureau. 28 C.F.R. 550.58(c).1

In June 1998, the Bureau granted petitioner an early release from imprisonment pursuant to Section 3621(e)(2)(B). See Gov't C.A. Br. 7.

b. While on supervised release, petitioner committed new drug crimes and was convicted in the United States District Court for the Northern District of Ohio of con spiring to possess at least 100 kilograms of marijuana, with the intent to distribute it. In July 2003, the district court sentenced petitioner to 57 months of imprison ment, to be followed by three years of supervised re lease. That court also sentenced petitioner to a concur rent term of three months of imprisonment for violating his supervised release in the earlier cases. Petitioner's statutory release date was September 16, 2007. Pet. App. 2a, 5a; Gov't C.A. Br. 7.

The Bureau again approved petitioner for participa tion in its RDAP, but, in 2005, advised petitioner that, based on BOP Program Statement 5331.01, the Bureau would not exercise its authority to grant petitioner early release from imprisonment. See Gov't C.A. Br. 7-8. Paragraph 5(c) of Program Statement 5331.01 provided that "[i]nmates returning on supervised release viola tions and/or inmates who are sentenced for new offenses are not eligible for early release if they received it previ ously." Pet. App. 3a & n.2 (quoting BOP Program State ment 5331.01, at para. 5 (Sept. 29, 2003, as corrected, Oct. 3, 2003)).2

In December 2005, petitioner began the institutional component of the Residential Drug Abuse Program. In March 2006, the BOP denied petitioner's administrative appeal requesting an early release under 18 U.S.C. 3621(e)(2)(B). See Pet. App. 4a.

2. In June 2006, petitioner filed a habeas petition under 28 U.S.C. 2241 in the United States District Court for the Western District of Pennsylvania, challenging the Bureau's denial of early release on the ground that, as relevant here, Program Statement 5331.01 was in valid because it was promulgated without notice and comment purportedly required by the Administrative Procedure Act (APA), 5 U.S.C. 553. As relief, petitioner sought an order directing "the Bureau of Prisons to grant [petitioner] a § 3621(e) sentence reduction." Pet. Mot. for Relief Pursuant to 28 U.S.C. 2241, at 9; see Pet. App. 4a; Gov't C.A. Br. 8.

In October 2006, while petitioner's habeas case was pending, petitioner completed the institutional compo nent of RDAP. In March 2007, petitioner began the transitional, community-based component of RDAP upon his transfer to a halfway house. If the Bureau de termines that an inmate who is eligible for early release has successfully completed the entire Residential Drug Abuse Program, the inmate may be released early from imprisonment purusant to 18 U.S.C. 3621(e)(2)(B).

On August 31, 2007, a magistrate judge recom mended that the district court grant petitioner's habeas petition and order his immediate release. Pet. App. 27a- 49a. The magistrate judge concluded that Paragraph 5(c) of the Program Statement was invalid because it was a legislative rule that the Bureau promulgated with out public notice and comment required by the APA. Id. at 4a-5a.

On September 7, 2007, the Bureau released peti tioner from custody and subsequently filed a "Notice of Suggestion of Mootness." The district court agreed that petitioner's release from custody rendered his habeas petition moot. Pet. App. 18a-26a. The court acknowl edged that petitioner's sentencing court in Ohio had dis cretionary authority to reduce or eliminate petitioner's remaining term of supervised release under 18 U.S.C. 3583(e), but it rejected as speculative petitioner's con tention that the Ohio court would do so if the district court resolved petitioner's habeas petition. Pet. App. 5a-6a & n.3, 20a-22a.

3. The court of appeals affirmed. Pet. App. 1a-17a. Relying on Spencer v. Kemna, 523 U.S. 1 (1998), the court stated that, once a prisoner has completed his term of imprisonment, a case challenging the adminis tration of his completed prison term will become moot unless he continues to suffer an "actual injury traceable to the defendant" that is "likely to be redressed by a favorable judicial decision." Pet. App. 9a (quoting Spencer, 523 U.S. at 7). The court explained that peti tioner "did not challenge the validity or reasonableness of" his three-year term of supervised release and, in stead, challenged "only what the BOP had done" with respect to petitioner's request for early release from imprisonment, which, in petitioner's view, resulted in a "continuing injury" by "delay[ing] commencement of [petitioner's] validly imposed term of supervised re lease." Id. at 10a-11a. The court of appeals held that such an injury did not support Article III jurisdiction because a favorable judicial decision would not "likely" redress the claimed injury. Id. at 11a-13a.

The court of appeals concluded that "[t]he 'likely' outcome here" is that an order from a Pennsylvania dis trict court in this habeas case will not "cause the sen tencing court in Ohio to reduce [petitioner's] term of supervised release." Pet. App. 12a. The court of ap peals explained that a sentencing court, when making the "discretionary decision" under Section 3583(e) to modify a term of supervised release, "must consider many factors, * * * including those that bear directly on the objectives of supervised release." Ibid. "From a practical, and legal, standpoint," the court found, it is unlikely that "a sentencing judge, having imposed a spe cific term of imprisonment and supervised release, would alter his view as to the propriety of that sentence because the BOP required the defendant to serve it." Ibid.

The court further explained that the decision to reduce a term of supervised release under Section 3583(e) "generally is more directly influenced by the particular defendant and the underlying conduct that formed the basis for the term of supervised release" and that a favorable exercise of sentencing discretion was improbable here, "especially given [petitioner's] past recidivism." Pet. App. 12a-13a. Thus, petitioner's ha beas claim was moot because the possibility of a discre tionary reduction in petitioner's supervised release term to serve as "equalizer for his [purportedly over-length] incarceration" was "so speculative" as to render a ha beas ruling advisory. Id. at 13a.

The court interpreted Levine v. Apker, 455 F.3d 71 (2d Cir. 2006), and Mujahid v. Daniels, 413 F.3d 991 (9th Cir. 2005), cert. denied, 547 U.S. 1149 (2006), as finding Article III jurisdiction "where a 'possibility' ex ists that a court would reduce a term of supervised re lease in situations similar to this," but it found such rea soning to be "[un]supportable" because a showing of a "'possibility' of redress" is insufficient to satisfy Spen cer's requirement that an ongoing injury will "'likely' be redressed" by granting habeas relief. Pet. App. 14a, 16a.

ARGUMENT

Petitioner contends (Pet. 5-25) that the court of ap peals erred in dismissing his habeas petition as moot and that its decision conflicts with decisions of other courts of appeals. The court of appeals correctly dismissed peti tioner's case, and its fact-bound decision does not war rant this Court's review.

1. "It has long been settled that a federal court has no authority 'to give opinions upon moot questions or abstract propositions, or to declare principles or rules of law which cannot affect the matter in issue in the case before it.'" Church of Scientology v. United States, 506 U.S. 9, 12 (1992) (quoting Mills v. Green, 159 U.S. 651, 653 (1895)). Thus, "[t]o qualify as a case fit for federal- court adjudication, an actual controversy must be extant at all stages of review." Arizonans for Official English v. Arizona, 520 U.S. 43, 67 (1997) (internal quotation marks and citation omitted). "[T]hroughout the litiga tion, the plaintiff '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 v. Kemna, 523 U.S. 1, 7 (1998) (quoting Lewis v. Continental Bank Corp., 494 U.S. 472, 477 (1990)).

The completion of a criminal defendant's sentence will not normally moot an appeal challenging his convic tion because criminal convictions generally have "con tinuing collateral consequences" beyond just their sen tences. Spencer, 523 U.S. at 8, 12; see Sibron v. New York, 392 U.S. 40, 57-58 (1968). When a criminal convic tion is not itself challenged, however, the Article III analysis is different. See Spencer, 523 U.S. at 7-8.

The Court in Spencer "refused to extend [the] pre sumption of collateral consequences" beyond criminal convictions, 523 U.S. at 12, and held that Spencer's ha beas challenge to an order revoking his parole could not be sustained as a live Article III controversy based on the resulting term of imprisonment that injured Spencer because, once Spencer had served the prison time, that term of imprisonment could not "be undone," id. at 8; cf. Lane v. Williams, 455 U.S. 624, 631 (1982) ("Since re spondents elected only to attack their sentences, and since those sentences expired during the course of these proceedings, this case is moot."). The Court explained that a habeas plaintiff challenging such action after com pleting his prison term must therefore "demonstrate[]" that the action continues to cause "collateral conse quences adequate to meet Article III's injury-in-fact requirement." Spencer, 523 U.S. at 14; see id. at 12 (cit ing Williams, supra). The habeas plaintiff must not only show that such ongoing consequences are "trace able to the defendant['s]" challenged action, he must demonstrate that they are "likely to be redressed by a favorable judicial decision." Id. at 7 (citation omitted). Petitioner has failed to do so.

a. When the Bureau released petitioner from serv ing his term of imprisonment, petitioner effectively ob tained all the relief that he had sought in his habeas pe tition, i.e., an order directing "the Bureau of Prisons to grant [petitioner] a § 3621(e) sentence reduction." Pet. Mot. for Relief Pursuant to 28 U.S.C. 2241, at 9. The district court could not have granted petitioner any more effectual relief on his habeas petition than the Bu reau's own release order because a subsequent court order could not have resulted in any earlier release from imprisonment. Cf. Williams, 455 U.S. at 633 (holding that respondents' claims that they were not informed that they faced mandatory parole terms before pleading guilty were moot because their claims sought only imme diate release from custody and "[t]hrough the mere pas sage of time, respondents have obtained all the relief that they sought.").

b. To the extent that petitioner effectively sought a declaratory judgment that the Bureau erred in a past decision to deny petitioner an early release based on Paragraph 5(c) of BOP Program Statement 5331.01 (which petitioner asserts was improperly promulgated without APA notice-and-comment rulemaking), the court of appeals correctly determined that petitioner's requested relief was not "likely" to redress his claimed injury. Petitioner concedes that the court of appeals articulated the "correct[]" test under Spencer in "requir [ing] that [petitioner's] asserted injury be 'likely to be redressed by a favorable judicial decision'" and, thus, petitioner simply contends the court of appeals "misap plied that test" here. Pet. 22 (quoting Spencer, 523 U.S. at 7). The court of appeals, however, correctly rejected petitioner's assertion that it was not merely "possib[le]" but "probab[le]" (Pet. 23) that habeas relief by a Penn sylvania district court would cause petitioner's Ohio sen tencing court to exercise its discretion to reduce peti tioner's unexpired term of supervised release.

As the court of appeals explained, such sentencing relief is "speculative" and not "likely." Pet. App. 12a- 13a. Petitioner would have to file a Section 3583(e) mo tion in the Northern District of Ohio seeking to termi nate his term of supervised release and satisfy that court "that such action is warranted by [his] conduct * * * and the interest of justice," 18 U.S.C. 3583(e)(1). See Pet. App. 5a n.3, 12a. Petitioner has not filed such a motion. And, while petitioner contends (Pet. 19-20) that resolving his habeas petition will allow him to argue in such a motion that such a reduction is warranted be cause he was "unlawfully over-incarcerated," the court of appeals correctly recognized that the sentencing court's decision is purely "discretionary" (Pet. App. 12a) and that the Bureau's failure to publish its rule would be "simply one factor, among many," Spencer, 523 U.S. at 14 (citation omitted), that the sentencing court must consider, and hardly a persuasive one at that. Pet. App. 12a-13a (discussing "many factors" that influence the "discretionary decision"). Petitioner is a repeat offender who, after completing BOP's drug-abuse program in his first incarceration, violated the terms of his supervised release by committing a serious drug offense and again required additional residential drug-abuse assistance while in custody. That background and the sentencing court's own requirement that petitioner "participate in an outpatient program * * * for the treatment for drug and/or alcohol abuse" during his period of super vised release (id. at 59a-60a) make clear that court of appeals correctly concluded that the sentencing court would not "likely" terminate petitioner's supervised re lease term.

The court of appeals correctly determined that it would be unlikely that the sentencing court would re duce petitioner's supervised-release term even if peti tioner were "over-incarcerated" (Pet. 20) because incar ceration and supervised release are not "interchange ab[le]" so as to warrant a reduction here to "offset [any] excess prison time." Pet. App. 12a-13a (discussing United States v. Johnson, 529 U.S. 53 (2000)). "Super vised release fulfills rehabilitative ends, distinct from those served by incarceration," and is "intended * * * to assist individuals in their transition to community life." Johnson, 529 U.S. at 59. Petitioner's recidivism and substance-abuse history shows that he is in particu lar need of such assistance. In other words, "[t]he objec tives of supervised release would be unfulfilled if excess prison time were to offset and reduce terms of super vised release." Ibid. (emphasis added). The sentencing court would likely recognize that reality.

And, while Johnson observed that a sentencing court may modify or terminate an individual's supervised re lease conditions under Section 3583 "as it sees fit" in light of the equitable considerations that exist "when an individual is incarcerated beyond the proper expiration of his prison term," 529 U.S. at 60, that observation is "nothing more or less than an appropriate reference to the discretion of a sentencing court to modify a term of supervised release pursuant to § 3583(e)." Pet. App. 16a. Unlike Johnson, where the "equitable consider ations" were of "great weight" because Johnson was incarcerated for a conviction that was subsequently va cated, 529 U.S. at 60, petitioner served a lawfully im posed sentence of imprisonment, and it is exceedingly "doubt[ful]" that the very judge that imposed that sen tence "would alter his view as to the propriety of th[e] sentence because the BOP required [petitioner] to serve it." Pet. App. 12a.

Petitioner's fundamental assumption that a habeas court could have directed the Bureau to grant petitioner an early release under Section 3621(e)(2)(B), is itself incorrect. That provision vests the Bureau, not the courts, with "discretion to reduce [a] term of imprison ment" for eligible inmates, and it imposes no restriction on that discretion by specifying any "circumstance[s] in which the Bureau * * * must grant [a] reduction." Lopez v. Davis, 531 U.S. 230, 241-242 (2001). Congress thus gave the Bureau "the authority, but not the duty, * * * to reduce [a] term of imprisonment" by an amount of time (no more than one year) of the Bureau's choosing. Id. at 241; see id. at 239-240 ("agree[ing]" with the Bureau that "Congress simply 'did not address how the Bureau should exercise its discretion'").

Even if Paragraph 5(c) of Program Statement 5331.01 were procedurally invalid, that conclusion would not by itself entitle petitioner to an early release from his valid prison sentence in this habeas proceeding. The very most that a habeas court properly could do is order the Bureau to reconsider its early-release decision with out considering Paragraph 5(c). Cf. INS v. Ventura, 537 U.S. 12, 16 (2002) (holding that courts sitting in judicial review of agency action must normally remand a case to an agency after finding agency error because, when the "law entrusts the agency to make [a] decision," a "judi cial judgment cannot be made to do service for an ad ministrative judgment") (quoting SEC v. Chenery Corp., 318 U.S. 80, 88 (1943); Gonzales v. Thomas, 547 U.S. 183, 186 (2006) (same).

In short, judicial habeas relief in this case would be highly unlikely to cause his Ohio sentencing court to reduce petitioner's term of supervised release. Not only is that judicial decision a discretionary one under Sec tion 3583(e) for which the relevant facts of this case tilt heavily against a reduction, petitioner's claim to early release from imprisonment itself depends on the Bu reau's administration of its early-release authority and drug-treatment program, not on a decision of the habeas court. Where the redressability of a claimed Article III injury "depends on the unfettered choices made by inde pendent actors not before the courts and whose exercise of broad and legitimate discretion the courts cannot pre sume either to control or to predict," it is "substantially more difficult" to establish Article III jurisdiction and the plaintiff must demonstrate "that those choices have been or will be made in such manner as to * * * permit redressability of injury." See Lujan v. Defenders of Wildlife, 504 U.S. 555, 562 (1992) (quoting ASARCO Inc. v. Kadish, 490 U.S. 605, 614-615 (1989)). The court of appeals correctly concluded on the facts of this case that habeas relief was not "likely" to redress the injury claimed by petitioner.

c. There is no merit to petitioner's contention (Pet. 17-18) that he need not demonstrate any ongoing collat eral consequences because he is still serving an unex pired sentence of supervised release. It is the relief sought by petitioner that must likely redress his claimed injury, and the habeas relief in this case is not likely to redress petitioner's injury by reducing his supervised- release term. For similar reasons, petitioner is incor rect in his contention (Pet. 22) that it "should make no difference" that he has presented his claim to a habeas court rather than to the sentencing court with authority to reduce his sentence. The key point is that the avail able relief that petitioner requests in such courts is dif ferent, and it is the requested relief that itself must "likely" redress petitioner's asserted injury.

Petitioner claims (Pet. 20-22 & n.10) that "analogous" cases have held that a defendant's challenge on direct appeal to a sentence involving imprisonment and super vised release is not mooted by the completion of the term of imprisonment if the district court has the au thority to reduce the term or conditions of supervised release. Contrary to petitioner's suggestion (Pet. 20), none of those cases held that the mere possibility of re ducing a term of supervised release categorically pre cludes a finding of mootness. They instead require a showing of collateral consequences and illustrate that, when a sentence is itself on appeal, a favorable decision affecting one component of the sentence normally per mits the sentencing court to revisit other components of the sentencing package on remand. Thus, "in the typical case, * * * an appellate court could fairly deem it likely enough that, if the [sentencing issue on appeal] were decided in favor of the defendant, the district court would use its discretion on remand to modify the length of a term of supervised release." United States v. Blackburn, 461 F.3d 259, 262 n.2 (2d Cir. 2006) (empha sis added), cert. denied, 550 U.S. 969 (2007); see United States v. McCoy, 313 F.3d 561, 564 (D.C. Cir. 2002) ("[T]he controlling statutes [18 U.S.C. 3583(c) and 3553(a)] explicitly make the Guidelines computation [of McCoy's term of imprisonment] relevant to McCoy's supervised release" and that "[r]esentencing under a revised Guidelines computation clearly could benefit McCoy.").

d. Petitioner contends (Pet. 24) that dismissal of his case "permitted BOP effectively to shield" its actions from judicial review. This Court rejected a similar argu ment in Spencer. "[M]ootness, however it may have come about, simply deprives [the Court] of [its] power to act" and, here, "there is nothing for [the habeas court] to remedy, even if [it] were disposed to do so." Spencer, 523 U.S. at 18. Article III courts "are not in the busi ness of pronouncing that past actions which have no de monstrable continuing effect were right or wrong." Ibid. As for petitioner's assertion that the court of ap peals' decision leaves the Bureau "free 'to return to [its] old ways,'" Pet. 25 (citation omitted; brackets in origi nal), the Bureau has demonstrated otherwise by rescind ing Paragraph 5(a) and promulgating the challenged policy in a notice-and-comment rulemaking that began before petitioner filed his habeas action. See 74 Fed. Reg. 1894-1895, 1899 (2009) (final rule to be codified at 28 C.F.R. 550.55(b)(7) (2009)); 69 Fed. Reg. 39,889, 39,892 (2004) (proposed rulemaking).

2. Petitioner contends (Pet. 5-15) that review is war ranted to resolve the conflict among the courts of ap peals on whether a habeas petitioner's post-conviction challenge to the length of his sentence becomes moot when he has served his term of imprisonment and is on supervised release. Although the opinion of the court of appeals is in tension with decisions of the Second and Ninth Circuits, this Court's review is not warranted in this case.

a. In Levine v. Apker, 455 F.3d 71 (2006), the Sec ond Circuit held that a challenge to the Bureau's amended rule governing placements in community cor rectional centers remained live despite the habeas peti tioner's discharge from prison into supervised release, because the district court "might * * * modify the length of [his] supervised release." Id. at 77. The court of appeals reached that conclusion in the absence of any briefing on mootness, ibid., and thus without affording the government the opportunity to argue that such a result was unlikely. Cf. Blackburn, 461 F.3d at 262 (subsequent Second Circuit decision relying on record to reject defendant's asserted claim of collateral conse quences; holding that inmate's release rendered the case moot).

In Mujahid v. Daniels, 413 F.3d 991 (9th Cir. 2005), cert. denied, 547 U.S. 1149 (2006), the petitioner filed a habeas petition to contest the BOP's interpretation of the "good time credit" provisions in 18 U.S.C. 3624(b), but was serving his term of supervised release at the time of the appeal. Concluding that its previous decision in Gunderson v. Hood, 268 F.3d 1149 (9th Cir. 2001), "controls our mootness inquiry," the Ninth Circuit held that "[t]he 'possibility' that the sentencing court would use its discretion to reduce a term of supervised release under 18 U.S.C. § 3583(e)(2) was enough to prevent the petition from being moot." Mujahid, 413 F.3d at 994- 995 (citations omitted).

Neither Mujahid nor Gunderson properly analyzed the mootness issue in light of Spencer. Mujahid cited Spencer for the proposition that a plaintiff must suffer "an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision," 413 F.3d at 994 (quoting Spencer, 523 U.S. at 7) (emphasis added), but then adopted the Gunderson standard re quiring only a "possibility" of such redress, which Spen cer rejected. See Spencer, 523 U.S. at 14 (rejecting reli ance on asserted injury that was only a "possibility" and not "even a probability"). Not only did Gunderson fail to consider Spencer's teachings, Mujahid itself did not acknowledge that Spencer holds that it is a habeas petitioner's burden, and not the government's, to dem onstrate that collateral consequences exist. See ibid. ("The question remains, then, whether petitioner dem onstrated such consequences."); see also, e.g., United States v. Hardy, 545 F.3d 280, 284 (4th Cir. 2008); United States v. Vera-Flores, 496 F.3d 1177, 1181 (10th Cir. 2007); United States v. Mercurris, 192 F.3d 290, 294 (2d Cir. 1999).

The "possibility" standard reflected in those cases is thus incorrect. But even petitioner does not seem to claim that the mere "possibility" of a discretionary re duction is adequate to save a case from mootness. Peti tioner has conceded that "[t]he Third Circuit correctly noted that Spencer requires that an asserted injury be 'likely to be redressed by a favorable judicial decision.'" Pet. 22 (quoting Spencer, 523 U.S. at 7). Petitioner thus presents the more modest claim that the court of ap peals "misapplied that test." Ibid. As explained above, the court of appeals' assessment of the likelihood that the habeas relief sought by petitioner would ultimately reduce his term of supervised release in a separate pro ceeding before a separate court is correct. That fact- bound determination does not warrant this Court's re view.

b. Petitioner cites (Pet. 11) Dawson v. Scott, 50 F.3d 884 (11th Cir. 1995), as inconsistent with the decision below. That case, decided before both Johnson and Spencer, stated in a footnote that a habeas petitioner's challenge to the Bureau's calculation of sentencing credit was not moot because, although the petitioner had been released from prison, "success * * * could alter the supervised release portion of his sentence." Id. at 886 n.2. In its unpublished opinion in Mitchell v. Middlebrooks, 287 Fed. Appx. 772, 775 (2008), the Elev enth Circuit stated that the reasoning of Dawson is not inconsistent with Johnson, but did not address whether Dawson's standard for determining collateral conse quences comports with Spencer. In the absence of a more recent precedential decision by the Eleventh Cir cuit, petitioner has failed to show a division of authority with that court.

Petitioner also asserts (Pet. 12-13) that an intracir cuit conflict exists in the Fifth Circuit, but any such con flict would not warrant this Court's review. Wisniewski v. United States, 353 U.S. 901, 902 (1957) (per curiam). And, for the same reasons that the Ninth Circuit's deci sion in Mujahid contravenes Spencer, the Fifth Circuit's reliance on Mujahid in Johnson v. Pettiford, 442 F.3d 917 (5th Cir. 2006), is equally unfounded.

c. Petitioner overstates the case in asserting (Pet. 14) that, as a result of a division of authority, "identi cally situated petitioners have their habeas petitions decided or dismissed purely based on the happenstance of the circuit in which the case arises." In light of the fact-specific nature of the inquiry into the existence of collateral consequences and the likelihood that re quested relief will remedy such claimed injuries, it is significant that none of the cases that petitioner cites in support of a conflict addresses a challenge on procedural grounds to the Bureau's denial of early release from imprisonment or involved a former inmate who, like pe titioner, previously violated the terms of his supervised release. Both circumstances make it extremely unlikely that a former inmate would receive the benefit of a dis cretionary reduction in a term of supervised release from a sentencing court to offset any excess prison term that the inmate purportedly served.

3. Finally, this case presents a poor vehicle for fur ther review. Petitioner has been released from his term of imprisonment and can only obtain a reduction in his unexpired term of supervised release by filing an appro priate motion with his Ohio sentencing court under 18 U.S.C. 3583(e). Article III jurisdiction for the Ohio dis trict court to entertain that motion unquestionably ex ists because the requested relief (a reduction in a contin uing supervised-release term) would redress the injury claimed by petitioner (an ongoing restriction of his lib erty). The court's response to that motion, as a pruden tial matter, is unknown. The court might indicate that in no cirucmstances would it grant relief; or it (conceiv ably) could grant relief. Rather than litigate in this Court whether it is sufficiently "likely" that the Ohio district court might exercise its sentencing discretion favorably for petitioner if such a motion were filed, peti tioner should file the motion with that court while he still has time before his three-year term of supervised release expires.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

ELENA KAGAN
Solicitor General
LANNY A. BREUER
Assistant Attorney General
KIRBY A. HELLER
Attorney

SEPTEMBER 2009

And there is no assurance that, had the BOP been asked to reconsider the issue (or considered it at an earlier time), petitioner would have merited early release.

1 Section 550.58 was amended in 1997 and was not revised again until January 2009. See 74 Fed. Reg. 1892-1899 (2009).

2 Program Statement 5331.01 was rescinded and replaced by Pro gram Statement 5331.02 effective March 16, 2009. See BOP Program Statement 5331.02 (corrected Feb. 20, 2009), available at <http://www. bop.gov/policy/progstat/5331_002.pdf>.