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MELINDA HAAG (CABN 132612) United States Attorney MIRANDA KANE (CABN 150630) Chief, Criminal Division ADAM A. REEVES (NYBN 2363877) Assistant United States Attorney 450 Golden Gate Ave., Box 36055 San Francisco, California 94102 Telephone: (415) 436-7200 Fax: (415) 436-7234 E-Mail: adam.reeves@usdoj.gov Attorneys for Plaintiff

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Response by the United States to the Order to Show Cause, CR 94-0276 PJH

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF CALIFORNIA OAKLAND DIVISION UNITED STATES OF AMERICA, Plaintiff, v. CONNIE C. ARMSTRONG, JR., Defendant. ) ) ) ) ) ) ) ) ) ) No. CR 94-0276 PJH RESPONSE BY THE UNITED STATES TO THE ORDER TO SHOW CAUSE

The United States, by the undersigned counsel, hereby responds to the Courts June 30, 2011 Order to Show Cause requesting that the parties address whether the defendants successful completion of supervised release has rendered his 2255 motion moot. Even though he has now completed his sentence, the defendants 2255 motion is not moot because he filed it while in custody during his term of supervised release. Document 600 at 1 and 3; Petitions Supplemental Brief Regarding Mootness of 2255 Motion dated July 8, 2011 at 2 (agreeing with the Courts recitation of the procedural history). If a petitioner was in custody at the time he filed his federal habeas petition, his subsequent release from prison does not deprive the court of its jurisdiction so long as the

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adverse consequences of a criminal conviction remain. Carafas v. LaVallee, 391 U.S. 234, 238 (1968); United States v. Spawr Optical Research, Inc., 864 F.2d 1467, 1470 (9th Cir. 1988). Even though he was not in physical confinement, the defendant continued to be in custody during his term of supervised release for purposes of a habeas petition. Maleng v. Cook, 490 U.S. 488, 491 (1989) (prisoner who was on parole was still in custody under his unexpired sentence).1 The defendants 2255 motion is not moot because he is challenging his underlying conviction. A case becomes moot when it no longer presents a case or controversy under Article III, 2, of the Constitution. Spencer v. Kemna, 523 U.S. 1, 7 (1998); Wilson v. Terhune, 319 F.3d 477, 479 (9th Cir. 2003). A habeas petition challenging a conviction becomes moot only if it is shown that there is no possibility that any collateral legal consequences will be imposed on the basis of the challenged conviction. Sibron v. State of New York, 392 U.S. 40, 57 (1968). Collateral consequences that may prevent a habeas petition from being moot include the inability to vote, engage in certain businesses, hold public office, or serve as a juror. Maleng, 490 U.S. at 491-492. The Ninth Circuit has held that there is a presumption of collateral consequences flowing from every criminal conviction because a defendant faces the prospect of harsher punishment at a later date as a result of his conviction. Chaker v. Crogan, 428 F.3d 1215, 1219 (9th Cir. 2005); Chacon v. Wood, 36 F.3d 1459, 1463 (9th Cir. 1994) (Once convicted, one remains forever subject to the prospect of harsher punishment for a subsequent offense a result of federal and state laws that either already have been or may eventually be passed. As a result, there is simply no way ever to meet the Sibron mootness requirement: that there be no possibility of collateral legal consequences.) superseded on other grounds by statute, Morris v Woodford, 229 F.3d 775 (9th Cir. 2000). But see Larche v. Simons, 53 F.3d

In Maleng, the Supreme Court reversed a Ninth Circuit decision that would have extended the scope of in custody to include after the sentence had expired the period of time added to a subsequent sentence as a result of the initial conviction. The Supreme Court concluded that this interpretation stretches the language in custody too far. Maleng, 490 U.S. at 491.
Response by the United States to the Order to Show Cause, CR 94-0276 PJH

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1068, 1070-71 (9th Cir. 1995) (questioning the wisdom of an irrefutable presumption of collateral consequences). Accordingly, the completion of the defendants term of supervised release does not render his 2255 motion moot because he filed his habeas petition while he was in custody and there are still collateral consequences that flow from his criminal conviction. Dated: July 15, 2011 Respectfully submitted, MELINDA HAAG United States Attorney /s/

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Response by the United States to the Order to Show Cause, CR 94-0276 PJH

ADAM A. REEVES Assistant United States Attorney