United States District Court, D. Colorado
A. BRIMMER UNITED STATES DISTRICT JUDGE.
matter is before the Court on the Request to Reconsider
Dismissal or Alternatively Request for Certificate of
Appealability [Docket No. 41] filed by applicant Robert
January 23, 2017, Mr. Claudio filed an Application for a Writ
of Habeas Corpus Pursuant to 28 U.S.C. § 2241 [Docket
No. 1]. At the time he filed his petition, applicant was in
custody at Bent County Correctional Facility, Las Animas,
Colorado. Id. at 2. On August 8, 2017, applicant
filed the Notice of Change of Address and Request to Maintain
Proceedings [Docket No. 38], stating that he “was
recently released from prison by discharge on July 27,
2017.” Id. at 1.
August 24, 2017, the Court issued a written Order [Docket No.
39] denying Mr. Claudio's Application as moot, as his
release from prison deprived the Court of subject matter
jurisdiction. Mr. Claudio subsequently moved for this court
to reconsider dismissal of his claim or, in the alternative,
to issue a certificate of appealability under 28 U.S.C.
§ 2253. Docket No. 41.
habeas proceeding under 28 U.S.C. § 2241 is “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). Under 28 U.S.C. § 2241(c), habeas
jurisdiction “shall not extend to a prisoner unless . .
. [h]e is in custody in violation of the Constitution or laws
or treaties of the United States.” A federal court has
subject matter jurisdiction under § 2241(c)(3) if two
requirements are met: (1) the applicant is “in custody,
” and (2) the custody is “in violation of the
Constitution or laws or treaties of the United States.”
28 U.S.C. § 2241(c)(3); Maleng v. Cook, 490
U.S. 488, 490 (1989). The concept of “custody”
extends beyond incarceration to “parole on an unexpired
sentence.” Waldon v. Cowley, 880 F.2d 291, 292
(10th Cir. 1989) (citing Maleng, 490 U.S. at 492).
However, when a habeas petitioner's sentence has fully
expired and petitioner suffers “no present restraint
from a conviction, ” a habeas petitioner is no longer
“in custody” for purposes of the federal habeas
statute. Maleng, 490 U.S. at 492.
federal court must have subject matter jurisdiction at every
stage of the case. See Arizonans for Official English v.
Arizona, 520 U.S. 43, 67 (1997) (“To qualify as a
case fit for federal-court adjudication, an actual
controversy must be extant at all stages of review, not
merely at the time the complaint is filed.” (quotations
omitted)). When a habeas petitioner's sentence expires,
the court lacks subject matter jurisdiction because the case
or controversy is moot. See Spencer v. Kemna, 523
U.S. 1, 7-8 (1998).
exception to the mootness doctrine occurs if there is a
sufficient “collateral consequence” of the
conviction to give the petitioner a “sufficient stake
in the outcome of the case.” Id.; Oyler v.
Allenbrand, 23 F.3d 292, 294 (10th Cir. 1994). However,
this exception does not apply when, as in this case, the
petition attacks the sentence served rather than the validity
of the underlying state conviction. See Vandenberg v.
Rodgers, 801 F.2d 377, 378 (10th Cir. 1986) (finding
petitioner's appeal moot when the petition only
challenged determinations that delayed his parole date). Mr.
Claudio alleges that Colorado miscalculated the amount of
time remaining on his sentence, but he does not challenge the
validity of the underlying convictions. Docket No. 1 at 2-3.
Therefore, based on the information before the Court, the
collateral consequences rule does not apply to Mr. Claudio..
Court construes papers filed by Mr. Claudio liberally because
he is not represented by an attorney. See Haines v.
Kerner, 404 U.S. 519, 520-21 (1972); Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). However,
the Court should not be an advocate for a pro se
litigant. See Hall, 935 F.2d at 1110.
question before the Court is whether Mr. Claudio's
sentence has fully expired. The Colorado Department of
Corrections released Mr. Claudio from incarceration on July
27, 2017. Docket No. 41 at 1, ¶ 2. Mr. Claudio has not
alleged that he is currently on parole or under any other
present restraint from his conviction. See Maleng,
490 U.S. at 492. The sentence Mr. Claudio is attacking is the
result of a parole revocation. See Docket No. 41 at
2, ¶ 6; Docket No. 26-1 at 2, ¶ 11 (“[T]he
decision of the Parole Board was to revoke Mr. Claudio's
parole for the remainder of the five years of mandatory
parole.”). Because there is no reason to believe that
Mr. Claudio is currently incarcerated or on parole, his
sentence has fully expired.
Claudio argues that reconsideration is appropriate because he
was in custody at the time he filed the petition, and
therefore his subsequent release from custody does not moot
his habeas petition. See Docket No. 41 at 2, ¶
4 (citing Maleng v. Cook, 490 U.S. 488 (1989)).
However, his reliance on Maleng is misplaced. The
Supreme Court in Maleng concluded that a habeas
petitioner is not “in custody” after the sentence
imposed has fully expired. See Maleng, 490 U.S. at
492. Here, Mr. Claudio's sentence has fully expired. Mr.
Claudio can no longer “secure release from illegal
custody” through a § 2241 application because he
is not in custody at all. See McIntosh, 115 F.3d at
811. Therefore, his petition for habeas corpus is moot.
Claudio requests a certificate of appealability under 28
U.S.C. § 2253. A certificate of appealability is
discretionary and may issue only if the applicant has made a
“substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). Applicant cannot
make such a showing because he has been released from custody
and because he does not challenge the validity of the
that applicant's Request to Reconsider Dismissal or
Alternatively Request for Certificate of ...