F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
AUG 18 2000
TENTH CIRCUIT
PATRICK FISHER
Clerk
JOHN CHARLES GILLE,
Petitioner - Appellant,
vs. No. 00-6106
(D.C. No. 99-CV-1567-R)
GLYNN BOOHER, Warden, (W.D. Okla.)
Respondent - Appellee.
ORDER AND JUDGMENT *
Before BRORBY, KELLY, and MURPHY, Circuit Judges. **
Petitioner-Appellant John Gille, appearing pro se, seeks to appeal from the
denial of his habeas petition, 28 U.S.C. § 2241. Mr. Gille claims that the
Oklahoma Department of Corrections denied his liberty interest in good time
credits, when it improperly demoted him to a level at which he could earn fewer
credits. The magistrate judge recommended dismissal on the merits, and the
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. This court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
**
After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1 (G). The cause is therefore ordered submitted without oral argument.
district court adopted the recommendation and denied the petition. Mr. Gille was
released from custody several days after the district court order. We deny a
certificate of appealability because the petition is moot.
“A habeas corpus petition is moot when it no longer presents a case or
controversy under Article III, § 2, of the Constitution.” Aragon v. Shanks, 144
F.3d 690, 691 (10th Cir. 1998). This requirement means that the plaintiff must
have suffered an actual injury which can “‘be redressed by a favorable judicial
decision.’” Spencer v. Kemna, 523 U.S. 1, 7 (1998) (citation omitted). Mr. Gille
complains that the ODOC’s actions improperly lengthened his term of
incarceration. However, because he has now been released, his incarceration
“cannot be undone.” Id. at 7-8. This habeas petition can only be maintained if
Mr. Gille is subject to continuing collateral consequences attributable to the
ODOC’s failure to keep him at a higher earned credit level. Id. We are not aware
of, and Mr. Gille has failed to allege, any continuing consequences of the
ODOC’s action.
Mr. Gille recognizes that a writ of habeas cannot be issued because he is no
longer in custody. Aplt. Br. at 22. His attempt to raise the rights of currently
confined inmates is unavailing because “he is without standing to sue for the
benefit of others.” Birch v. Quinlan, No. 93-3220, 1993 WL 496918, at **1 (10th
Cir. Dec. 3, 1993) (dismissing as moot habeas petition in which released inmate
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attempted to protect other prisoners from alleged wrongs). Mr. Gille also claims
that he “deserves to have his denial of statutory earned credits declared illegal,
and be awarded damages to the degree this court is able to do so, including costs
of this action.” Aplt. Br. at 22. We can not render what amounts to an advisory
opinion regarding the legality of the ODOC’s actions. 1 Moreover, monetary
damages are not recoverable in a habeas action. 2 Accordingly, we deny a
certificate of appealability. See Montez v. McKinna, 208 F.3d 862, 867 (10th
Cir. 2000).
DISMISSED.
Entered for the Court
Paul J. Kelly, Jr.
Circuit Judge
1
We do, however, note in passing that were we to reach the merits of this
case, we would summarily affirm for the reasons given by the magistrate and the
district court.
2
Mr. Gille filed a motion with the district court to convert his habeas
petition into a § 1983 action. The district court denied this motion and Mr. Gille
has not appealed that denial. Even if we were to treat this appeal as a § 1983
claim, however, Mr. Gille’s claim must fail under Heck v. Humphrey, 512 U.S.
477, 486-87 (1994) (“[I]n order to recover damages for allegedly unconstitutional
conviction or imprisonment . . . , a § 1983 plaintiff must prove that the conviction
or sentence has been reversed on direct appeal, expunged by executive order, . . .,
or called into question by a federal court’s issuance of a writ of habeas corpus . . .
.”).
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