Robert Alexander v. Shannon Withers ( 2021 )

NONPRECEDENTIAL DISPOSITION
To be cited only in accordance with Fed. R. App. P. 32.1
United States Court of Appeals
For the Seventh Circuit
Chicago, Illinois 60604
Submitted February 23, 2021*
Decided February 24, 2021
Before
FRANK H. EASTERBROOK, Circuit Judge
DAVID F. HAMILTON, Circuit Judge
THOMAS L. KIRSCH II, Circuit Judge
No. 20‐1120
ROBERT ALEXANDER, Appeal from the United States District
Petitioner‐Appellant, Court for the Southern District of Illinois.
v. No. 17‐cv‐545‐NJR
SHANNON WITHERS, Nancy J. Rosenstengel,
Respondent‐Appellee. Chief Judge.
ORDER
Robert Alexander, who committed crimes in Georgia while on parole for a
federal conviction, challenged the revocation of his parole in a petition under 28 U.S.C.
§ 2241. The district court dismissed it, and, because Alexander’s notice of appeal is
untimely, we lack jurisdiction over the appeal.
* We have agreed to decide the case without oral argument because the briefs and
record adequately present the facts and legal arguments, and oral argument would not
significantly aid the court. FED. R. APP. P. 34(a)(2)(C).
No. 20‐1120 Page 2
In 1987, Alexander was convicted in federal court of bank robbery and sentenced
to 20 years’ imprisonment. After being paroled, reincarcerated, and paroled again, he
was arrested by Georgia authorities in July 2000 on charges of rape, enticing a child for
indecent purposes, and child molestation. The United States Parole Commission issued
a warrant to revoke his parole based on the charges. He pleaded guilty to statutory rape
and was sentenced to 20 years in Georgia state prison. When he completed the state
sentence in February 2012, the Commission executed its revocation warrant.
After a hearing in June 2012, the Commission revoked Alexander’s parole, based
primarily on information in police reports about the rape; Alexander was represented
by counsel and did not testify. The Commission concluded that aggravating factors
about the rape and the twelve‐year‐old victim warranted reimprisoning him until his
federal sentence expired. This meant that he would serve approximately 90 more
months in prison, more than the recommended 78‐100 months under the Parole
Commission Guidelines.
After exhausting his administrative appeals, Alexander filed this petition
under § 2241 in the Southern District of Illinois (at the time, he was incarcerated at the
United States Penitentiary in Marion).1 He asserted that his attorney had not properly
advocated for him at his revocation hearing, and that the Commission exaggerated the
severity of his violation, “double counted” the rape conviction, and failed to credit him
for good conduct in state custody. After full briefing, the district court rejected these
arguments; it denied the petition and entered judgment on November 21, 2019. The
district court received Alexander’s notice of appeal on January 22, 2020—two days
beyond the sixty‐day window to appeal. 28 U.S.C. § 2107(b); FED. R. APP. P. 4(a); Rules
Governing § 2254 Petitions, Rule 11(b) (applicable to § 2241 through Rule 1(b) (applying
FED. R. APP. P. 4(a) to habeas petitions)).
We noted a possible problem with appellate jurisdiction, and the warden
submitted several filings contending that it is lacking. One was a notice of mootness
based on Alexander’s release from a residential re‐entry center operated by the Federal
Bureau of Prisons in May 2020. But the warden tells us that Alexander, though no
1 Alexander has been released from the warden’s custody since filing this case—
first to a federal halfway house, and then to supervision by the Commission. Despite
this, the warden has continued to defend the appeal, never seeking to substitute the
Commission, which appears to be the only entity, if any, from whom Alexander could
obtain relief now, and which can be the appropriate respondent to a § 2241 petition. See,
e.g., Evans v. U.S. Parole Commʹn, 78 F.3d 262, 263 (7th Cir. 1996).
No. 20‐1120 Page 3
longer in the physical custody of the Bureau, “will continue to be supervised by the
Commission,” which suggests that his “custody” has not ended. See Clarke v. United
States, 703 F.3d 1098, 1101 (7th Cir. 2013) (supervised release is “classified as a form of
custody” for purposes of habeas corpus). Because we do not have sufficient detail about
that or any collateral consequences of Alexander’s continued supervision (Alexander’s
response to the notice merely speculates about the effect of continuing his term to
expiration), we cannot resolve whether his case is moot. See Spencer v. Kemna, 523 U.S. 1,
7–8 (1998) (equating the incarceration and “the restriction imposed by the terms of the
parole”); Maleng v. Cook, 490 U.S. 488, 491 (1989) (prisoner is no longer in custody when
the sentence has fully expired such that no collateral consequences remain).
We have other grounds for questioning our jurisdiction, however. See United
States v. Ray, 831 F.3d 431, 440 (7th Cir. 2016) (“there is no priority among the many
reasons for not deciding a case”). The warden has also pressed the untimeliness of
Alexander’s notice of appeal. In response to an order to show cause, Alexander invoked
the prison‐mailbox rule, FED. R. APP. P. 4(c)(1), arguing that, when he sent his notice of
appeal, he was living at a re‐entry center in Georgia—still in the custody of the Federal
Bureau of Prisons and with limited freedom. He also attested that he “had placed his
appeal in the United States Mail” on January 17. But the warden submitted records
from the center, showing that Alexander’s movement was not quite so restricted: He
was able to sign out of the center to visit the Salvation Army, work at the local oyster
bar, do legal research at a courthouse—and go to the post office.
The date stamp on the envelope that contained the notice of appeal corroborates
Alexander’s attestation that it was mailed on January 17—which is “on or before the last
day of filing” of January 20. FED. R. APP. P. 4(c)(1); Houston v. Lack, 487 U.S. 266, 270
(1988). If the prison‐mailbox rule applies to Alexander, then, the notice of appeal is
timely. But the rule’s applicability depends on whether Alexander had to make use of a
prison mailbox at all. While courts have extended the prison‐mailbox rule to filings
made by detainees in non‐prison institutions, see Boatman v. Berreto, 938 F.3d 1275,
1276–77 (11th Cir. 2019), they cannot benefit from the prison‐mailbox rule if their filings
are mailed from outside their institutions, see Knickerbocker v. Artuz, 271 F.3d 35, 37 (2d
Cir. 2001) (mailed by third party).
Alexander bears the burden of proving that he is entitled to the benefit of the
rule. May v. Mahone, 876 F.3d 896, 899 (7th Cir. 2017). But even if he were “confined” for
the purposes of the rule (although he was not “unable to leave” the re‐entry house,
Houston, 487 U.S. at 271), Alexander did not attest that he placed the notice of appeal in
a correctional institution’s mail system. 28 U.S.C. § 1746; see FED. R. APP. P. 4(c)(1)(A).
No. 20‐1120 Page 4
See also Ford v. Wilson, 747 F.3d 944, 948–49 (7th Cir. 2014); Ray v. Clements, 700 F.3d 993,
1012 (7th Cir. 2012). To the contrary: He placed the notice in the United States mail. See
Houston, 487 U.S. at 270–71. He therefore cannot benefit from the rule. And we cannot
overlook the absence of a timely notice of appeal, a jurisdictional prerequisite. See FED.
R. APP. P. 3(a)(2); Manrique v. United States, 137 S. Ct. 1266, 1274 (2017) (“defects in a
notice of appeal other than the failure to timely file a notice” can be excused).
DISMISSED