While only brief sentences of imprisonment may be imposed [in misdemeanor cases], the[se] cases often bristle with thorny constitutional questions.” Argersinger v. Hamlin, 407 U.S. 25, 33 (1972). The Supreme Court is “by no means convinced that legal and constitutional questions involved in a case that actually leads to imprisonment even for a brief period are any less complex than when a person can be sent off for six months or more.” Id. See, e.g., Groppi v. Wisconsin, 400 U.S. 505, 510–12 (1971) (holding unconstitutional a state law that categorically prevented a change of venue for a criminal jury trial, regardless of the extent of local prejudice against the defendant, on the sole basis that the charge is labeled a misdemeanor).
May 04, 2022 Feature
Understanding Federal Habeas Corpus Review of Misdemeanor Convictions
J. Vincent Aprile II
Federal habeas corpus review of state court misdemeanor cases deciding federal constitutional questions is available, but practical considerations such as the shorter custody sentences and monetary penalties raise potential obstacles to such review. Following the completion of state court appellate review and the expiration of the 90 days for filing a petition for certiorari in the US Supreme Court or the completion of the certiorari process, the convicted misdemeanant has one year to file a federal habeas corpus petition unless that year is tolled by the timely filing of a state post-conviction challenge. 28 U.S.C. § 2244(d)(1).
Habeas Custody Requirement
In many cases during the state appellate process and/or any certiorari proceedings, the relatively brief misdemeanor sentence is being served and completed. The statute governing federal habeas corpus relief for persons challenging a state court criminal conviction, 28 U.S.C. § 2254, requires that a person be in custody when he or she files the petition for writ of habeas corpus. “Custody” under the federal statute includes being on probation. Custody is a jurisdictional prerequisite for federal habeas corpus relief. However, once the petition for federal habeas corpus relief is filed, the action is not mooted by the expiration of the sentence if any significant collateral consequences flow from a criminal conviction. See Carafas v. LaVallee, 391 U.S. 234, 238 (1968); Sibron v. New York, 392 U.S. 40, 55–57 (1968); Evitts v. Lucey, 469 U.S. 387, 391 n.4 (1985). A “conditional” release from confinement under an “unexpired sentence” satisfies the in-custody requirement. Maleng v. Cook, 490 U.S. 488, 490–91 (1989) (per curiam). A probated misdemeanor sentence meets the in-custody requirement.
Case-or-Controversy Requirement and Mootness
Article III of the Constitution limits the jurisdiction of federal courts to “Cases” and “Controversies.” U.S. Const. art. III, § 2. “The case-or-controversy requirement ‘subsists through all stages of federal judicial proceedings, trial and appellate.’” Chafin v. Chafin, 568 U.S. 165, 172 (2013). An appeal becomes moot, and thus ceases to present a case or controversy, when events that occur subsequent to the filing of a lawsuit or an appeal deprive the court of the ability to grant meaningful relief. A moot appeal must be dismissed. Church of Scientology of Cal. v. United States, 506 U.S. 9, 12 (1992). In the habeas context, a petitioner’s release from custody and the subsequent conclusion of his parole or probation term, after the filing of his habeas petition challenging his conviction, do not moot the habeas action because of any continuing collateral consequences to a wrongful criminal conviction. “[T]hroughout the litigation,” the party seeking relief “‘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).
Mootness and Collateral Consequences
When the habeas petitioner is no longer under any type of custody, other actual injury that flows from the conviction and/or sentence must be identified. It is well recognized that a petitioner’s challenge to the collateral consequences of the conviction is implied by the original petition challenging the conviction as unconstitutional. “[W]hen a defendant challenges only an expired sentence, no such presumption [of collateral consequences] applies, and the defendant must bear the burden of identifying some ongoing ‘collateral consequenc[e]’ that is ‘traceable’ to the challenged portion of the sentence and ‘likely to be redressed by a favorable judicial decision.’” United States v. Juvenile Male, 564 U.S. 932, 936 (2011) (quoting Spencer, 523 U.S. at 7, 14 (emphasis added)).
“The relief that a habeas court may order and the collateral consequences of that relief are two entirely different things.” Dept. of Homeland Sec. v. Thuraissigiam, 140 S. Ct. 1959, 1974 (2020). “Ordering an individual’s release from custody may have the side effect of enabling that person to pursue all sorts of opportunities that the law allows.” But habeas corpus is not available simply to achieve those collateral goals. “For example, release may enable a qualified surgeon to operate on a patient; a licensed architect may have the opportunity to design a bridge; and a qualified pilot may be able to fly a passenger jet. But a writ of habeas could not be used to compel an applicant to be afforded those opportunities or as a means to obtain a license as a surgeon, architect, or pilot.” Id.
Minimal Showing of Collateral Consequences
Once a habeas petitioner provides the minimal showing of the existence of collateral consequences, it becomes the state’s burden to show conclusively that collateral consequences do not exist in a case of an unconstitutional conviction remaining on one’s record. Ongoing or future harm is a prerequisite for the existence of a case or controversy, a necessary requirement for the continued existence of federal habeas jurisdiction. A petitioner need not show much more than the possibility of tangible collateral consequences for the burden to shift to the state to show that the consequences are not in fact possible. “[A] criminal case is 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. New York, 392 U.S. 40, 57 (1968).
Identifying the Unique Collateral Consequences of the Misdemeanor Conviction or Sentence
A petitioner’s collateral consequences of a misdemeanor conviction where the custody requirement has expired are always unique to the petitioner’s individual circumstances. If the petitioner had to pay a fine, court costs, and/or other monetary sanctions during or at the conclusion of the state case, recoupment of those monetary penalties upon habeas relief may constitute a collateral consequence of the misdemeanor conviction and sentence. Upon a successful challenge to a misdemeanor conviction, the petitioner may be entitled to vacatur of the corresponding sentence, including any monetary assessment, which, even though a small sum, would constitute a concrete, redressable injury sufficient to establish Article III standing. Dhinsa v. Krueger, 917 F.3d 70 (2d Cir. 2019). A state “may not retain funds taken from” defendants “solely because of their now-invalidated convictions,” and the state “may not presume a person, adjudged guilty of no crime, nonetheless guilty enough for monetary exactions.” Nelson v. Colorado, 137 S. Ct. 1249, 1256 (2017).
Should a misdemeanor conviction have been the basis to terminate an existing occupational license or to have precluded obtaining a petitioner’s desired occupational license, that would constitute a collateral legal consequence. Ginsberg v. New York, 390 U.S. 629, 633 n.2 (1968). Occupational and professional licenses run the gamut from a cosmetologist’s license to a medical license. Even the possibility that the misdemeanor “conviction might result in the revocation of the license required by municipal law as a prerequisite to engaging in the luncheonette business” constitutes a valid collateral consequence. Id.
When a misdemeanor conviction would enhance either the nature of a new similar offense or the maximum sentence for a repeat offense, the conviction’s enhancement function is a collateral consequence satisfying the case- and- controversy requirement, even though no enhanced charge is pending. As a general proposition, in many jurisdictions a sentencing judge may appropriately conduct an inquiry broad in scope, largely unlimited either as to the kind of information he may consider, or the source from which it may come. On that basis, might the prior misdemeanor conviction in some jurisdictions create a collateral consequence at a sentencing for a future crime even when the prior conviction is not an automatic enhancement offense?
A sexual offender registration based on a challenged misdemeanor conviction, rather than a state statutory obligation independent of the conviction, would also be a collateral consequence that would be remedied by habeas relief.
A misdemeanor could trigger a lifetime ban on possessing or owning firearms. For example, under 18 U.S.C. § 922(g)(9), the Lautenberg Amendment, a person is prohibited from owning, shipping, transporting, or possessing firearms or ammunition if convicted in any court of a “misdemeanor crime of domestic violence.” See Voisine v. United States, 136 S. Ct. 2272 (2016).
The loss of the right to vote if occasioned by a particular misdemeanor conviction, such as a violation of an election law or a suffrage offense, would be a viable collateral consequence, susceptible to relief upon success of the habeas corpus action.
Although felony convictions obviously carry more collateral consequences than misdemeanor convictions, depending on the nature of the misdemeanor, a convicted misdemeanant could be barred from being reunited with a child or living in public housing.
In some jurisdictions, a specific misdemeanor offense may be the basis for impeaching the testimony of the misdemeanant in a future civil or criminal trial. Similarly, under evidence rules dealing with other crimes, wrongs, or acts and specific instances of conduct, a misdemeanor conviction may present a collateral consequence. A petitioner’s bad conduct reflected in a misdemeanor conviction may be available to be used against the petitioner in a future court proceeding should the petitioner appear as a witness, victim, or defendant. A jurisdiction’s evidence rules may permit the admission of evidence of other crimes, wrongs, or acts, if offered for some other purpose than to prove the character of a person. See, e.g., Fed. R. Evid. 404(b). The misdemeanor conviction could be offered to show action in conformity with that bad conduct evidence. It is impossible to predict the particular situation where a misdemeanor conviction would be offered for some other purpose, but that is not required to establish a collateral consequence. As explained above, once the petitioner shows the possibility of tangible collateral consequences, the burden shifts to the state to show that the consequences are not in fact possible.
In some jurisdictions, specific instances of the conduct of a witness, for the purpose of attacking or supporting the witness’s credibility, may, if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the misdemeanant, for example, concerning the witness’s character for truthfulness or untruthfulness. If testifying in a court proceeding, could the misdemeanant be cross-examined on the specific instances of his conduct reflected in his convictions in this matter, for example, if the misdemeanant testified on direct examination that he had never committed an offense comparable to the previous misdemeanor conviction? Although such a cross-examination would require a factual basis for the inquiry, the misdemeanor conviction would satisfy that factual basis, but the ultimate acquittal of the misdemeanor conviction would likely preclude that specific instance from being used against the petitioner on cross-examination. But see Dowling v. United States, 493 U.S. 342, 344 (1990), holding neither the Double Jeopardy Clause nor the Due Process Clause barred the use of testimony admitted under Rule 404(b) of the Federal Rules of Evidence, relating to an alleged crime that the defendant had previously been acquitted of committing. However, when advancing a collateral consequence to demonstrate the habeas action is not moot, the ultimate resolution of the challenged misdemeanor conviction is obviously not known. Should the misdemeanor conviction be vacated and dismissed, the misdemeanant at a future proceeding where testifying would have “the burden … to demonstrate that the issue [guilt of the offense] whose relitigation” sought to be foreclosed “was actually decided in the first proceeding.” Id. at 350.
The Supreme Court has “proceeded to accept the most generalized and hypothetical of consequences as sufficient to avoid mootness in challenges to conviction.” Spencer v. Kemna, 523 U.S. 1, 10 (1998). This is an invitation to litigators representing misdemeanants in federal habeas corpus proceedings to investigate fully their clients’ lives and to remain current on where and how prior misdemeanor convictions may deprive convicted misdemeanants of opportunities that would otherwise be available to them but for the convictions. For example, despite some recent reforms, broad criminal history restrictions on access to government sponsored business loans, notably by the US Small Business Administration (SBA), continue to exist. See Collateral Consequence Resource Center. Depending on a client’s financial situation or aspirations, this type of impediment may constitute a collateral consequence flowing from a misdemeanor conviction.
The above examples of collateral consequences, though certainly far from complete, demonstrate the extent to which counsel in a misdemeanor federal habeas corpus must investigate the possible ramifications of a misdemeanor conviction.
Misdemeanor convictions that raise federal constitutional questions certainly deserve federal habeas corpus review, but a misdemeanor petitioner’s habeas counsel needs to be fully aware of the potential pitfalls that are often unique to misdemeanors on federal habeas review. A misdemeanant’s counsel should not be deterred from seeking federal habeas corpus relief, where apparently warranted, due to either a lack of understanding of case and controversy or mootness. Similarly, counsel should not be dissuaded from seeking federal habeas relief because counsel has failed to plumb the complexities of the client’s life and future plans to uncover potential collateral consequences should the misdemeanor conviction remain viable.