United States District Court, D. Minnesota
Darcy J. Betterton, Petitioner,
Warden Fikes, Respondent.
ORDER ACCEPTING REPORT AND RECOMMENDATION
C. Tostrud United States District Judge
Darcy J. Betterton commenced this action pro se by filing a
petition for a writ of habeas corpus and an application to
proceed in forma pauperis (“IFP”). Pet. [ECF No.
1]. The case is before the Court on a Report and
Recommendation issued by Magistrate Judge Hildy Bowbeer on
August 7, 2019. ECF No. 4 (“R&R”). Magistrate
Judge Bowbeer recommends dismissing Betterton's petition
without prejudice and denying his IFP application as moot.
R&R at 9.
any objection to a report and recommendation must be filed
“within 14 days after being served with a copy.”
LR 72.2(a)(1). Here, Betterton was served by mail on August
7, which normally would make his objection deadline August
26. LR 72.2(a)(1) (requiring that objections to a report and
recommendations be filed “within 14 days after being
served with a copy”); Fed.R.Civ.P. 6(d) (extending
deadline by three days when served by mail); Fed.R.Civ.P.
6(1)(C) (extending deadline due to weekend). Betterton's
Objections are dated August 27. Obj. at 6 [ECF No. 5]. But
Betterton submitted documentary evidence that prison
officials at FCI-Sandstone did not deliver the Report and
Recommendation to him until August 20 [ECF No. 5-2], and he
argues that his Objections therefore are timely [ECF No.
5-1]. The Court construes this as a motion for an extension
of time. Because Betterton's delayed receipt of the
Report and Recommendation through no fault of his own
constitutes excusable neglect for not meeting his filing
deadline, the Court will grant Betterton's request and
treat his Objections as timely. See Fed. R. Civ. P.
Court is required to review de novo those portions of the
Report and Recommendation to which Betterton has objected.
See 28 U.S.C. § 636(b)(1); Local Rule
72.2(b)(3). Although the Report and Recommendation was well
reasoned, Betterton's Objections elaborate on certain
arguments raised in his petition that were not directly
addressed in the Report and Recommendation, and which warrant
further discussion here. Nevertheless, for the reasons that
follow, Betterton's Objections will be overruled, the
Report and Recommendation will be accepted, and
Betterton's petition will be dismissed.
February 11, 2004, a jury convicted Betterton of three counts
of possessing controlled substances with intent to distribute
after being convicted of at least one felony drug offense.
See United States v. Betterton, 417 F.3d 826, 829-30
(8th Cir. 2005); Verdict Form at 1-2, United States v.
Betterton, Case No. 03-CR-3014 (MWB) (N.D. Iowa Feb. 11,
2004), ECF No. 71. One of the counts of conviction carried a
mandatory minimum term of imprisonment of 10 years, a maximum
term of imprisonment of life, and “a term of supervised
release of at least 8 years in addition to such term of
imprisonment.” See Am. J. at 1, United
States v. Betterton, Case No. 03-CR-3014 (MWB) (N.D.
Iowa Mar. 5, 2006), ECF No. 113; 21 U.S.C. §
841(b)(1)(B)(iii). He ultimately received a sentence of 300
months (25 years) of imprisonment and 96 months (8 years) of
supervised release on that count, to be served concurrently
with lesser sentences on the other two counts of conviction.
See Am. J. at 2-3. He is currently serving the
custodial portion of his sentence at the Federal Correctional
Institute in Sandstone.
petition, Betterton asks the Court “to correct the
execution of [his] supervised release to prevent it from
being executed in an unconstitutional manner.” Pet. at
1 [ECF No. 1]. Essentially, he argues that it would be
unconstitutional under United States v. Haymond, 139
S.Ct. 2369 (2019), to require him to serve 25 years in prison
and then 8 years on supervised release, because if
his supervised release was ever revoked, he might have to
spend longer in prison than the 25 years imposed by the
sentencing judge. Pet. at 3-4; Obj. at 2. Betterton suggests
that the solution to this supposed problem is that the Bureau
of Prisons should release him after 17 years in prison, so
that if he violates the terms of his supervised release, and
if his supervised release is revoked, and if he is sentenced
to 8 years in prison as part of that revocation, he will not
be imprisoned for any longer than “the maximum
imprisonment authorized by the statute of conviction and
imposed for the initial offense conduct.” Pet. at 2.
are many problems with this argument. See generally
Whitaker v. Fikes, No. 19-cv-1905 (PJS/LIB), 2019 WL
5854058 (Nov. 11, 2019) (rejecting similar argument for
multiple reasons). For present purposes, the most significant
problem is that Betterton's petition is not ripe. Even
under Betterton's theory, no constitutional violation
would occur unless and until he is on supervised release,
and violates the terms of that supervised release,
and is consequently returned to prison-and at this
point it is entirely speculative whether these conditions
will come to pass. See Whitaker, 2019 WL 5854058, at
*2. Accordingly, the Court lacks subject-matter jurisdiction
over Betterton's petition. See Watts v.
Petrovsky, 757 F.2d 964, 966 (8th Cir. 1985) (holding
that, where a live controversy would only arise if
petitioner's current term of parole were revoked, the
court lacked jurisdiction over the appeal).
on the files, records, and proceedings in the above-captioned
matter, IT IS ORDERED THAT:
1. The Report and Recommendation [ECF No. 4] is
2. The petition [ECF No. 1] is DISMISSED WITHOUT
3. The application to proceed in forma pauperis [ECF No. 2]
is DENIED as moot.
JUDGMENT BE ...