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Akande v. Fikes

United States District Court, D. Minnesota

September 4, 2019

LATEEF AKANDE, Petitioner,
v.
WARDEN FIKES, Respondent.

          REPORT AND RECOMMENDATION

          TONY N. LEUNG UNITED STATES MAGISTRATE JUDGE

         This matter comes before the Court on Petitioner Lateef Akande's (1) petition for a writ of habeas corpus under 28 U.S.C. § 2241, Doc. No. 1 (Petition); and (2) Application to Proceed Without Prepayment of Fees, Doc. No. 2 (IFP Application). For the reasons discussed below, the Court recommends dismissing the Petition without prejudice and denying the IFP Application.

         In 2014, Akande pleaded guilty in the U.S. District Court for the District of Maryland to four counts: (1) conspiracy to commit bank fraud, (2) bank fraud, (3) aggravated identity theft, and (4) money laundering. See United States v. Akande, 622 Fed.Appx. 235, 236 (4th Cir. 2015). The district court imposed a 175-month prison sentence, to be followed by 60 months of supervised release. See id. Akande appealed and the Fourth Circuit affirmed. See id.

         Akande is currently confined at the Federal Correctional Institution at Sandstone, Minnesota. When released, he will become subject to the supervised-release term imposed at sentencing. During supervised release, Akande will be subject to several conditions, including, as relevant here, that he not commit another criminal offense; that he submit to periodic drug tests; that he report to his probation officer regularly; and that he submit to searches conducted by that officer. See Am. J. in a Criminal Case 3-4, United States v. Akande, No. 12-CR-0288 (D. Md. Dec. 2, 2014) (Amended Judgment); cf. 18 U.S.C. § 3583(d) (establishing supervised-release conditions). If Akande violates his supervised-release conditions, he may have “to serve in prison all or part of the term of supervised release authorized by statute for the offense that resulted in such term of supervised release without credit for time previously served on postrelease supervision[.]” 18 U.S.C. § 3583(e)(3).

         Akande filed a petition for a writ of habeas corpus challenging the supervised-release term imposed in his criminal case.[1] See 28 U.S.C. § 2241. He argues that, following the United States Supreme Court's decision in United States v. Haymond, 139 S.Ct. 2369 (2019), any revocation of his supervised release and subsequent imposition term of imprisonment will violate his constitutional rights. See Pet. 3-4. This Petition is now before the Court pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts.

         In Haymond, the United States Supreme Court considered whether 18 U.S.C. § 3582(k), a provision of the supervised release statute that applied to certain offenses, infringed on a defendant's Fifth and Sixth Amendment rights by a judge, “acting without a jury and based only on a preponderance of the evidence, ” to impose “new punishment in the form of a prison term” that increased “the legally prescribed range of allowable sentences” simply because the defendant violated the terms of his or her supervised release. 139 S.Ct. 2369, 2379. Justice Neil Gorsuch, writing for four justices, concluded that it did, explaining that “a jury must find any facts that trigger a new mandatory minimum prison term” upon revocation of supervised release. Id. at 2380 (emphasis removed).

         Justice Breyer concurred in the judgment. He explained that three aspects of § 3583(k), when “considered in combination, ” made that provision “less like ordinary revocation and more like punishment for a new offense, to which the jury right would typically attach”:

First, § 3583(k) applies only when a defendant commits a discrete set of federal criminal offenses specified in the statute. Second, § 3583(k) takes away the judge's discretion to decide whether violation of a condition of supervised release should result in imprisonment and for how long. Third, § 3583(k) limits the judge's discretion in a particular manner: by imposing a mandatory minimum term of imprisonment of “not less than 5 years” upon a judge's finding that a defendant has “commit[ted] any” listed “criminal offense.”

Id. at 2386. (Breyer, J., concurring) (alterations in original). Because of these three factors, Justice Breyer determined that § 3583(k) violated criminal defendants' constitutional rights. Id. He therefore concluded that the rights “that attend a new criminal prosecution, ” including a jury trial where the burden is on the Government to prove the violation beyond a reasonable doubt, must be provided to a defendant before the mandated § 3583(k) prison term could be imposed. Id. Unlike Justice Gorsuch's opinion, however, Justice Breyer's reasoning would not extend to any other provisions that impose a mandatory minimum term of imprisonment upon a supervised-release revocation without giving the defendant the right to a hearing before a jury to determine, beyond a reasonable doubt, whether the relevant supervised-release condition had been violated. Instead, his reasoning would relate only to § 3583(k).

         Formally, because it is limited to the constitutionality of § 3583, Justice Breyer's opinion in Haymond is controlling. See United States v. Bailey, 571 F.3d 791, 798 (8th Cir. 2009) (“When a majority of the Supreme Court agrees only on the outcome of a case and not on the grounds for that outcome, ‘the holding of the Court may be viewed as that position taken by those Members who concurred in the judgments on the narrowest grounds.'”) (quoting Marks v. United States, 430 U.S. 188, 193 (1977)). But regardless of whether Justice Breyer's opinion or Justice Gorsuch's opinion is considered, nothing in Haymond entitles Akande to habeas relief.

         The fundamental flaw in Akande's argument is that Haymond does not concern how supervised release may be imposed, but how it may be revoked. The imposition of supervised release in Akande's case followed from his conviction. Although he waived his right to a jury trial by pleading guilty, Akande unquestionably had the right to insist that the government prove its case beyond a reasonable doubt to a jury of Akande's peers. The trial court could not have imposed the supervised-release term merely on its own finding, by a preponderance of the evidence, that Akande had committed the offenses of conviction. Instead, Akande admitted his guilt, and the trial court imposed a sentence- including a supervised-release term-that fell within the bounds set by federal law. This process was entirely consistent with Akande's constitutional rights.

         What Akande actually is challenging through this habeas petition is the hypothetical question of whether any revocation of his supervised release in the future would be consistent with Haymond. But the “irreducible constitutional minimum of standing” requires that a litigant's complained-of injury “be likely, as opposed to merely speculative.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992); see also Frost v. Sioux City, 920 F.3d 1158, 1161 (8th Cir. 2019). Akande's assertion that any revocation of his supervised release will violate his constitutional rights as described in Haymond is speculative. He may never violate the conditions of his release, and even if he were to do so, his term of supervised release might not be revoked, and even if it were, the resulting sentence might be imposed in a manner consistent with Haymond. All of these questions are unanswerable right now. The Court must recommend that the petition be dismissed without prejudice for lack of jurisdiction and that Akande's IFP application be denied.

         The Court would reach the same recommendation for a different reason. “The federal habeas statute gives the United States district courts jurisdiction to entertain petitions for habeas relief only from persons who are ‘in custody in violation of the Constitution or laws or treaties of the United States.'” Maleng v. Cook, 490 U.S. 488, 490 (1989) (quoting 28 U.S.C. § 2241(c)(3)). Though Akande is currently in custody as a result of his prior convictions, the Supreme Court has “interpreted the statutory language as requiring that the habeas petitioner be ‘in custody' under the conviction or sentence under attack at the time his petition is filed.” Id. at 490-91 (citing Carafas v. LaVallee, 391 U.S. 234, 238 (1968)). As explained above, Akande is trying to challenge a potential revocation of his supervised release-that is, he is challenging a hypothetical future term of imprisonment that might never be imposed and for which he is not in custody today. “If a petitioner was not ‘in' the relevant ‘custody' at the time of filing, then his petition must be dismissed for lack of jurisdiction.” Munt v. Miles, No. 18-CV-0017 (JRT/FLN), 2018 WL 2271028, at *2 (D. Minn. May 17, 2018) (citing Charlton v. Morris, 53 F.3d 929, 929 (8th Cir. 1995) (per curiam)). Because a federal prisoner cannot, through a petition for a writ of habeas corpus, anticipatorily test the validity of proceedings that have not occurred, this Court lacks jurisdiction over the Petition. For this reason as well, the Court recommends the petition be dismissed without prejudice.

         Finally, even if the Court were to consider the merits of the petition, nothing in Haymond entitles Akande to relief. To begin, there is no reason to believe that Akande will ever be subject to § 3583(k). He does not contend, for example, that he is required to register under SORNA. As a result, none of the factors identified by Justice Breyer as requiring § 3583(k)'s invalidation will necessarily be present if Akande is ...


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