No. CIV-98-11-S

DOUGLAS G. DRY, ROSIE BURLISON, and JUANITA McCONNELL,

Petitioners,

V.

COURT OF INDIAN OFFENSES FOR THE CHOCTAW NATION and JAMES WOLFE, Magistrate,

Respondents.

Petitioners, members of the Choctaw Nation, have filed the instant writ of habeas corpus pursuant to 28 U.S.C. § 2241 and the Indian Civil Rights Act, 25 U.S.C. § 1303, challenging the jurisdiction of the Court of Indian 0ffenses for the Choctaw Nation to proceed with the criminal prosecution of the charges against them arising out of their activities at the Choctaw Labor Day Festival on tribal grounds in Tuskahoma, Oklahoma, on September 4, 1995. In their petition, Petitioners seek the issuance of a writ of habeas corpus "vacating the charges pending against [them] in Choctaw CFR Court, and releasing [them] from the unlawful threat of incarceration in violation of the federal constitution and statutory principles of fairness and due process." Respondents have moved the court to dismiss the petition on the basis of mootness in that all tribal charges against Petitioners have now been dismissed with prejudice by the tribal prosecutor. The court agrees with Respondents and finds this case should be dismissed for mootness.

As reflected in the attachments to Respondents' briefs, all pending criminal charges against Petitioners arising out of the September 4, 1995, Choctaw Labor Day Festival have been dismissed by the tribal prosecutor. See Exhibits A through E attached to Respondents' Motion To Dismiss and Exhibit A attached to Respondents' Reply to Petitioners' Response. As a result, Petitioners are currently not being prosecuted in the Choctaw CFR Court and they are not faced with the possibility of tribal incarceration for their alleged acts. Under these circumstances, Petitioners' case is moot because no live controversy exists and "the parties lack a legally cognizable interest in the outcome." Powell v. McCormack, 395 U.S. 486, 496 (1969) ; see U.S. Const. art. III, § 2, cl. 1. Whether the analysis is under the "'in custody" requirement of 28 U.S.C. § 2241 or the "detention" requirement under the Indian Civil Rights Act, 25 U.S.C. § 1303, Petitioners' release from the impending charges negates any contention that they are being subjected to "severe restraints on [their] individual liberty." Hensley v. Municipal Court, 411 U.S. 345, 351 (1973).

The court rejects Petitioners' claim for an exception to the mootness doctrine. This is not a situation which is ""capable of repetition, yet evading review." Gannett Co., Inc. v. DePasquale, 443 U.S. 368, 377 (1979) (quoting Southern Pacific Terminal Co. v. Interstate Commerce Comm'n, 219 U.S. 498, 515 (1911)). The charges against Petitioners have been dismissed with prejudice. Given the dismissals with prejudice, there can be no reasonable expectation of future criminal prosecution for Petitioners' alleged conduct on September 4, 1995. Thus, the conditions necessary for the establishment of the "capable of repetition, yet evading review" exception to the mootness doctrine can not be established. See Id. (exception to mootness doctrine requires a showing that "(1) the challenged action was in its duration too short to be fully litigated prior to its cessation or expiration, and (2) there was a reasonable expectation that the same complaining party would be subjected to the same action again."

Petitioners also argue for an exception to the mootness doctrine on the basis of "collateral consequences." Carafas v. La Vallee, 391 U.S. 234, 237 (11468). This exception recognizes that there can be certain future indirect consequences flowing from a previous judgment, conviction, or sentence, with those consequences affecting the outcome of later-existing disputes to such an extent that the underlying attack is not moot. See Sibron v. New York, 392 U.S. 40, 53-57 (1968); Carafas, 391 U.S. at 237. Such is not the case here. Petitioners have not been tried, convicted, or sentenced on any charges. While charges were filed against Petitioners, those charges have been dismissed with prejudice. As a result, no legal consequences flow from the aborted criminal prosecution. The court also rejects Petitioners' related argument that under Heck v. Humphrey, 512 U.S. 477 (1994), this case is not moot because their civil rights suit filed in this court, Dry, et al. v. USA, et al., CIV-97-113-B, constitutes a collateral consequence within the meaning of the exception. Heck stands for the proposition that an individual must obtain a judgment invalidating an underlying conviction or sentence before a legal action under 42 U.S.C. § 1983 may be brought claiming damages for constitutional deprivations arising out of that conviction or sentence. Heck, 512 U.S. at 486-87. Here, Petitioners' civil rights lawsuit does not arise out of an improper conviction or sentence; consequently, the rule in Heck does not constitute a collateral consequence for purposes of an exception to the mootness doctrine. Simply stated, Petitioners' ability to proceed with the civil rights claims asserted by them in Dry, et al. v. USA, et al., CIV-97-113-B, is not dependent upon this court granting the relief requested herein by Petitioners vacating the charges filed in the Choctaw CFR Court. Petitioners invocation of the collateral consequence exception is merely an attempt to obtain "a second bite of the apple" with respect to issues addressed and resolved by the district court in Dry, et al. v. USA, et - al. , CIV-97-113-B. Consequently, the collateral consequences exception to the mootness doctrine has no application to the facts of this case.

Based on the foregoing reasons, the court concludes it is without jurisdiction due to mootness. This action is therefore dismissed.

IT IS SO ORDERED this 14th day of September, 2000.