OPINION
This is Eugene Gall’s third appearance in our Court arising out of his 1978 murder conviction and sentence of death in Kentucky state court. Gall was the appellant in his two prior appearances, and his record in that role is one-and-one. In 2000, we reversed the district court’s denial of Gall’s petition for a writ of habeas corpus, found that Gall’s 1978 murder conviction was unconstitutional, and therefore ordered the district court to grant Gall a conditional writ of habeas corpus.
Gall v. Parker (Gall III),
Here, however, Gall finds himself in the unusual position of defending the district court’s decision, as it is the Commonwealth that brings this appeal. After unsuccessfully seeking an order from the Kentucky state courts vacating the 1978 conviction and expunging it from his record, Gall again turned to the district court for relief. He sought an order mandating that the Commonwealth vacate the conviction. The district court agreed with Gall, declared that the 1978 conviction was nullified, and directed the Commonwealth to expunge the conviction from Gall’s criminal record.
Gall v. Scroggy,
No. 2:87-cv-56,
I.
In 1978, Gall was convicted in Kentucky state court of raping and murdering a twelve-year-old girl and was sentenced to death. In 2000, though we acknowledged that there was “little doubt” that Gall had committed the horrible crimes with which he had been charged, we conditionally granted Gall’s petition for a writ of habeas corpus due to the Commonwealth’s failure to prove an essential element of first-degree murder as it existed at the time in Kentucky law.
Gall III,
Gall’s 2001 motion to enforce our judgment asked that the district court enter “the attached Final Judgment,” a draft order that Gall tendered with his motion. The draft order purported to direct the Commonwealth to proceed with involuntary commitment proceedings and included, among other things, language declaring that his 1978 conviction and death sentence “are unconstitutional and are VACATED.” The district court did not adopt Gall’s proposed judgment. Instead, for reasons not apparent from the record, it entered its own judgment ordering Gall’s release within ninety days, with an additional thirty days if the Commonwealth elected to proceed with civil commitment. Importantly for purposes of this appeal, the district court’s judgment did not include language vacating Gall’s 1978 conviction or otherwise addressing its continued presence on his record.
When the Commonwealth released Gall into Ohio’s custody, Gall appealed the district court’s judgment. His sole argument on appeal was that the district court should have ordered the Commonwealth to proceed with involuntary commitment; he did not raise on appeal the district court’s failure to vacate the underlying conviction. Our Court affirmed the district court in 2003.
Gall IV,
After losing his fight to stay in Kentucky, Gall soon moved the Kentucky state court to vacate the conviction. He filed an action in state court in 2004 seeking to have the conviction vacated under Kentucky state procedure. The trial court denied the motion and, in June 2007, the Kentucky Court of Appeals affirmed.
Gall v. Commonwealth,
No.2006-CA-112-MR,
Gall therefore returned to federal court seeking an order directing the Commonwealth to vacate his conviction. Again under the caption of his initial habeas claim, Gall moved to enforce our ruling in
Gall III
declaring the conviction unconstitutional. Gall essentially argued that an unconstitutional conviction is a legal nullity and therefore expungement of the conviction is required. He claims that vacation of his conviction is important because he is set to come before the parole board in Ohio in 2021 and that, in assessing his suitability for parole, a prior murder con
II.
Though Gall styles his motion as a motion to enforce our judgment in
Gall III,
he brought the motion under the caption of his federal habeas case, and the motion raises substantive questions of the implication of a writ of habeas corpus and the power of a federal court sitting in habeas. We generally review a district court’s disposition of a habeas petition de novo and its findings of fact for clear error.
Satterlee v. Wolfenbarger,
III.
The Commonwealth’s arguments on appeal are materially identical to those made before the district court. Prior to addressing these arguments in turn, however, it is useful to review our leading case on the ability of a federal court sitting in habeas to nullify an unconstitutional state conviction.
That case is
Gentry v. Deuth,
In other words, a habeas petition challenging the constitutionality of a conviction (as opposed to the constitutionality of a particular sentence) challenges both the conviction itself and the resulting confinement and other collateral or incidental consequences stemming from the conviction. If the petition is well taken, then the necessary remedy is relief from both the direct and collateral consequences of the unconstitutional conviction. It follows that, because ongoing collateral consequences are assumed to flow from an unconstitutional conviction, 5 and because the full relief implied by the writ is the elimination of all direct and collateral consequences, nullification of the conviction and expungement of the conviction from one’s record are naturally and necessarily implicit in granting the writ. Id. at 696 (“As a practical, logical, and necessary matter, relief from the collateral consequences of an unconstitutionally obtained state criminal conviction effectively requires ex-pungement of the conviction from the petitioner’s record, and expungement of the record implies nullification of the unconstitutional conviction.”). Indeed, as a general proposition, we know of no authority or plausible rationale indicating that states ever have a substantive justification to keep an unconstitutional conviction on an individual’s record, and we find it telling that the Commonwealth has not cited a single case of a state successfully maintaining an unconstitutional conviction on the record of a petitioner seeking its removal. The only question is whether the state takes care of the ministerial function of expungement of its own accord or whether it insists that the habeas petitioner affirmatively request expungement.
Having thus reviewed Gentry, we believe that the majority of the Commonwealth’s arguments in this case are plainly foreclosed by this prior precedent.
A. The district court retained jurisdiction to consider and grant Gall’s motion.
Just as it did in Gentry, the Commonwealth argues that the district court no longer has habeas jurisdiction because Gall has been released from the custody of the Kentucky prison. And just as it was in Gentry, the Commonwealth is incorrect.
As we explained in
Gentry,
“the sole distinction between a conditional and an absolute grant of the writ of habeas corpus is that the former lies latent unless and until the state fails to perform the established condition, at which time the writ springs to life,” and, thus, “[conditional grants of writs of habeas corpus are final orders ... exactly like absolute grants, and they ordinarily and ideally operate automatically, that is, without the need for the district court to act further.”
In Gentry, as in the case of most conditional writs, the option was for the state to retry the defendant. Because it failed to exercise that option, the writ became absolute. 7 The same is generally true in this case, the only difference being the nature of the condition placed on the writ. The option provided the Commonwealth by the conditional writ was to initiate involuntary commitment proceedings. When it failed to exercise that option, the writ became absolute. Thus, as in Gentry, the federal court retains jurisdiction to effectuate and enforce the judgment encompassed by the now-absolute writ provided that all other requisites for federal jurisdiction, such as a live case or controversy, are also present.
B. Venue was proper in the United States District Court for the Eastern District of Kentucky.
The Commonwealth next argues that, because Gall is currently incarcerated in Ohio and because the harm of the al
C. Gall adequately alleges injury.
The Commonwealth further argues that Gall has not pled with sufficient particularity that he is suffering any injury from the conviction’s remaining on his record. Ongoing or future harm is a prerequisite for the existence of a case or controversy, a necessary requirement for the continued existence of federal habeas jurisdiction.
Gentry,
First, we summarily found in
Gall IV
that Gall continued to suffer from collateral consequences in 2003 even though he had already been transferred to Ohio.
Gall IV,
Even if we had not already decided the collateral consequences issue in
Gall TV,
we held in
Gentry
that collateral consequences are essentially presumed simply by virtue of the unconstitutional conviction’s continued existence.
Gentry,
In this case, the Commonwealth has not proven to our satisfaction that the 1987 conviction will have no possible effect on the Ohio parole board’s consideration. 8 Indeed, in its brief on appeal, the Commonwealth admits that, although it doubts that the 1987 conviction will impact the parole hearing due to the presence of other felony convictions, “it is impossible to know how this prior conviction will be handled until Gall comes up for parole.” (Appellant’s Br. at 16.) Furthermore, despite its expressed doubt as to the presence of collateral consequences, we note that the Commonwealth has mounted a vigorous defense over an issue that it would have us believe is meaningless. We are satisfied of the continued existence of collateral consequences sufficient to give rise to a case or controversy.
We also disagree with the notion implied in the Commonwealth’s argument that Gall should simply wait until the day of his parole hearing gets closer to bring this challenge. As stated above, the Commonwealth has not shown that the conviction will be completely irrelevant to his parole hearing. We can find no compelling reason to delay addressing what will be an issue at some point, and we find it particularly ironic that the Commonwealth argues here that Gall should wait when, as we will see, the Commonwealth argues later that Gall has waited too long.
D. Gall has not waived or procedurally defaulted on his right to request nullification and expungement of the 1978 conviction.
The Commonwealth contends that Gall waived or defaulted on his right to seek relief from the federal courts regarding expungement of the 1978 conviction. The basis for this argument is that Gall briefly raised the issue in the district court in connection with his motion to enforce in
Gall TV
and did not press the issue on appeal. This is easily the Commonwealth’s strongest argument in this case as it is the only aspect of this case that is materially distinguishable from
Gentry.
Indeed, as we have already mentioned, we can imagine no reasonable substantive argument in support of a state maintaining an unconstitutional conviction on an indi
We begin with the observation made above, and that we made in
Gentry,
that a conviction declared unconstitutional by a court of competent jurisdiction becomes a legal nullity at the moment that the judgment becomes final.
See Gentry,
With these general principles in mind, we turn to Gall’s case. As we just said, it would not have been unreasonable for Gall to assume that the best place to seek to have his state conviction expunged was the court of the state where he had been convicted. And, indeed, Gall did just that when, in 2004, he asked the Kentucky state court to vacate his conviction under state procedural rules. For their own reasons, the Commonwealth’s courts declined to provide Gall the relief to which he is entitled, but we nevertheless do not fault Gall for directing his request to the state courts.
This leaves only the question whether Gall’s failure to argue the issue of ex-pungement on appeal in Gall IV precludes him from asking the federal courts to order expungement now. Viewing the pleadings at issue in Gall IV, it is clear that the primary issue was whether the Commonwealth had the authority to decline our invitation to initiate civil commitment proceedings and to opt instead to release Gall into the custody of Ohio. The vacation of Gall’s 1978 conviction is not mentioned at all in the body of his motion to enforce our judgment. Instead, vacation of the conviction is only raised by language in Gall’s proposed final judgment that he tendered along with his moving papers proclaiming that his conviction was unconstitutional and vacated.
We find it highly material that expungement of the conviction was not the subject of Gall’s motion in 2001 and, instead, was only fleetingly mentioned in a proposed final judgment. Had expungement of the conviction been the actual subject of the motion, then Gall’s failure to press the point on appeal might preclude him from
In sum, (1) because expungement of the conviction was not truly at issue in Gall IV, (2) because we find no indication that the district court substantively considered and rejected the suggestion in the proposed order to direct expungement of the conviction, and (3) because Gall quite reasonably believed that he could and should seek this relief from the state courts, we find no procedural fault in Gall’s decision to not raise the issue on appeal in Gall IV and to opt instead to seek relief from the state courts.
E. Delay does not preclude Gall from now seeking expungement.
In a related argument, the Commonwealth contends that the delay between Gall’s motion to enforce in 2001 and his motion to enforce in 2008 bars his ability to seek expungement. The Commonwealth actually makes this argument twice, first under the guise of procedural waiver and later under a theory akin to equitable estoppel. We reject each argument.
As we noted above, we find it irreconcilable that the Commonwealth argues both that Gall has waited too long to seek relief and that he must wait until closer to his 2021 parole hearing to seek relief. As to the waiver-by-delay theory, we have already stated that Gall’s litigation strategy of first seeking relief from the state courts, a process which took approximately four years, does not result in a waiver of his right to return to the federal courts. As to the estoppel-by-delay theory, the record is clear that Gall was not simply sitting on his hands all this time. He was first fighting the Commonwealth’s decision to turn him over to the custody of Ohio and then spent four years in state court seeking expungement of the conviction. We therefore find that the passage of time does not, in this case, preclude or affect Gall’s right to seek expungement of the conviction.
F. Neither comity nor the ends of justice bar expungement of the conviction.
The Commonwealth argues that notions of comity and justice should pre
The Commonwealth’s final argument is that, given our statements in
Gall III
that Gall presents a continued risk of danger to society and should “never be allowed to become a free member of the society again,”
Furthermore, we explicitly gave the Commonwealth the opportunity to ensure that Gall never re-enters free society when we made provision for the Commonwealth to initiate involuntary commitment proceedings. The Commonwealth declined and instead transferred Gall to Ohio to serve prison time on different charges. This was the Commonwealth’s decision, not ours and not Gall’s, and we assume— indeed hope — that the Commonwealth made the decision with full understanding of the possibility of parole. Having made its decision, the Commonwealth cannot now complain of its consequences and certainly may not seek to impose unconstitutional effects on Gall in order to negate its perhaps ill-considered decision.
IV.
For the reasons set forth above, we AFFIRM the decision of the district court.
Under the peculiar circumstances of this case, the relief Gall seeks will be of no consequence, and this appeal is therefore moot.
The mootness doctrine derives from Article Ill’s case-or-controversy requirement, which “subsists through all stages of federal judicial proceedings, trial and appellate.”
Spencer v. Kemna,
There is a well-recognized presumption that wrongful criminal convictions carry collateral consequences.
See, e.g., Gentry v. Deuth,
In this case, Gall is incarcerated in Ohio on convictions for rape, attempted rape, and aggravated burglary unrelated to the Kentucky murder conviction he wants wiped off the books. The normal presumption of collateral consequences — quite appropriate in cases where the petitioner is actually released — does not hold here. This is not a case where the petitioner is a free citizen who suffers certain and obvious disabilities as a result of his status as a convicted felon. Rather, Gall’s freedom is restricted for reasons wholly apart from the unconstitutional Kentucky conviction, and the relief he currently seeks will do nothing to change his status as an Ohio prisoner.
The sole collateral consequence claimed by Gall is the possible effect of the Kentucky murder conviction on the decision of the Ohio Parole Board when he becomes eligible for parole eleven years from now. But parole decisions are not made simply by tallying the number of past convictions on a prisoner’s record. The Ohio Parole Board has broad discretion to grant or deny parole “if in its judgment there is reasonable ground to believe that ... paroling the prisoner would further the interests of justice and be consistent with the welfare and security of society.” Ohio Rev.Code § 2967.03. In making this determination, the Parole Board “may investigate and examine ... [the prisoner’s] mental and moral qualities and characteristics ... and any other matter[ ] affecting [the prisoner’s] fitness to be at liberty without being a threat to society.” Id. This statutory language (as well as common sense) allows the Parole Board to consider Gall’s entire history — both legal and factual — in determining his suitability for parole. The Parole Board’s broad discretion in this regard is reflected in the former Ohio Parole Guidelines, which specifically provided that “[i]f a conviction found to be [constitutionally] invalid is nonetheless supported by persuasive information that the offender committed the criminal act, this information may be considered as a negative indicant of parole prognosis!.]” Ohio Parole Board Guidelines Manual, Part C, § A.7 (3d ed. July 1, 2007). 2
Gall’s history includes “overwhelming” evidence that he killed Lisa Jansen,
Gall III,
As the above discussion suggests, the mootness analysis here is not controlled by
Gentry v. Deuth.
In
Gentry,
unlike this case, the petitioner had been released from custody prior to her request for expungement.
The majority glides over this critical analysis by simply adopting this court’s Gall TV conclusion that Gall suffers from collateral consequences. But that was then, this is now, and there is an important difference. Gall had a clear stake in the outcome of Gall TV, unlike the present dispute. His position in Gall TV was that the Commonwealth was required to institute civil commitment proceedings, and that his extradition and incarceration in Ohio were therefore inappropriate. Incarceration and civil commitment are entirely distinct circumstances, and thus Gall had a concrete interest in litigating Gall IV. But once this court ruled on that issue, Gall’s dispute with the Commonwealth was over for all practical purposes.
Moreover, the majority should not assume this case matters simply because the Commonwealth has vigorously opposed Gall’s request for expungement. Regardless how loud or strident the protests from either party, federal courts must always inquire into the threshold issue of jurisdiction.
See Bender v. Williamsport Area School Dist.,
Because this case is moot, I would not reach the question of whether federal habeas law required the district court to order expungement of the 1978 conviction. Nonetheless, a few comments are appropriate.
This case has a convoluted history stemming from varied efforts to balance the unconstitutionality of Gall’s conviction with his potential danger to the public if released. In
Gall III,
this court struck that balance by conditioning habeas relief on the Commonwealth initiating civil commitment proceedings. The Commonwealth
In the current round of this dispute, the majority gives no thought to balancing Gall’s entitlement to habeas relief with the potential danger of his release. Instead, the majority simply declares that a conviction “either is [constitutional] or is not; there is no middle ground from which a state may continue in a Kafka-esque manner to hold certain aspects of the conviction over the petitioner’s head.” Maj. Op. at 358. Such a rhetorical flourish obscures the difference between relief from Gall’s unconstitutional conviction and consideration of his mental instability for purposes of parole. Indeed, the Gall III court was perfectly willing to hold Gall’s mental instability over his head by expecting him to be civilly committed. A habeas court can and should consider public safety in order to fashion relief “as law and justice require.” 28 U.S.C. § 2243.
Regardless, in this case, the question is academic, as ordering expungement will not make a bit of difference. The federal courts have had their say, several times over, and Gall’s future is now in the hands of the Ohio Parole Board, which may properly consider Gall’s actions in Kentucky. I would hold that this case is moot and, accordingly, respectfully dissent.
Notes
. For purposes of clarity, we continue with the numbering system that we adopted in our 2000 opinion granting the conditional writ.
. The commitment had to be carried out under Kentucky's involuntarily commitment procedures as opposed to voluntary commitment even if Gall acquiesced in the result of
. The district court correctly explained that, although Gall sought an order vacating the conviction, the federal court does not have the authority to vacate a state conviction as vacation is an executory act. Instead, the federal court has the authority to nullify a conviction and to direct that it be expunged. It is by virtue of this expungement order that the state must vacate the conviction.
. The Commonwealth was also the Appellant in Gentry.
. As for the presence of collateral consequences stemming from a felony conviction, we explicitly stated, "[w]ith respect to injury, an essential element of a live controversy, the law does not require a habeas petitioner to prove by a preponderance of the evidence that she may face collateral consequences of her unconstitutional felony conviction, for the disabilities consequent to a felony conviction are legion, and patently obvious in many cases.” Id. at 694.
. Indeed, the Commonwealth misreads Gentry in almost all relevant respects. That case is unequivocally contrary to the Commonwealth’s position yet the Commonwealth continues to cite Gentry in support of its position. Thus, although this case is materially identical to Gentry in all respects save for one procedural issue, we cannot summarily affirm for the reasons stated in Gentry because the Commonwealth appears so fundamentally to misunderstand the reasons stated in Gentry.
. “As Gentry had been released from prison prior to the district court's order, the Cornmonwealth obviously had no duty under the district court’s order to take any action with respect to her person. However, Gentry’s status as a convicted felon apparently remained in force, as the Commonwealth did not nullify her conviction, and thus her January 2005 motion reasonably asked the court to enforce its order by making the conditional writ absolute. Therefore, we find that the district court retained jurisdiction to enforce its conditional grant of a writ of habeas corpus.”
. It is on this point that our dissenting colleague primarily disagrees. The dissent contends that (1) this is not the typical case in which we may presume collateral consequences such as inability to vote or own a firearm because Gall continues to be a felon due to the Ohio convictions and (2) the Ohio Parole Board will still consider the strong evidence of Gall’s guilt of murder, and almost certainly deny parole on that basis, even if there is no conviction to confirm that guilt, and so finds the case to be moot. The dissent is certainly correct as to the first contention insofar as this is not a typical habeas case, and it argues persuasively (much more so, we note, than did the Commonwealth) as to the second contention. But nowhere in the authorities is it suggested that the presumption of collateral consequences applies only in typical habeas cases, so the presumption applies here. It is thus the Commonwealth's burden to establish conclusively that the collateral consequences will not come to pass, a task that the Commonwealth has not, and likely could not, accomplish. Furthermore, the dissent's reasoning — that because parole is unlikely under the unique facts of this case, there is a lack of injury sufficient to allow the anomalous result of an unconstitutional conviction remaining on one’s record' — could have dangerous implications even in a typical habeas case. It is possible that the next person seeking to have an unconstitutional conviction removed from her record is very unlikely ever to own a firearm, or had no prior record of ever voting. Surely we would not say that there is no ongoing injury just because this person was unlikely ever to exercise the rights that would be restored after the conviction were erased. It is for this very reason that the presumption of collateral consequences exists.
. At issue in
Gentry
was merely the question whether the federal courts have the authority and jurisdiction to order the state to expunge an unconstitutional conviction. In the course of answering those questions in the affirmative, we held that a petitioner need not "exhaust" his state court remedies seeking ex-pungement before asking that the federal court order expungement.
. In
Gall II,
we noted that because the Commonwealth had failed to prove that Gall lacked extreme emotional disturbance at the time of the murder — an element of first-degree murder in Kentucky at the time of Gall's conviction — the most that could be said was that the Commonwealth had established all of the elements of the lesser offense of manslaughter. However, the statutory maximum sentence for manslaughter under Kentucky law was twenty years, and Gall had already served more than twenty years in prison by the time we issued our decision in
Gall III.
Thus, double jeopardy barred the Commonwealth from re-prosecuting Gall for manslaughter.
. In
The Trial,
Franz Kafka described a totalitarian state in which the judicial system was used to suppress freedom. One of the techniques used was non-final "acquittals.” Kafka describes these "acquittals” as follows: “That is to say, when [the accused] is acquitted in this fashion the charge is lifted from [his] shoulders for the time being, but it con
. One panel of the Ninth Circuit has held that the presumption of collateral consequences flowing from criminal convictions is irrebuttable,
Chacon v. Wood,
In the instant case, the majority would require the Commonwealth to "establish conclusively that the collateral consequences will not come to pass.” Maj. Op. at 355, n. 8. This approach would make the presumption of collateral consequences effectively irrebuttable. Overcoming the presumption will admittedly be rare, but the Commonwealth has done so here.
. Available at http:/ /www.drc.ohio.gov/web/ GuidelineManual07.pdf. On April 1, 2010, those Guidelines were rescinded by the Parole Board, in favor of an approach that gives the Board even more discretion to consider relevant facts in an individual prisoner's case. See Ohio Parole Board Handbook, pp. 2-3 (April 1, 2010), available at http://www.drc. ohio.gov/web/ ParoleBoardHandbook4-l2010(2).pdf.