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Payne v. McTighe

United States District Court, D. Montana, Missoula Division

October 10, 2018

TYRONE EVERETT PAYNE, Petitioner,
v.
PAT MCTIGHE; ATTORNEY GENERAL OF THE STATE OF MONTANA; Respondents.

          FINDINGS AND RECOMMENDATIONS OF THE UNITED STATES MAGISTRATE JUDGE

          JEREMIAH C. LYNCH, UNITED STATES MAGISTRATE JUDGE.

         On June 27, 2018, Tyrone Everett Payne filed a petition seeking a writ of habeas corpus under 28 U.S.C. § 2254. Payne is a state prisoner proceeding pro se. His sentence expired on October 5, 2018.[1]

         Payne alleges that his right to due process, as outlined under Gagnon v. Scarpell, 411 U.S. 778 (1973) and Morrissey v. Brewer, 408 U.S. 471 (1972), was repeatedly violated during his revocation proceedings in the Montana state district court. (Doc. 1 at 4, ¶ 13(A); 5, ¶ 13(B); 7; 8-10). First, Payne alleges the evidence presented at his evidentiary hearing did not support a finding of revocation by a preponderance of the evidence. (Doc. 1 at 4, ¶ 13(A); 5, ¶ 13(B)). Next, Payne asserts the district court erroneously admitted hearsay testimony from Payne's supervising officer. Id. at 8-10. Finally, Payne alleges he was not provided adequate notice in order to prepare a defense prior to his revocation hearing, also in violation of his right to due process. Id. at 7.

         I. Background

         The Montana Supreme Court summarized Payne's procedural history as follows:

On January 6, 2014, Payne entered an "Alford" plea for Failure to Give Notice of Change of Address by a Sexual or Violent Offender. The District Court then sentenced him to the Montana State Prison for three years, with credit for 147 days served and the remainder to be suspended and unsupervised probation. On March 14, 2014, the State filed its first Petition to Revoke alleging Payne violated his terms of probation. The District Court revoked Payne's sentence and re-imposed the fully suspended three-year term to Montana State Prison with credit for 156 days served, but required supervised probation. On September 18, 2015, the State filed a second Petition to Revoke based on probation violations. The District Court once again revoked Payne's probation, imposed a three-year suspended sentence, and ordered all previous conditions re-imposed. On August 25, 2016, the State filed its third Petition to Revoke based on new probation violations which included indecent exposure, methamphetamine use, and failure to report to probation officers. On September 28, 2016, the District Court held an evidentiary hearing. The District Court found Payne in violation of conditions #5 (failing to check in with probation officer), #9 (laws and conduct), and #10 (admission of methamphetamine use). The District Court determined the State failed to prove alleged violation under condition #13 (failure to obtain chemical dependency evaluation). On October 4, 2016, in open court, the District Court revoked Payne's sentence and sentenced him to three years in Montana State Prison with no time suspended and credited him for 364 days in custody. The District Court issued its order setting forth Payne's sentence on October 20, 2016.

State v. Payne, 2018 MT 147N, Mem. Op., ¶ 3 (Mont. June 12, 2018).[2]

         Payne filed a direct appeal following the revocation of his sentence, advancing due process claims similar to those raised in his federal petition. Payne's sentence was affirmed.

         II. Analysis

         As set forth above, all of the claims that Payne raises in the instant petition stem from the events leading to the 2016 revocation of his suspended sentence. Payne has now served out the entirety of his sentence and is under no form of supervision. See, (Doc. 4.) Payne's petition should be denied in its entirety as moot.

         Article III, § 2 of the United States Constitution requires a "case or controversy" for justiciability, meaning that an injury-in-fact has occurred. Throughout litigation an individual "must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision." Lewis v. Continental Bank Corp., 494 U.S. 472, 477 (1990). When an individual is incarcerated, a challenge to the validity of his conviction satisfies the case-or-controversy requirement: the ongoing incarceration constitutes a concrete injury and it is redressable by invalidation of the conviction. See, Spencer v. Kemna, 523 U.S. 1, 7 (1998). The Supreme Court has recognized that when challenging the conviction itself, the existence of collateral consequences sufficient to satisfy the case-or-controversy requirement is presumed. Id. at 8, citing Carafas v. LaVallee, 391 U.S. 234, 237-8 (1968). Examples of such consequences include making one: liable to deportation, ineligible for naturalization, unable to serve on a jury, unable to vote, or unable to hold office. See, Fiswickv. United States, 329 U.S. 211, 221-223 (1946). This presumption is justified because it is an "obvious fact of life that most criminal convictions do in fact entail adverse collateral legal consequences." Sibron v. New York, 392 U.S. 40, 55-6(1968).

         The analysis changes, however, once an individual has completed his sentence. In Spencer v. Kemna, the Court found that the same adverse legal consequences present for a criminal conviction were not found in parole revocation proceedings. In the revocation context, the Court held that without proof of ongoing collateral consequences from that revocation, an unconditional release from custody moots a defendant's challenge to his allegedly erroneous revocation. Spencer v. Kemna, 523 U.S. 1, 8-16 (1998).

         There, Spencer did not challenge his felony convictions, but rather the lawfulness of the termination of his parole status. At the time of the Court's decision, Spencer's reincarceration was over and could not "be undone." Id. at 8. Consequently, the Court declined to extend the presumption of collateral consequences that attach to criminal convictions in the revocation context, concluding that in what would otherwise be a moot case, a case or controversy exists only if the parties continue to have "a personal stake in the outcome," such that "an actual injury [is] traceable to the defendant and [is] likely to be redressed by a favorable judicial decision. Id., at 7. For a defendant who already has served his sentence, "some 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. Unlike a criminal conviction, "[n]o civil disabilities... result from a finding that an individual has violated his parole." Id. at 12, (quoting Lane v. Williams, 455 U.S. 624, 632 (1982)). Spencer was unable to establish adequate collateral consequences.

         Prior to Spencer, the Ninth Circuit held that a sentence could be challenged, even if it has been completely served, if there might be "'collateral consequences for a defendant in any possible future sentencing." United States v. Schmidt,99 F.3d 315, 317 (9th Cir. 1996); United States v. Dickey,924 F.2d 836, 838 (9th Cir. 1991). But in light of Spencer, the Circuit overruled prior precedent, holding that collateral consequences cannot be presumed where a defendant has already served his entire sentence. United States v. ...


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