United States District Court, D. Delaware
NICHOLAS J. DAVIS, Petitioner,
DANA METZGER, Warden, and ATTORNEY GENERAL OF THE STATE OF DELAWARE, Respondents.
Nicholas J. Davis. Pro se Petitioner.
J. Vella, Deputy Attorney General, Delaware Department of
Justice, Wilmington, Delaware. Counsel for respondents.
MEMORANDUM OPINION 
NOREIKA, U.S. DISTRICT JUDGE.
Nicholas J. Davis (“Petitioner”) filed a Petition
for a Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254
(“Petition”) (D.I. 3) while he was incarcerated
at the James T. Vaughn Correctional Center in Smyrna,
Delaware. The State filed an Answer in opposition. (D.I. 11).
For the reasons discussed, the Court will deny the Petition.
September 2009, Petitioner pleaded guilty to possession of a
deadly weapon during the commission of a felony
(“PDWDCF”) and second degree robbery. (D.I. 11 at
1). The Delaware Superior Court sentenced him to three years
at Level 5 with credit for 151 days previously served,
suspended for one year at Level 3 probation. (D.I. 11 at 1;
D.I. 14-4 at 5). Petitioner did not appeal his conviction or
September 29, 2011, the Superior Court found Petitioner in
violation of his probation for his robbery conviction and
sentenced him to five years at Level 5, to be suspended upon
successful completion of the Greentree Program for eighteen
months at Level 3 probation. (D.I. 11 at 2). Petitioner filed
a motion for modification of sentence on June 18, 2012, which
the Superior Court denied on July 24, 2012. (D.I. 14-5 at 2).
On April 2, 2015, while still serving the VOP sentence
related to his robbery conviction, Petitioner filed a motion
for credit for time served. (D.I. 11 at 2; D.I. 14-5 at 2)
Then, on April 22, 2015, Petitioner was arrested for
possessing a cell phone. (D.I. 3 at 5; D.I. 11 at 2) The
Superior Court denied Petitioner's motion for credit for
time served on April 30, 2015, observing that
Petitioner's confession to possessing a cell phone
resulted in his removal from the Greentree Program and
reclassification to a higher security level. (D.I. 11 at 2;
D.I. 14-5 at 3).
7, 2015, by information, the State charged Petitioner with
promoting prison contraband regarding the same cell phone.
(D.I. 11 at 2; D.I. 14-7 at 1). Petitioner pleaded guilty to
promoting prison contraband on June 9, 2015, and the Superior
Court sentenced him to three years at Level 5, suspended
after sixty days for one year at Level 3 probation. (D.I. 11
at 2; D.I. 14-2 at 1).
filed the instant Petition in May 2016. (D.I. 3). The sole
Claim asserts that the incarceration portion of the sentence
for his prison contraband conviction should have expired on
May 20, 2016, thereby rendering his continued incarceration
past that date illegal. (D.I. 3 at 5).
was released from prison on September 28, 2016, at which time
he started serving his concurrent probationary sentences for
his robbery and promoting prison contraband convictions.
(D.I. 11 at 2). On November 10, 2016, while on probation,
Petitioner was arrested on new charges of aggravated
menacing, possession of a deadly weapon by a person
prohibited, offensive touching, and driving without a valid
license. (D.I. 11 at 2; D.I. 14-3 at 1). DOC officials took
Petitioner back into custody on November 15, 2016, and filed
an administrative warrant on November 16, 2016. DOC officials
filed a violation of probation report on November 22, 2016.
(D.I. 11 at 2; D.I. 14-4). The state court records do not
provide information past November 22, 2016. According to the
Delaware Inmate Locator, however, Petitioner is presently
incarcerated at the Sussex Correctional Institution in
GOVERNING LEGAL PRINCIPLES
to Article III of the Constitution, federal courts can only
consider ongoing cases or controversies. Lewis v.
Continental Bank, Corp., 494 U.S. 472, 477-78 (1990);
United States v. Kissinger, 309 F.3d 179, 180 (3d
Cir. 2002) (finding that an actual controversy must exist
during all stages of litigation). The
“case-or-controversy requirement subsists through all
stages of federal judicial proceedings, ”
Lewis, 494 U.S. at 477-78, and there must be
“a live case or controversy at the time that a federal
court decides the case.” Burke v. Barnes, 479
U.S. 361, 363 (1987). “[T]he question of mootness is
one . . . which a federal court must resolve before it
assumes jurisdiction.” North Carolina v. Rice,
404 U.S. 244, 246 (1971).
habeas petitioner challenges his underlying conviction, and
he is released during the pendency of his habeas petition,
federal courts presume that “a wrongful criminal
conviction has continuing collateral consequences”
sufficient to satisfy the injury requirement. Spencer v.
Kemna, 523 U.S. 1, 8 (1998); see Steele v.
Blackman, 236 F.3d 130, 134 n.4 (3d Cir. 2001).
Collateral consequences, however, will not be presumed when a
petitioner does not attack his conviction but, instead,
challenges a “sentence that has already been
served.” Burkey v. Marberry, 556 F.3d 142, 148
(3d Cir. 2009). In such cases, the collateral consequences
must be proven and likely to be redressed by a favorable
judicial decision. Id. at 148; Spencer, 523
U.S. at 7. In the absence of continuing collateral
consequences, a federal district court does not have
jurisdiction to review moot habeas claims. See Rice,
404 U.S. at 246.