In the
United States Court of Appeals
For the Seventh Circuit
No. 09-1031
P AUL N. E ICHWEDEL,
Petitioner-Appellant,
v.
B RAD C URRY, the Chief of
Parole for the Illinois Department
of Corrections,
Respondent-Appellee.
Appeal from the United States District Court
for the Northern District of Illinois, Western Division.
No. 3:08-cv-50077—Philip G. Reinhard, Judge.
MOTION TO DISMISS
N OVEMBER 2, 2012
Before R IPPLE, M ANION and SYKES, Circuit Judges.
R IPPLE, Circuit Judge. Paul Eichwedel petitioned for
habeas corpus relief challenging the Illinois Department of
This opinion was released initially in typescript form.
2 No. 09-1031
Corrections’ (“IDOC”) revocation of six months of his
good-conduct credits. The credits were revoked under a
provision of state law that permits such penalties for
prisoners who file frivolous motions in litigation
against the state. See 730 ILCS 5/3-6-3(d). On August 29,
2012, we concluded that Mr. Eichwedel’s claim turns on
an unresolved question of state law. We therefore
certified that question to the Supreme Court of Illinois.
The Justices of that court have accepted our certification.
Respondent Brad Curry now moves to dismiss the
appeal as moot. In his opening brief, Mr. Eichwedel
had informed us that three months of good-conduct
credits had been restored. Mr. Curry now repre-
sents—and Mr. Eichwedel does not dispute—that, on
July 12, 2012, IDOC restored the remaining three
months of Mr. Eichwedel’s previously revoked good-
conduct credits. He began his mandatory supervised
release on October 3, 2012. Because Mr. Eichwedel now
has received all of the relief that he seeks in this
habeas action, Mr. Curry asks that we withdraw the
certified question and dismiss the appeal.
We agree that the case is now moot and that none of
the exceptions to the mootness doctrine are applicable.
Accordingly, with our appreciation to the Supreme
Court of Illinois for having accepted our certification,
we now withdraw that certification and dismiss the
appeal as moot.
No. 09-1031 3
I
BACKGROUND
We assume familiarity with our opinion of August 29,
2012, Eichwedel v. Chandler, No. 09-1031,
2012 WL 3711880
(7th Cir. Aug. 29, 2012), and set forth here only those
facts necessary to an understanding of the matter
now before us.
Mr. Eichwedel began his incarceration in October 1987.
In 2008, he petitioned for federal habeas corpus relief,
challenging IDOC’s revocation of six months of his good-
conduct credits. The credits had been revoked under
a provision of state law that provides penalties for pris-
oners who file frivolous motions, as defined in the
statute, in litigation against the state. The district
court denied relief, and Mr. Eichwedel appealed.
On August 29, 2012, we concluded that Mr. Eichwedel’s
habeas claim turns on an unresolved question of state
law that is likely to recur. We therefore certified the
following question to the Supreme Court of Illinois:
As of the date Mr. Eichwedel’s state court chal-
lenge to the revocation of his good-conduct credits
became final, was the State required to establish,
in order to revoke a prisoner’s good-conduct
credit, either that the court making the finding
of frivolousness had determined specifically that
the filing satisfied one of the definitions of frivo-
lousness in 730 ILCS 5/3-6-3(d) or that the court
had otherwise made its intent to invoke 730
ILCS 5/3-6-3(d) known?
Eichwedel,
2012 WL 3711880, at *16.
4 No. 09-1031
At the time we certified this question to the Supreme
Court of Illinois, we had not been informed by counsel
that the last three months of Mr. Eichwedel’s good-time
credits had been restored.1 Nevertheless, Mr. Curry now
moves to dismiss the appeal as moot. He represents
that, on July 12, 2012, IDOC restored the remaining three
months of Mr. Eichwedel’s previously revoked good-
conduct credits and that he began his mandatory super-
vised release on October 3, 2012.
II
DISCUSSION
A case becomes moot when it no longer presents a
case or controversy under Article III, Section 2 of the
Constitution. “In general a case becomes moot when the
1
There is no suggestion in the record that counsel willfully
withheld this information from the court. Nor is there any
evidence that counsel was negligent in maintaining contact
with their clients. We are constrained to point out, however,
that counsel should take reasonable steps to remain informed
of developments in the client’s case and to report those de-
velopments to the court. See Fusari v. Steinberg,
419 U.S. 379, 390-
91 (1974) (Burger, C.J., concurring). We are aware, of course,
of the difficulties that counsel experience in keeping in touch
with an incarcerated individual and of the difficulties
presented to government counsel in dealing with client agen-
cies. With respect to the latter situation, this case suggests that
communication between the Office of the Attorney General of
Illinois and IDOC needs to be reevaluated and improved.
No. 09-1031 5
issues presented are no longer live or the parties lack
a legally cognizable interest in the outcome.” Murphy v.
Hunt,
455 U.S. 478, 481 (1982) (quoting United States
Parole Comm’n v. Geraghty,
445 U.S. 388, 396 (1980)) (inter-
nal quotation marks omitted); see also Powell v. McCormack,
395 U.S. 486, 496 (1969). In claiming that this case is
moot, Mr. Curry takes the view that there will be no
legally cognizable collateral consequences from the
prior revocation and that the case does not fall within
the exception for cases “capable of repetition, yet
evading review.” Weinstein v. Bradford,
423 U.S. 147, 148-49
(1975) (per curiam). Mr. Eichwedel takes the opposite
view. He submits that his appeal is not moot because
he suffered collateral consequences from the revocation
of his good-conduct credits and because his case falls
within the “capable-of-repetition-yet-evading-review”
exception to the mootness doctrine. We shall examine
each of these contentions in turn.
A.
We first examine whether Mr. Eichwedel faces
sufficient collateral consequences to avoid a finding of
mootness. In Spencer v. Kemna,
523 U.S. 1, 7 (1998), the
Supreme Court repeated the well-established principle
that, with respect to a criminal conviction, once a con-
vict’s sentence ends, “some concrete and continuing in-
jury other than the now-ended incarceration or parole—
some ‘collateral consequence’ of the conviction—must
exist” to justify the continued maintenance of the action.
Mr. Eichwedel attempts to apply this principle to his
6 No. 09-1031
habeas action for the loss of good-time credits. He con-
tends that, if his good-conduct credits had not been
revoked, he would have been eligible to apply for up to
90 days of meritorious good-time credits under 730 ILCS
5/3-6-3(a)(3). He urges that, had he been released 90 days
earlier, he could have started his supervised release at
an earlier date and therefore would have completed his
sentence sooner. In his view, remaining on supervised
release for an additional three months constitutes a
major restraint on his freedom and is the sort of serious
collateral consequence that is sufficient to avoid mootness.
Mr. Curry disagrees. He contends that the alleged
injury is too speculative. At best, Mr. Eichwedel would
only have been eligible to receive up to 90 additional days
of credit. The decision whether to grant that credit
is within the “sole discretion” of the IDOC Director or
his or her designee. 730 ILCS 5/3-6-3(a)(3). Mr. Curry
further argues that, even if Mr. Eichwedel were entitled
to (rather than just eligible for) good-conduct credit,
he could not show that the injury would be redressable
by a decision in his favor in this litigation.
Mr. Curry’s position is persuasive. Although we
presume that a criminal conviction has collateral conse-
quences,2 we do not indulge in the same presumption
with respect to prison disciplinary proceedings. Spencer,
523 U.S. at 7-16 (declining to extend presumption of
2
Spencer v. Kemna,
523 U.S. 1, 9-10 (1998); Sibron v. New York,
392 U.S. 40, 54-57 (1968); Diaz v. Duckworth,
143 F.3d 345, 346
(7th Cir. 1998).
No. 09-1031 7
collateral consequences from convictions to revocations
of parole and rejecting defendant’s assertions of concrete
injuries-in-fact as too speculative); Cochran v. Buss,
381
F.3d 637, 640-41 (7th Cir. 2004) (explaining that the pre-
sumption of collateral consequences has not been
extended to prison disciplinary proceedings); Diaz v.
Duckworth,
143 F.3d 345, 346 (7th Cir. 1998) (same). Indeed,
after Spencer, it is unclear whether a prisoner may
allege sufficient collateral consequences from a prison
disciplinary action to avoid dismissal after physical
custody has ended. See Cochran,
381 F.3d at 641.
Assuming for the sake of argument that such collateral
consequences of a disciplinary proceeding can be
shown, it is clear that, after Spencer, the burden is on
Mr. Eichwedel to establish those consequences. He has
not met this burden. The best that Mr. Eichwedel can do
is to point to the possibility that he might have served
a shorter period of incarceration before beginning his
period of supervised release. All he can suggest is that
prison authorities might have seen fit to grant him a
reduction in the days he had to serve.3 Such a deficiency
is not sufficient to establish a continuing controversy
between Mr. Eichwedel and IDOC. See Spencer,
523 U.S.
at 14-15 (fact that challenged parole revocation could
be used to deny future parole is not sufficient collateral
consequence to maintain standing where parole board
is vested with “ ‘almost unlimited discretion’ ” to grant
3
Mr. Eichwedel does not suggest any other possible collateral
consequences.
8 No. 09-1031
or deny parole).4 Moreover, even if Mr. Eichwedel had
been guaranteed additional good-conduct credits, a
ruling in his favor would not redress his injury. The fact
remains that he is now released and the amount of
time that he spent in prison cannot be undone.
B.
We now examine the well-established exception to
the mootness doctrine for disputes capable of repetition
yet evading review. See Weinstein,
423 U.S. at 148-49.
This exception applies when “(1) the challenged action
[is] in its duration too short to be fully litigated prior to
its cessation or expiration, and (2) there [is] a reasonable
expectation that the same complaining party [will]
be subjected to the same action again.” Turner v. Rogers,
131 S. Ct. 2507, 2515 (2011) (alterations in original)
(quoting Weinstein,
423 U.S. at 149).
Mr. Eichwedel contends that he diligently pursued his
litigation through state and federal court but was not
able to get a ruling on the central question of the case
4
See also Phifer v. Clark,
115 F.3d 496, 500 (7th Cir. 1997)
(“possible discretionary actions that may or may not affect
future parole decisions” are too “speculative”); Luken v. Scott,
71 F.3d 192, 193 (5th Cir. 1995) (“The loss of the opportunity
to earn good-time credits, which might lead to earlier parole,
is a collateral consequence of [the petitioner’s] custodial
status. Yet, such speculative, collateral consequences of
prison administrative decisions do not create constitutionally
protected liberty interests.”).
No. 09-1031 9
from any court except the trial court before his release
date. He argues, therefore, that his case is “too short to
be fully litigated prior to its cessation or expiration.”
Id.
Mr. Eichwedel also contends that, because the question
certified to the Supreme Court of Illinois is likely to
impact many prisoners and because prisoners with
short sentences are unlikely to be able to obtain review,
the court should apply the capable-of-repetition-yet-
evading-review exception. See United States v. Laguna,
693 F.3d 727, 730 (7th Cir. 2012) (applying the excep-
tion when prisoner was sentenced to eighteen months’
imprisonment). He notes that we recognized that the
central issue in this case will affect many prisoners
when we said that “certification presents the optimal
method of assuring respect for the decision of the
state courts as to the elements of the offense and of as-
suring that an issue which will recur frequently in
both state and federal courts within Illinois, but which
might not reach appellate courts with the same
frequency, is decided definitively.” Eichwedel,
2012 WL
3711880, at *15. Mr. Eichwedel further points out that
nearly forty percent of people sent to prison each
month are there because of parole violations, so it is
more than merely speculative that he could return to
prison. Additionally, he has a history of diligently pro-
tecting his rights while in confinement, filing six federal
cases from 1991 to 2009, and would be similarly diligent
if returned to prison.
Mr. Curry argues that, although Mr. Eichwedel’s law-
suit became moot before he could fully litigate his
10 No. 09-1031
federal habeas appeal, there is nothing to suggest that
this type of case “is always so short as to evade review.”
Spencer,
523 U.S. at 18 (emphasis added); see also Hickman
v. Missouri,
144 F.3d 1141, 1143 (8th Cir. 1998) (stating
that the “evading-review” prong focuses on “ ‘whether
the [challenged] activity is by its very nature short in dura-
tion, so that it could not, or probably would not, be able
to be adjudicated while fully alive’ ”) (alteration in origi-
nal) (quoting Clark v. Brewer,
776 F.2d 226, 229 (8th
Cir. 1985)).
Mr. Curry further notes that Mr. Eichwedel cannot
meet the second prong of the established inquiry for the
invocation of this exception: whether there is a rea-
sonable likelihood that the same complaining party will
be subjected to the same action again. He submits
that Mr. Eichwedel is unlikely to have good-conduct
credits revoked again for filing a pleading that a court
finds to be frivolous. Although Mr. Eichwedel could
be reincarcerated if his parole were revoked, he asserts
that the likelihood is too remote that, while incar-
cerated, he also would file another lawsuit against the
State that a court would determine to be frivolous
without making an express finding and that IDOC
would revoke his good-conduct credits based on that
finding.
In evaluating these arguments, we start with the Su-
preme Court’s admonition that unilateral actions
taken after a case is in litigation “designed to insulate a
decision from review . . . must be viewed with a critical
eye.” Knox v. Serv. Emps. Int’l Union, Local 1000, 132 S. Ct.
No. 09-1031 11
2277, 2287 (2012). Here, where Mr. Curry has given us
no reason unrelated to the litigation for IDOC’s
largess toward Mr. Eichwedel, this counsel must be
taken to heart. Nevertheless, although we must scrutinize
Mr. Curry’s argument with great care and circumspec-
tion, we must apply, in the end, the established test
for determining whether the case is truly moot.
We note at the outset that there is certainly merit to
Mr. Eichwedel’s contention that this situation will recur
again and that, when it does, it well might evade review.
In our earlier opinion, we stated our belief that, until
the matter is settled by Illinois, the situation con-
fronting Mr. Eichwedel will reoccur. We also believe that
there is merit to the prediction that, for many inmates
in Illinois who have sentences shorter than the one im-
posed on Mr. Eichwedel, it is likely that the prisoner’s
release date will occur before the claim is litigated fully.
We cannot agree, however, that there is a “reasonable
expectation” that this situation will reoccur to
Mr. Eichwedel. His submission to the contrary is based
on several interdependent contingencies, each of which
is entirely speculative in nature. For Mr. Eichwedel to
find himself in the same situation he must: (1) violate
the conditions of his supervisory release; (2) be
reincarcerated as a result of that violation; (3) file a
lawsuit in state or federal court; (4) have a pleading in
his lawsuit be deemed “frivolous”; (5) have the ruling
court fail to designate that it is employing the term
“frivolous” in the manner defined by the Illinois statute;
(6) be subject to a prison disciplinary proceeding as a
12 No. 09-1031
result of the court’s designation of his suit as frivolous;
and (7) suffer the loss of good-time credits as a penalty.
The possibility of such a situation occurring is, to put
it mildly, speculative and therefore far from the “rea-
sonable expectation” required by the prevailing test.
This situation is simply not the same as the one
that recently confronted us in Laguna where we deter-
mined that there was a reasonable expectation that a
defendant would be convicted again of willfully inter-
fering with a final deportation order. In that case, it was
clear that the defendant’s refusal to comply with an
order to obtain a passport from his country of origin
was likely to continue indefinitely as part of his efforts
to avoid the execution of the removal order. Laguna,
693 F.3d at 730. There, the court had record evidence of
the defendant’s resolve. Mr. Eichwedel never has in-
dicated a resolve to violate the conditions of his super-
vised release. Nor has he ever indicated an intent to
file frivolous pleadings should he be returned to
prison.5 The series of possibilities hypothecated by
Mr. Eichwedel hardly fulfills the “reasonable expecta-
tion” or “demonstrated probability” required by the
Supreme Court to justify the invocation of this exception
to the general mootness standard. Murphy,
455 U.S.
at 482; Weinstein,
423 U.S. at 149.
In short, while the underlying situation indeed may
occur again and may not be resolved before a prisoner’s
5
Mr. Eichwedel makes no argument that 730 ILCS 5/3-6-3(d)
is applicable to him while he is serving his supervised
release term.
No. 09-1031 13
release date, the chance of this situation happening to
Mr. Eichwedel is simply too speculative to constitute
a continuing controversy between him and IDOC.
Conclusion
Accordingly, the certification to the Supreme Court of
Illinois is withdrawn. The court expresses its apprecia-
tion to the Justices of that court for their willingness to
assist in the resolution of this case. The appeal is dis-
missed as moot. Each party will bear its own costs
in this court.
IT IS SO O RDERED.
11-13-12
