CLINT A. LORANCE, Petitioner - Appellant, v. COMMANDANT, U.S. Disciplinary Barracks, Fort Leavenworth, Kansas, Respondent - Appellee.
No. 20-3055
United States Court of Appeals for the Tenth Circuit
September 23, 2021
PUBLISH. FILED United States Court of Appeals Tenth Circuit September 23, 2021 Christopher M. Wolpert Clerk of Court. Appeal from the United States District Court for the District of Kansas (D.C. No. 5:19-CV-03232-JWL)
Before BACHARACH, EBEL, and PHILLIPS, Circuit Judges.
Jared S. Maag, Assistant United States Attorney (Stephen R. McAllister, United States Attorney; James A. Brown, Assistant United States Attorney, with him on the brief), United States Department of Justice, Topeka, Kansas, for Respondent-Appellee.
EBEL, Circuit Judge.
A United States military court-martial convicted Petitioner-Appellant Clint A. Lorance of murder (and a variety of lesser offenses) for actions he took while leading a platoon of soldiers in Afghanistan. After exhausting his direct appeals, Lorance
We conclude that Lorance‘s acceptance of the pardon did not have the legal effect of a confession of guilt and did not constitute a waiver of his habeas rights. Despite Lorance‘s release from custody pursuant to the pardon, he sufficiently alleges ongoing collateral consequences from his convictions, creating a genuine case or controversy and rendering his habeas petition not moot. Accordingly, exercising jurisdiction under
I. BACKGROUND
Only days after assuming command of an Army platoon in Afghanistan, then-First Lieutenant Lorance ordered his platoon to fire upon three Afghans, killing two of them. The details of the killings are not relevant to this appeal,1 but the incident resulted in Lorance‘s court-martial. United States v. Lorance, ARMY 20130679, 2017 WL 2819756, at *1 (A. Ct. Crim. App. June 27, 2017) (unreported). At the court-martial, Lorance pled not guilty, but a military jury convicted him of murder, attempted murder, wrongfully communicating a threat, reckless endangerment,
Lorance appealed, and the U.S. Army Court of Criminal Appeals affirmed his convictions and resulting sentence. Id. at *7. Lorance then petitioned the U.S. Court of Appeals for the Armed Forces, which denied review. United States v. Lorance, 77 M.J. 136 (C.A.A.F. 2017). Because that court denied review, Lorance was precluded from seeking certiorari to the Supreme Court. 10 U.S.C. § 867a (“The Supreme Court may not review by a writ of certiorari under this section any action of the United States Court of Appeals for the Armed Forces in refusing to grant a petition for review.“). Having exhausted his direct appeals, Lorance filed for post-conviction relief from his court-martial convictions in federal district court pursuant to 28 U.S.C. § 2241.
Three days after Lorance filed for habeas relief, the President of the United States issued a full and unconditional pardon to Lorance. Lorance accepted the pardon, resulting in his release from custody. Following the pardon, the U.S. government2 moved to dismiss Lorance‘s motion for post-conviction relief, arguing, among other things, that Lorance‘s release from custody mooted his habeas petition. Lorance responded that his petition was not moot because he continued to suffer collateral consequences from his convictions. The district court agreed that Lorance
II. STANDARD OF REVIEW
This Court reviews de novo the district court‘s dismissal of Lorance‘s habeas petition as moot. Fricke v. Sec‘y of Navy, 509 F.3d 1287, 1289 (10th Cir. 2007) (denial of habeas relief); Marks v. Colo. Dep‘t of Corr., 976 F.3d 1087, 1093 (10th Cir. 2020) (mootness).
III. DISCUSSION
Lorance challenges the district court‘s determination that his acceptance of the presidential pardon constituted a legal confession of guilt and a waiver of habeas rights, rendering his habeas petition moot for lack of a case or controversy. Ultimately, we conclude that the district court erred by dismissing Lorance‘s habeas petition as moot. We reverse the district court‘s judgment and remand.3
In reaching our conclusion, we address: (A) the impact of Lorance‘s release from custody on his habeas petition; (B) acceptance of the pardon as a potential legal confession of guilt; (C) acceptance of the pardon as a potential habeas waiver; and (D) the viability of allowing Lorance‘s habeas case to proceed despite the pardon.
Acceptance of the presidential pardon freed Lorance from custody, so we first review how, despite being out of custody, he could still present a live case or controversy in his habeas petition. The district court agreed with Lorance that his release alone did not moot his petition, and the government does not expressly challenge that conclusion on appeal, so this is not currently at issue. Still, we think it worth reviewing because it establishes the baseline—that but for the district court‘s novel waiver theory, Lorance has a live case or controversy.
We start with the relevant statute, which generally provides that “[t]he writ of habeas corpus shall not extend to a prisoner unless” the prisoner is “in custody.”
Here, Lorance alleged serious collateral consequences stemming from his convictions and subsequent dismissal from the military. Specifically, the pardon did not restore Lorance‘s back pay, rank, or Veterans Administration benefits, nor did it credit his years of confinement toward active-duty retirement. The pardon additionally did not erase or expunge Lorance‘s record of convictions. On appeal,
The district court held that these collateral consequences were sufficient to prevent Lorance‘s habeas petition from becoming moot. The court continued, however, to conclude that Lorance‘s acceptance of the pardon had a separate effect of mooting the case, apart from Lorance‘s release from custody.
The court‘s logic appears to flow as follows: (1) Lorance accepted an “ordinary pardon,” (App. 86), as opposed to one based on innocence, thus implying a recognition of guilt; (2) because Lorance‘s acceptance was an admission of guilt, it constituted a waiver of appellate and habeas rights; (3) because the court does not have the power to void the pardon, the associated waiver of appellate and habeas rights precludes Lorance‘s habeas petition; and (4) allowing the case to proceed despite the pardon could lead to an untenable result based on the government‘s inability to retry him.
The district court resolved this issue of first impression by relying upon questionable inferential leaps. Lorance challenges the court‘s reasoning, though his arguments are disjointed and often miss the mark. Nonetheless, we agree that the
B. Lorance‘s acceptance of the presidential pardon did not constitute a legal confession of guilt.
We consider this the key issue in this appeal because the rest of the district court‘s analysis rested upon the premise that Lorance‘s acceptance of the presidential pardon constituted a legal confession of guilt, similar to a guilty plea. Specifically, the district court ruled that acceptance of a presidential pardon waives appellate and habeas rights because acceptance has the legal effect of an admission of guilt. The district court appears to have been the first federal court to make that determination.
Ultimately, we conclude that Lorance‘s acceptance of the presidential pardon does not have the legal effect of a confession of guilt. To reach that conclusion, we first consider the relevant background and history of the presidential pardon power, then apply those considerations to the facts of this case.
(1) The Pardon Power Generally
The Constitution empowers the President “to grant Reprieves and Pardons for Offences against the United States, except in Cases of Impeachment.”
The text of the Pardon Clause speaks to “Pardons” for “Offences against the United States.”
The historical record sheds little light on the Pardon Clause. The Constitutional Convention engaged in “little discussion or debate” regarding the pardon power. Schick v. Reed, 419 U.S. 256, 262 (1974). In the Federalist Papers, Hamilton described the necessity of the executive clemency authority: “The criminal code of every country partakes so much of necessary severity, that without an easy access to exceptions in favor of unfortunate guilt, justice would wear a countenance too sanguinary and cruel.” Id. at 263 n.6 (quoting The Federalist No. 74, at 500–01). Hamilton also wrote that the presidential pardon power was intended to “resembl[e] equally that of the King of Great-Britain and the Governor of New York.” Id. at 263 (quoting The Federalist No. 69, at 464).
However, the Supreme Court later retreated from that definition, rejecting that “the sense or meaning of the word [pardon]” “exclusively . . . refer[s] to an absolute pardon, exempting a criminal from the punishment which the law inflicts for a crime he has committed.” Ex parte Wells, 59 U.S. (18 How.) 307, 309 (1855). Instead, the Court thought “pardon” simply meant “forgiveness, release, remission,” including “[f]orgiveness for an offence, whether it be one for which the person committing it is liable in law or otherwise.” Id. Thus, the Court recognized that “the [pardon] power was to be used according to law . . . , particularly when the circumstances of any case disclosed such uncertainties as made it doubtful if there should have been a
Despite this recognition, the Court‘s dicta in a later case, Burdick v. United States, 236 U.S. 79 (1915), has been interpreted to suggest that a pardon “carries an imputation of guilt; acceptance a confession of it.” Id. at 94; accord United States v. Schaffer, 240 F.3d 35, 38 (D.C. Cir. 2001) (“[A] pardon does not, standing alone, render Schaffer innocent . . . . In fact, acceptance of a pardon may imply a confession of guilt.“). Here, the district court relied on this Burdick‘s dicta in concluding that Lorance‘s acceptance of the presidential pardon had the legal effect of a confession of guilt. On appeal, the government likewise mainly points to Burdick and its dicta. Yet we do not think Burdick means what the district court read it to mean.
Although no one disputes that Burdick‘s statement that a pardon “carries an imputation of guilt; acceptance a confession of it,” was dictum, that does not alone render it unreliable. 236 U.S. at 94. See Gaylor v. United States, 74 F.3d 214, 217 (10th Cir. 1996) (“[T]his court considers itself bound by Supreme Court dicta almost as firmly as by the Court‘s outright holdings . . . .“). Instead, the problem with the district court‘s reliance on Burdick is that the district court appears to have taken the Court‘s statement out of context, giving it legal effect that ignores the context of that statement. For this reason, as explained below, we conclude that Burdick does not support the district court‘s determination that Lorance‘s acceptance of the pardon had the legal effect of a confession of guilt.
In Burdick, a newspaper editor refused to divulge his sources of information to a grand jury, claiming that his answers might tend to incriminate him in connection with the unlawful disclosure of confidential information by public officials. 236 U.S. at 85–86. To eliminate that defense to testifying, the President issued a pardon to the editor “for all offenses . . . which he . . . has committed or may have committed” in obtaining the confidential information. Id. at 86. When the editor rejected the pardon and continued to refuse to testify, the court charged him with contempt. Id. The question presented to the Supreme Court regarded “the effect of the unaccepted pardon,” specifically, whether it “removed from [the editor] all danger of accusation or conviction of crime,” thus allaying the risk of self-incrimination. Id. at 87.
The Court answered that question by referring to United States v. Wilson, 32 U.S. (7 Pet.) 150 (1833), which held that a pardon had no effect unless accepted by the pardonee. Burdick, 236 U.S. at 90–94. The Burdick Court concluded that the editor had the right to refuse the pardon and to continue to decline to testify. Id.
In reaching the latter conclusion, the Court rejected the government‘s argument that a pardon was analogous to legislative immunity. It is in that context that the relevant dictum arose:
This brings us to the differences between legislative immunity and a pardon. They are substantial. The latter carries an imputation of guilt; acceptance a confession of it. The former has no such imputation or confession. It is tantamount to the silence of the witness. It is noncommittal.
It is the unobtrusive act of the law given protection against a sinister use of his testimony, not like a pardon, requiring him to confess his guilt in order to avoid a conviction of it.
Id. Given the unique character of a pardon, the Court thought it relevant to consider why the editor refused the pardon. Specifically, the Court noted that the editor‘s “reasons for [refusing the pardon] were personal,” and that even if they stemmed from the editor‘s “sensitiveness,” “the personal disgrace or opprobrium attaching to the exposure of crime” was a “consideration . . . not out of place in the case at bar.” Id. (quotation omitted). The Court acknowledged that “such consequence may influence the assertion or relinquishment of a right,” and contrasted these “personal” consequences with “penal consequences.” (Emphasis added.) Id.
In this context, “such consequences” undeniably referred to the personal feelings or the public disgrace that accepting a pardon might bring. The Court was addressing personal consideration that might persuade someone to reject a pardon. The Court was not referring to the legal consequences such as the loss of a legal right collaterally to challenge a defective conviction when it used that language. Indeed, potential legal consequences of loss of the ability to challenge the legality of a pardoned conviction was not even an issue in that case.
This comports with the Court‘s suggestion elsewhere in Burdick that a pardon could have “consequences of even greater disgrace than those from which it purports to relieve.” Id. at 90. The Court noted that a wrongfully convicted person might reject a pardon to avoid the “confession of guilt implied in the acceptance of a pardon,” “preferring to be the victim of the law rather than its acknowledged transgressor, –preferring death even to such certain infamy.” Id. at 90–91.
The way the district court read that language was to mean that an acceptance of a pardon is a literal confession of guilt, with all corresponding legal consequences. But a far more plausible reading is to read Burdick to mean that acceptance of a pardon only makes the pardonee look guilty by implying or imputing that he needs the pardon. This reading, focusing on public opinion of the pardonee, lines up with the Court‘s references to sensitiveness, personal disgrace, opprobrium, and infamy, and its distinction between personal consequences and penal ones.
Although various federal courts have parroted Burdick‘s statement that “acceptance of a pardon may imply a confession of guilt” (or some variation to that effect), see, e.g., Schaffer, 240 F.3d at 38, none have given formal, legal effect to such an implied confession. Instead, they generally cite Burdick to support the proposition that acceptance of a pardon does not erase guilt. See, e.g., Hirschberg v. CFTC, 414 F.3d 679, 682 (7th Cir. 2005) (“A pardon in no way reverses the legal conclusion of the courts . . . .” (citing Burdick, 236 U.S. at 94)). Neither the district court below nor the government on appeal identify a single case in which a federal court has applied Burdick to hold that acceptance of a presidential pardon constitutes a legal confession of guilt and a consequential waiver of habeas rights.
We reject that draconian reading of Burdick. Nothing in the Court‘s opinion purports to establish that acceptance of a pardon is the legal equivalent of a confession of guilt, with all accordant legal consequences. We think that is too much
Moreover, even the government‘s reading of this dictum in Burdick cannot be taken literally. As both parties acknowledge, not all pardons constitute a confession of guilt. For example, a president can issue a posthumous pardon, and a deceased individual cannot confess his guilt. See generally Darryl W. Jackson et al., Bending Toward Justice: The Posthumous Pardon of Lieutenant Henry Ossian Flipper, 74 Ind. L.J. 1251 (1999) (first posthumous pardon). A president may also expressly base a pardon on the belief that the pardonee is innocent of the crime for which he was convicted. See, e.g., Richards v. United States, 192 F.2d 602, 606 (D.C. Cir. 1951) (referring to a pardon “granted by the Executive on the express ground that the convicted man‘s innocence had been established, and that therefore his previous conviction was a miscarriage of justice“). Presidents have also issued pardons to individuals not yet convicted. See United States v. Arpaio, No. CR-16-01012-001-PHX-SRB, 2017 WL 4839072, at *2 (D. Ariz. Oct. 19, 2017) (unreported) (acceptance of pardon after the court found pardonee guilty but before the court entered judgment of conviction); Morgan Chalfont, Trump Defends Intervening In War-Crimes Cases, The Hill (Nov. 25, 2019), 2019 WL 6310696 (pardonee pleaded not guilty to murder and was facing trial at the time of the pardon).
All this confirms that not every acceptance of a pardon constitutes a confession of guilt and the government‘s broad reading of the Burdick dictum simply cannot be correct. That means we must look at the particular circumstances of Lorance‘s pardon.
(2) The Pardon in This Case
The events underlying Lorance‘s court-martial took place in 2012. In the ensuing nine years, Lorance never once expressly acknowledged guilt. In the court-martial, Lorance pled not guilty to all charges. Following his conviction, Lorance exhausted his direct appeals through the military courts, claiming unjust conviction. Lorance then filed this habeas action, again claiming unjust conviction. Throughout the entire process, Lorance has maintained his innocence.
In addition to his efforts to obtain judicial relief, Lorance petitioned for executive clemency, writing to the Secretary of the Army, the Pardon Attorney, and the President. In those letters, Lorance again asserted his innocence and unjust
In response to those letters, the President pardoned Lorance. The pardon stated that the President had exercised his constitutional powers to grant Lorance “a full and unconditional pardon for his conviction while serving as a commissioned officer in the United States Army,” listing each offense of conviction. (Id. at 82.) The pardon thus does not expressly state—let alone require Lorance to admit—that Lorance committed those offenses, only that he was convicted of them. Nothing else in the pardon‘s text purports to address Lorance‘s guilt or innocence,6 nor does the pardon expressly condition acceptance on a confession of guilt and a waiver of habeas rights.
The U.S. Pardon Attorney included a letter to Lorance with the presidential pardon. Among other things, the letter informed Lorance, “A presidential pardon is a sign of forgiveness. It does not erase or expunge the record of conviction and does not indicate innocence.” (Id. at 80 (emphasis added).) The letter does not state that acceptance of the pardon is a confession of guilt or a waiver of habeas rights.
We reach this conclusion on the facts of this case and the specific pardon at issue. We do not suggest that the President could not have chosen to condition Lorance‘s pardon on a confession of guilt, only that he chose not to do so here, instead granting a pardon that did not purport to address Lorance‘s innocence or guilt. We reject the district court‘s suggestion that every presidential pardon constitutes a legal confession of guilt unless expressly grounded on a presidential finding of innocence. Although acceptance of a pardon may imply a public perception of guilt, it does not have the legal effect of doing so where the pardon is not expressly conditioned on such a confession.
In reaching its contrary conclusion, the district court thought it pertinent that, in addition to petitioning for a presidential pardon, Lorance had asked the President
We find this reasoning unpersuasive. Lorance indeed pursued parallel avenues of relief, but in each case he pursued relief on the same grounds: that he was innocent of the offenses charged and had been unjustly convicted based on a trial and appeal process rife with constitutional infirmities. Lorance rebuts the government‘s argument by explaining that he sought the alternative form of relief because it, unlike a pardon, would erase his convictions, alleviating the collateral consequences and providing broader relief. The district court is thus correct that Lorance “knew the difference between a pardon” and the alternative relief he was seeking, (App. 82), but the difference was that the pardon provided incomplete relief, not that it constituted a confession of guilt. The pardon was instead merely agnostic as to Lorance‘s guilt, not purporting to speak to guilt or innocence.
Arguing in support of the district court‘s order, the government suggests that acceptance of a pardon must constitute an admission of guilt, because “if acceptance did not equate to an admission of guilt, there would be no need to reject the
In other scenarios, we can imagine potential pardonees rejecting pardons to avoid the “personal disgrace,” “infamy,” and “opprobrium” imputed in the public‘s perception by the acceptance of a pardon, Burdick, 236 U.S. at 91, 94, and choosing instead to try their luck in court. See Wilson, 32 U.S. at 154–55 (defendant pled guilty and refused to avail himself of a presidential pardon at sentencing). After all, should they fare poorly in court, they could still pursue another pardon.
The government additionally argues that Lorance‘s guilt is established because his convictions are presumed “rightfully done” after the pardon, citing Knote v. United States, 95 U.S. 149 (1877). But what Knote actually says is that once a person is convicted of an offense, regardless of a later pardon, “[t]he offence being established by judicial proceedings, that which has been done or suffered while they were in force is presumed to have been rightfully done and justly suffered, and no satisfaction for it can be required.” Id. at 154. Thus, the “rightfully done” language refers to “that which has been done or suffered while [the judicial proceedings] were in force,” not to the judicial proceedings themselves. This means that a pardon “affords no relief for what has been suffered by the offender in his person by imprisonment, forced labor, or otherwise; it does not give compensation for what has been done or suffered, nor does it impose upon the government any obligation to give it.” Id. at 153–54. It does not mean that Knote creates an irrebuttable presumption that Lorance‘s convictions were “rightfully done.”
The government further complains that Lorance would turn a presidential pardon into an Alford plea, in which a defendant asserts his innocence but pleads guilty on the basis that sufficient evidence exists to convict him of the crime. We find this comparison unpersuasive, but regardless, the President has discretion as to who he pardons and on what terms. If the President wishes to condition a pardon upon an admission of guilt, he may do so; if the President wishes to withhold a pardon from one who continues to proclaim his innocence, he may do so. We simply decline to read into Lorance‘s pardon a condition that the President in this case chose not to include.
Finally, the government argues that Lorance acknowledged his understanding that a pardon is a confession of guilt by stating below, in his response to the government‘s motion to dismiss Lorance‘s habeas petition, that “a presidential pardon is a recognition of guilt.” (Supp. App. 16.) The government argues that Lorance cannot backtrack from this concession and “change horses mid-race.” (Aple. Br. 18 n.11.) Lorance indeed stated this in the introductory paragraph of his
We decline to reject Lorance’s argument based solely on this one statement. The argument at issue in the motion to dismiss and response was whether Lorance still suffered collateral consequences from his convictions, not whether acceptance of a pardon constitutes an admission of guilt. Acknowledging that accepting a pardon “is a recognition of guilt” is not necessarily the same thing as conceding that it has the legal effect of a formal confession. Lorance’s statement was an aside, meant to support his argument that the pardon did not blot out the guilt associated with his convictions or erase the convictions’ collateral consequences. This was a direct response to the government’s argument in its motion to dismiss that the pardon blotted out the existence of Lorance’s guilt. The government did not raise its concession-of-guilt argument until its reply brief below.
Lorance has thus championed the same horse throughout these proceedings, consistently arguing that he suffers from ongoing collateral consequences from his convictions despite the pardon, that he was unjustly convicted, and that his habeas petition is not moot.
* * *
This conclusion alone warrants reversal, because the district court based its mootness determination on the proposition that Lorance’s pardon acceptance constituted an admission of guilt, which in turn constituted a waiver of his appellate and habeas rights, rendering his petition moot.8 But we also independently reject the district court’s mootness and waiver analysis for a further reason, as we explain in the next section.
C. Lorance’s acceptance of the presidential pardon did not constitute a waiver of habeas rights.
In reaching its habeas-waiver determination, the district court also relied upon (1) state court cases holding that acceptance of a gubernatorial pardon constitutes a waiver of appellate rights, and (2) federal cases dealing with plea agreement appeal
As an initial matter, we decline to follow the state court cases addressing gubernatorial pardons. Those cases provide little guidance as to the impact of the acceptance of a presidential pardon on federal habeas rights. Additionally, because we conclude above that Lorance’s acceptance of the presidential pardon did not constitute a confession of guilt, we reject the district court’s waiver conclusion to the extent it is based on that premise.
For that reason, the district court’s reliance on United States v. Hahn, 359 F.3d 1315 (10th Cir. 2004) (en banc) (per curiam), and United States v. Cockerham, 237 F.3d 1179 (10th Cir. 2001), was misplaced. Those cases involve the waiver of appellate rights and habeas rights pursuant to a plea agreement, and the district court apparently deemed Lorance’s acceptance of the pardon the legal equivalent of a plea agreement.
In plea agreements, defendants sometimes waive their appellate and collateral rights. Here, Lorance never pled guilty and never expressly agreed to waive his appellate or habeas rights, regardless of whether his acceptance of the pardon implied guilt. A misplaced analogy to a plea agreement cannot establish that Lorance knowingly and voluntarily waived his habeas rights by accepting the pardon while still professing his innocence and unjust conviction.
Neither the district court below nor the parties on appeal identify any other federal court that has directly ruled on whether acceptance of a presidential pardon constitutes a legal confession of guilt and a waiver of appellate and habeas rights. But the few cases that do touch on mootness in light of a pardon support our analysis, because they reject the general notion that a presidential pardon automatically moots a habeas petition.
For example, in United States v. Schaffer, 240 F.3d 35 (D.C. Cir. 2001), the defendant was convicted of bribing public officials but accepted a presidential pardon while his appeal was pending before the D.C. Circuit.10 Id. at 36–37. If Schaffer’s
Because the D.C. Circuit vacated Schaffer’s conviction instead of leaving it in place, the court necessarily did not associate pardon acceptance with any legal consequences such as a waiver of appellate rights. Schaffer thus supports the proposition that acceptance of a pardon does not constitute a waiver of appellate rights where the pardon does not purport to address the pardonee’s innocence or guilt. We see no reason why that result should be different in the context of habeas rights. Here, that means that Lorance’s acceptance of the presidential pardon, which
Two other cases cited by the parties further support Lorance. In the first, Robson v. United States, 526 F.2d 1145 (1st Cir. 1975), the First Circuit rejected the argument that acceptance of a pardon mooted a habeas petition, reasoning that the petitioner still faced collateral consequences and thus could still bring “an action to review the validity of his criminal conviction.” Id. at 1147. The court continued on to the merits of the habeas petition despite the petitioner’s acceptance of the pardon. Id. This supports Lorance’s argument that acceptance of a pardon does not constitute a waiver of habeas rights and that Lorance’s habeas petition is not moot because Lorance remains subject to the collateral consequences of his convictions.
The district court below rejected Lorance’s reliance on Robson, stating that “Robson did not address whether the defendant accepted the pardon and what effect such an acceptance would have.” (App. 83.) We find this unpersuasive. To start, there is no suggestion in Robson that the petitioner refused the pardon, and acceptance of the pardon is implied in the opinion. See 526 F.2d at 1147 (“[Petitioner] has been released from the effect of the sentence by a presidential pardon.”). Moreover, the Robson court did specifically address “what effect such an
The government responds by pointing to Bjerkan v. United States, 529 F.2d 125 (7th Cir. 1975), in which the Seventh Circuit concluded that a presidential pardon did moot a pending habeas petition. Id. at 126–29. But unlike the district court here, the Bjerkan court did not conclude that the habeas petition was moot on the basis that acceptance of a pardon constitutes a confession of guilt and waiver of habeas rights. Instead, the court deemed the habeas petition moot solely because the petitioner faced no collateral consequences stemming from his conviction. Id. at 129.
In fact, Bjerkan actually hurts the government’s case and supports Lorance’s, because it suggested that if “serious collateral consequences” remain despite acceptance of a pardon, the pardonee’s habeas case “would continue to be viable.” Id. at 127. Because Lorance continues to face such collateral consequences, Bjerkan suggests that his habeas action “continue[s] to be viable” despite the pardon. Id.
In all, the government cites only one case that directly supports its position, and that only in dicta. In that case, Marino v. INS, 537 F.2d 686 (2d Cir. 1976), the
Marino’s dicta thus supports the district court’s conclusion that acceptance of a presidential pardon constitutes an admission of guilt that waives appellate rights. Marino made this suggestion, however, with no more analysis than a cite to Burdick, much as the district court did here. Because we read Burdick differently, we decline to follow Marino’s dicta.
Instead, we follow the lead of a recent Sixth Circuit case, Dennis v. Terris, 927 F.3d 955 (6th Cir. 2019). There, the court considered whether a habeas petitioner’s acceptance of a conditional presidential commutation mooted the petitioner’s collateral challenge to his sentence. Id. at 957. The Sixth Circuit concluded that it did not. Id. at 960. In doing so, the court relied on the express language of the commutation, which required the habeas petitioner to (1) return a
In accepting his commutation, Dennis did not give up any rights to attack his sentence collaterally. He met the two conditions the President imposed. And the President did not add any others, such as a requirement that he abandon further attacks on the original conviction or sentence.
The same is true here: Lorance’s presidential pardon did not condition acceptance of the pardon on an admission of guilt or on a waiver of habeas rights. Indeed, the pardon did not purport to resolve Lorance’s guilt or innocence. See Schaffer, 240 F.3d at 38. Again, under these circumstances, we decline to read into Lorance’s pardon a condition that the President chose not to include.
We thus reject the district court’s conclusion that Lorance’s acceptance of the pardon constituted a legal confession of guilt and a waiver of habeas rights. That leaves one final aspect of the district court’s opinion to address—that allowing the case to proceed despite the pardon could lead to an untenable result.
D. This case is not moot because the district court can grant the relief Lorance seeks.
After concluding that Lorance’s habeas petition was moot because he had waived his habeas rights by accepting the pardon, the district court reinforced its mootness determination on another ground:
Allowing this case to proceed despite the Pardon could lead to an untenable result. Even if the Court determined that
acceptance of the Pardon is not a bar but found that a new trial in the military courts [was] warranted, it would be unable to grant such relief due to the Pardon. To find that a judicial process may proceed under these circumstances does not reflect the concept of a live case or controversy.
(App. 88.) The court cited no authority to support mooting a case on these grounds.
The district court misapplied the mootness doctrine in reaching this conclusion. Although the court would be unable to grant relief in the form of a new trial, “[a] case becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party.” Knox v. Serv. Emps. Int’l Union, 567 U.S. 298, 307 (2012) (emphasis added) (quotation marks omitted) (quoting Erie v. Pap’s A.M., 529 U.S. 277, 287 (2000)). Here, the district court was not limited to granting relief in the form of a new trial, because the court had the authority to resolve Lorance’s habeas petition by vacating his conviction. See Hearst, 638 F.2d at 1192 n.1 (habeas petition not moot following commutation because “[t]he district court on remand will have the power under [
The district court’s concern—that it might determine that a new trial is warranted but be unable to grant that relief due to the pardon—does not render Lorance’s habeas case moot now, but instead only raises the possibility that the case could become moot at a later time, if the court vacates the conviction but determines that a new trial is warranted. In that scenario, the case really would become moot at that time because the court would be unable to grant any further relief. See Schaffer, 240 F.3d at 38 (where direct appeal becomes moot due to pardon, both the “efficacy
In response, the government complains that it is unfair that Lorance can “tak[e] advantage of the President’s grace” by accepting the pardon while still challenging his convictions, thus forcing the Executive to continue to litigate Lorance’s guilt after pardoning him. (Aple. Br. 27–28.) But that is the result of the government’s own action in extending a pardon to Lorance that did not condition acceptance on a waiver of his collateral challenge, and the government cannot complain of that now. What future remedies the government may have is irrelevant, so long as the district court can grant Lorance some form of relief now (which it can).
For these reasons, Lorance still has a live interest in having the district court consider the merits of his habeas petition to determine whether Lorance was convicted in violation of the Constitution. Even though Lorance can never be retried because of the pardon, the district court could vacate Lorance’s convictions. That would confirm Lorance’s position that he was unconstitutionally convicted and give Lorance real benefits. Thus, contrary to the government’s arguments, Lorance’s interest is not theoretical.
IV. CONCLUSION
For the reasons provided above, we hold that Lorance’s acceptance of the presidential pardon did not constitute a legal confession of guilt or a waiver of his habeas rights, nor did it leave the court without a live case or controversy.12 The Court reverses the district court’s dismissal of Lorance’s habeas petition and remands for further proceedings.