United States District Court, D. Massachusetts
DONNA M. WOLCOTT, Petitioner,
SUPERIOR COURT DIVISION OF THE TRIAL COURT OF MASSACHUSETTS, Respondent,
Donna M Wolcott, Petitioner: Michael J. Hickson, Michael J.
Hickson, Esq., Springfield, MA.
Superior Court Division of the Trial Court of Massachusetts,
Respondent: Jennifer K. Zalnasky, LEAD ATTORNEY, Office of
the Attorney General, Western Massachusetts Division,
S. HILLMAN, UNITED STATES DISTRICT JUDGE.
M. Wolcott (" Wolcott" or " Petitioner" )
filed a petition under 28 U.S.C. ' 2254 for Writ of
Habeas Corpus by a Person in State Custody (Docket No.
1)(" Petition" ) alleging as her sole ground for
relief that the sentencing law applicable to her,
Mass.Gen.L.ch. 279, § 5 is unconstitutionally vague
under the Fourteenth Amendment to the United States
Constitution. On December 8, 2014, the Responded filed a
motion to dismiss (Docket No. 7) on the grounds that because
Petitioner had served her sentence prior to filing her
Petition, her Petition must be dismissed for lack of
jurisdiction based on mootness. On January 21, 2015, the
Court allowed that motion as follows: " No opposition
having been filed, the motion to dismiss for lack of
jurisdiction is granted for the reasons state in
Respondent's memorandum." See Docket Entry No.
14. This Order addresses Petitioner's Motion To
Alter Or. Amend Judgment Pursuant To Fed. R. Civ.
Pro. For 59(e) [sic.] (Docket No. 18), which was filed
on February 13, 2015. For the reasons set forth below, that
motion is denied.
asserts that the Court's determination that her Petition
should be dismissed for lack of subject matter jurisdiction
" is a manifest error of law and fact." In support,
Wolcott contends that the Court dismissed her claim for
failure to file an opposition. This is a clear
mischaracterization of the Court's order. While the Court
noted that no opposition had been filed, the matter was
dismissed " for the reasons state in
Respondent's memorandum." See Docket Entry No.
14. This Court is well aware that a court may not
automatically treat Petitioner's failure to file an
opposition to a motion to dismiss as a procedural default
warranting dismissal irrespective of whether the Petition has
merit, that is, the Court cannot simply allow the
motion to dismiss as a sanction failure to oppose the motion.
Cf. Pomerleau v. West Springfield Public
Schools, 362 F.3d 143 (1st Cir. 2004). At the same time,
Rule 59(e) 'does not provide a vehicle for a party to
undo its own procedural failures' or to 'advance
arguments that could and should have been presented to the
district court prior to judgment.' That a district court
may not, without notice, dismiss the plaintiff's
complaint as a sanction for the failure to file an opposition
does not mean that the non-responding plaintiff is relieved
of his or her duty 'to incorporate all relevant arguments
in the papers that directly address a pending motion.'
Thus, a plaintiff who fails to raise any substantive legal
arguments prior to the dismissal of his or her complaint is
appropriately limited under Rule 59(e) to challenging the
court's decision as a manifest error of law.
Id., 362 F.3d at 147 n. 2 (internal citations and
citations to quoted cases omitted)
Respondent argued in his memorandum in support of the motion
to dismiss that the Petition must be dismissed because the
fact that Wolcott was sentenced to time-served after she
filed her Petition moots the sole ground for relief raised in
her Petition, i.e., because her sentence is
complete, there is no longer a " live case or
controversy." Responded reasserts that argument in his
opposition to the instant motion.
contends that her challenge to her sentence serves to
challenge the constitutionality of her conviction and
therefore, since she was " in custody"
on the day she filed her Petition, her claim is not moot.
However, I agree with Respondent that the only claim raised
by Wolcott in her Petition is to the constitutionality of her
sentence--she has not challenged the
constitutionality of her underlying conviction. " In
cases challenging the validity of a criminal conviction, the
court is permitted to 'presume the existence of
collateral consequences sufficient to satisfy the case
controversy requirement ....' However, a petition for
habeas corpus challenging only a sentence and no the
underlying conviction is not entitled to a presumption that
collateral consequences to the incarceration exist."
Deal v. Bellneir, 2015 WL 778235 (E.D.N.Y. Feb. 24,
2015); Johnson v. Metrish, No. 2:07-CV-12265, 2010
WL 2231902, **1-2 (E.D.Mich. Jun. 3, 2010)(where habeas
petitioner chooses to attack only his sentence, and not
underlying conviction, and that sentence expires during
course of the habeas proceeding, the claim for relief is
moot). In the latter case, the burden is on the petitioner to
" [identify] 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,
131 S.Ct. 2860, 2864, 180 L.Ed.2d 811 (2011)(citation to
quoted case omitted).
case, Wolcott essentially argues that the case and
controversy requirement is met because if the sentencing
provision is struck down as unconstitutional, her conviction
would necessarily be vacated. However, none of the authority
cited by Wolcott supports this proposition. Since her only
challenge is to the constitutionality of her sentence, the
burden is on Wolcott to identify ongoing collateral
consequences that could be redressed by a favorable judicial
decision. She had not identified any such consequences.
Wolcott also argues that her Petition is not moot because her
case is one that is capable of repetition yet evades review
and therefore, fits within one of the express exceptions to
the mootness requirement. This exception applies where "
'(1) the challenged action [is] in its duration too short
to be fully litigated prior to cessation or ...