F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES COURT OF APPEALS
OCT 22 2003
FOR THE TENTH CIRCUIT
PATRICK FISHER
Clerk
MICHAEL ROBERT HOLLEY,
also known as Charles M. Scarth,
Petitioner-Appellant,
v. No. 02-3372
(D.C. No. 01-CV-3047-RDR)
STEVEN L. ANDRASCHKO; (D. Kan.)
CHARLES DONALDSON,
Respondents-Appellees.
MICHAEL ROBERT HOLLEY,
also known as Charles M. Scarth,
Petitioner-Appellant,
v. No. 02-3374
(D.C. No. 00-CV-3181-RDR)
MICHAEL A. LANSING, (D. Kan.)
Respondent-Appellee.
ORDER AND JUDGMENT *
Before SEYMOUR , BRISCOE , and LUCERO , Circuit Judges.
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The 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 appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
these appeals. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cases are
therefore ordered submitted without oral argument.
Michael R. Holley (also known as Charles M. Scarth) filed two 28 U.S.C.
§ 2241 habeas applications while he was a military prisoner incarcerated in the
United States Disciplinary Barracks (USDB) in Fort Leavenworth, Kansas. Upon
learning that Mr. Holley was no longer in custody, the district court dismissed the
applications as moot. In these companioned cases, Mr. Holley, appearing pro se
and in forma pauperis, appeals the district court’s rulings. This court affirms.
BACKGROUND
In 1983, following a general court-martial, Mr. Holley began serving a
five-year sentence of confinement at hard labor at USDB. He was granted a
temporary home parole, restricted to a twenty-five mile radius of his mother’s
address in Whittier, California, from November 20 to November 27, 1984. He
failed to return to USDB at the assigned time and was placed on escape status.
Mr. Holley was apprehended in August 1999 in Phoenix, Arizona, and returned to
USDB to serve the remainder of his sentence.
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On May 15, 2000, Mr. Holley commenced the action appealed as
No. 02-3374. He claimed that his imprisonment violated his due process rights,
because his maximum release date had been illegally extended from the original
date of 1987 to the post-apprehension date of 2001. Later, Mr. Holley attempted
to add additional allegations concerning search and seizure, placement in
disciplinary segregation, confiscation of his personal property, and the need to
indict USDB personnel. While the case was pending, Mr. Holley’s sentence
expired. He was unconditionally released from confinement on November 20,
2001. The district court dismissed the action on the ground of mootness.
The second habeas action, appealed as No. 02-3372, was filed February 12,
2001. In his application, Mr. Holley again alleged that his sentence was illegally
extended and also asserted that he was being held in high-risk disciplinary
segregation without justification or due process. As in No. 02-3374, the district
court dismissed the matter as moot upon proof of Mr. Holley’s release from
custody.
DISCUSSION
This court reviews the jurisdictional issue of mootness de novo. Faustin v.
City & County of Denver , 268 F.3d 942, 947 (10th Cir. 2001). A litigant must
“continue to have a personal stake in the outcome” of his case in order to satisfy
the case or controversy requirement of Article III, § 2 of the Constitution.
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Spencer v. Kemna , 523 U.S. 1, 7 (1998) (quotation omitted). We therefore
consider whether a case or controversy continues to exist.
Because Mr. Holley was still incarcerated when he filed his habeas
applications, the “in custody” provision of § 2241 was satisfied, see Riley v. INS ,
310 F.3d 1253, 1256 (10th Cir. 2002), and his release does not automatically moot
his applications, see Spencer , 523 U.S. at 7. 1
However, a § 2241 habeas
proceeding is generally “‘an attack by a person in custody upon the legality of
that custody, and . . . the traditional function of the writ is to secure release from
illegal custody.’” McIntosh v. United States Parole Comm’n , 115 F.3d 809, 811
(10th Cir. 1997) (quoting Preiser v. Rodriguez , 411 U.S. 475, 484 (1973)). To
maintain his actions, Mr. Holley must demonstrate that serious collateral
consequences of his incarceration exist— i.e ., that there is “some concrete and
continuing injury.” Spencer , 523 U.S. at 7.
Mr. Holley does not make the necessary showing of collateral
consequences. Because he has already been released from custody, “there is
nothing for us to remedy.” Id. at 18. “[M]ootness, however it may have come
about, simply deprives us of our power to act.” Id. The federal courts “are not in
1
In pertinent part, § 2241 provides that “[t]he writ of habeas corpus shall not
extend to a prisoner unless– . . . (3) He is in custody in violation of the
Constitution or laws or treaties of the United States . . . .”
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the business of pronouncing that past actions which have no demonstrable
continuing effect were right or wrong.” Id.
We agree with the district court that Mr. Holley’s habeas actions were
mooted by his release from USDB and conclude that the applications were
correctly dismissed. The judgments of the district court, in Nos. 02-3372 and
02-3374, are AFFIRMED. Mr. Holley’s motion to moot entry of appearance, filed
in No. 02-3374, is denied. The mandates shall issue forthwith.
Entered for the Court
Mary Beck Briscoe
Circuit Judge
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