concurring:
I concur in the judgment. However, I write separately to note my disagreement with the opinion’s unnecessary criticism of Chacon v. Wood, 36 F.3d 1459 (9th Cir.1994).
In Chacon, we held that the release of a habeas petitioner does not render his claims moot because of the presumption that collateral consequences may flow from his criminal conviction. Id. at 1463. We also held that this presumption is irrebuttable. Id. The majority opinion follows Chacon to hold that Larche’s claims are not moot, but in the same breath, “question[s] the wisdom of the Chacon decision.”
Such pointed rebuke of a decision of our court is out of order. The appropriate response would be to call for a rehearing en banc.
Moreover, the opinion’s objections to Cha-con are unavailing. Chacon is in line with well-established Supreme Court and Ninth Circuit precedent that upholds the presumption of collateral consequences. Chacon explains persuasively why the presumption is irrebuttable: “Once convicted, one remains forever subject to the prospect of harsher punishment for a subsequent offense as a result of federal and state [repeat offender] laws.” Id. The opinion reasons that the Chacon rule would require courts to hear habeas petitions even where the petitioner expresses no concern over potential collateral consequences. But a petitioner’s very act of pursuing an appeal after his release from custody, as Larche did here, is evidence of his concern with potential collateral consequences.
For these reasons, I concur only in the result reached by the court.