                                                                                  FILED
                                                                      United States Court of Appeals
                                       PUBLISH                                Tenth Circuit

                      UNITED STATES COURT OF APPEALS                       December 29, 2015

                                                                          Elisabeth A. Shumaker
                            FOR THE TENTH CIRCUIT                             Clerk of Court
                        _________________________________

ABRAHAM HAGOS,

      Petitioner - Appellant,

v.                                                          No. 14-1497

RICK RAEMISCH, Executive Director,
Colorado Department of Corrections;
JAMES FALK, Warden, Sterling
Correctional Facility; CYNTHIA H.
COFFMAN, Attorney General of the State
of Colorado,

      Respondents - Appellees.
                      _________________________________

           APPEAL FROM THE UNITED STATES DISTRICT COURT
                   FOR THE DISTRICT OF COLORADO
                       (D.C. No. 1:13-CV-02375-RPM)
                    _________________________________

Jonathan D. Reppucci, Reppucci Law Firm, P.C., Denver, Colorado, appearing for
Appellant.

John J. Fuerst III, Senior Assistant Attorney General, Criminal Appeals Section (Cynthia
H. Coffman, Attorney General, with him on the briefs), Office of the Attorney General
for the State of Colorado, Denver, Colorado, appearing for Appellees.
                          _________________________________

Before HOLMES, BALDOCK, and MATHESON, Circuit Judges.
                  _________________________________

      
       Pursuant to Fed. R. App. P. 43(c)(2), John W. Suthers is replaced by Cynthia H.
Coffman as Attorney General of the State of Colorado.
MATHESON, Circuit Judge.
                   _________________________________

       Abraham Hagos is incarcerated in Colorado State prison for multiple convictions

from two prosecutions. In the first case, he was convicted of first-degree murder,

attempted first-degree murder, conspiracy to commit first-degree murder, and two counts

of retaliation against a witness. In the second, he was convicted of first-degree

kidnapping, first-degree burglary, felony menacing, and conspiracy. He is serving two

consecutive life sentences, one from each case.

       In a separate pending state court proceeding, Mr. Hagos is challenging his murder

and related convictions from his first case. In the instant appeal, he seeks federal habeas

review under 28 U.S.C. § 2254 of his kidnapping and related convictions from his second

case. The district court dismissed his § 2254 application for lack of a case or controversy

and granted Mr. Hagos a certificate of appealability (“COA”) to appeal this ruling, which

he does so here.

                                   I. BACKGROUND

                                A. Factual Background

       The events leading to Mr. Hagos’s incarceration are detailed in the Colorado

Supreme Court’s (“CSC”) decision in Hagos v. People, 288 P.3d 116, 117-18 (Colo.

2012), and our decision in Hagos v. Werholtz, 548 F. App’x 540, 541-43 (10th Cir. 2013)

(unpublished). We do not recount them here because the issues raised in this appeal do

not depend on them.




                                             -2-
       Mr. Hagos was convicted of different crimes in two separate trials. In this

opinion, we will refer to one as “the kidnapping case” and the other as “the murder case.”

This appeal involves our review of the district court’s dismissal of Mr. Hagos’s § 2254

application challenging his convictions in the kidnapping case.

1. The Kidnapping Case

       On December 30, 2002, Mr. Hagos was convicted of first-degree kidnapping and

other crimes. He was sentenced to life in prison without the possibility of parole.

       The Colorado Court of Appeals (“CCA”) affirmed his convictions on direct

appeal, and the CSC and United States Supreme Court both denied Mr. Hagos’s petitions

for a writ of certiorari. Mr. Hagos sought state post-conviction relief, which the district

court, the CCA, and the CSC denied.

       In September 2013, Mr. Hagos filed a § 2254 application, seeking federal habeas

review. The district court dismissed the application after concluding it did not satisfy

Article III’s case or controversy requirement. We review the dismissal here.

2. The Murder Case

       On April 26, 2002, Mr. Hagos was convicted of first-degree murder. The state

court sentenced him to life in prison without the possibility of parole, to run

consecutively to the life sentence previously imposed in the kidnapping case. Mr. Hagos

is therefore serving two consecutive life sentences without the possibility of parole.

       On direct appeal, the CCA affirmed, People v. Hagos, 250 P.3d 596 (Colo. App.

2009), and the CSC and United States Supreme Court denied certiorari, Hagos v. People,




                                             -3-
No. 10SC192, 2010 WL 3529276, at *1 (Colo. Sept. 13, 2010); Hagos v. Colorado, 562

U.S. 1297 (2011).

       Mr. Hagos sought federal habeas relief in a § 2254 application, which the district

court denied. Hagos v. Clements, No. 12-cv-00678-REB, 2013 WL 674026, at *1 (D.

Colo. Feb. 25, 2013). This court dismissed the matter after denying Mr. Hagos’s request

for a COA. Werholtz, 548 F. App’x at 541. The Supreme Court denied Mr. Hagos’s

petition for writ of certiorari. Hagos v. Raemisch, 135 S. Ct. 340 (2014).

       On August 25, 2014, Mr. Hagos moved for post-conviction relief in state court.

Mr. Hagos reports this matter remains pending.

                              B. Procedural Background

       As discussed above, in September 2013, Mr. Hagos filed a § 2254 habeas petition

in the kidnapping case. At that time, Mr. Hagos’s request for a COA on his § 2254

petition in the murder case was also pending before the Tenth Circuit. Werholtz, 548 F.

App’x at 541.

1. The District Court’s Sua Sponte Order to Show Cause and Mr. Hagos’s
   Response

       The district court sua sponte ordered Mr. Hagos to show cause why the § 2254

proceedings in the kidnapping case should not be stayed pending the Tenth Circuit’s

resolution of Mr. Hagos’s § 2254 application in the murder case.

       The order included discussion explaining why the district court was issuing it.

The court relied on Peyton v. Rowe, 391 U.S. 54 (1968), and Garlotte v. Fordice, 515

U.S. 39 (1995). In those cases, the Supreme Court interpreted the “in custody”



                                            -4-
requirement for habeas relief. The district court in this case interpreted Peyton and

Garlotte to provide that “if immediate release is not granted, the writ must have some

effect of shortening the prisoner’s time in prison.” App. at 206. The court also cited

Mays v. Dinwiddie, 580 F.3d 1136 (10th Cir. 2009), which held that a prisoner was not

“in custody” for purposes of habeas review because his concurrent sentence had expired.

       The district court acknowledged Mr. Hagos’s case was different from Peyton,

Garlotte, and Mays because he is currently serving the kidnapping sentence that he is

challenging in the instant § 2254 petition while the prisoners in Peyton, Garlotte, and

Mays were not currently serving the sentences they challenged. Nonetheless, the court

said, “[e]ven if the Court were to invalidate his kidnapping conviction here, he would still

unquestionably remain in custody for the rest of his life, if his murder[] convictions are

upheld by the Tenth Circuit and, if it comes to it, by the U.S. Supreme Court.” App. at

208.

       Relying on an out-of-circuit district court opinion decided more than 40 years ago,

Kelly v. Wingo, 313 F. Supp. 1059 (W.D. Ky. 1970), the district court concluded that if

granting habeas relief in Mr. Hagos’s kidnapping case would not reduce the duration of

his confinement or effect his immediate release, the habeas petition would not satisfy

Article III’s case or controversy requirement.1

       1
         By staying Mr. Hagos’s § 2254 petition in his kidnapping case while he sought
Tenth Circuit and Supreme Court review in his § 2254 murder case, the district court
implicitly recognized a case or controversy existed while the federal matter remained
pending. The court did not explain why the pending state post-conviction relief is not
similarly sufficient to maintain a case or controversy.



                                             -5-
       Having provided the foregoing analysis, the district court ordered Mr. Hagos to

show cause why it should not stay the § 2254 proceedings pending the outcome of his

habeas challenge to the murder conviction.

       In response, Mr. Hagos opposed a stay and argued he is “in custody” for purposes

of habeas review under Peyton and Garlotte. He said the district court’s reliance on Kelly

was misplaced because Peyton and Garlotte showed Kelly’s reasoning was flawed. He

also asserted his habeas petition met the case or controversy requirement because he

could still challenge his murder conviction in state court. It was therefore premature to

conclude he would remain in custody for the rest of his life even if the court granted

habeas relief on his kidnapping conviction. He further argued habeas relief could reduce

his custody level status in state prison.

2. The District Court Stays and Dismisses the Case

       The district court, rejecting Mr. Hagos’s arguments, stayed the case in November

2013. In December 2013, the Tenth Circuit denied Mr. Hagos’s request for a COA in the

§ 2254 murder case proceeding. Mr. Hagos petitioned the U.S. Supreme Court for

certiorari, which it denied in October 2014.

       In light of these developments, in November 2014 the district court dismissed Mr.

Hagos’s § 2254 petition in the kidnapping case for the reasons explained in its stay order.

The court acknowledged Mr. Hagos had filed a new post-conviction relief petition in his

murder case in state court, but concluded dismissal was nonetheless warranted because

“[i]f he is granted postconviction relief in that case, he could file a new habeas




                                               -6-
Application [in federal court].” App. at 290. The court further concluded its dismissal

ruling was debatable and granted a COA.

       We have jurisdiction under 28 U.S.C. §§ 1291 and 2253. Miller-El v. Cockrell,

537 U.S. 322, 335-36 (2003); Lockett v. Trammel, 711 F.3d 1218, 1230 (10th Cir. 2013).

We review de novo whether Mr. Hagos was “in custody” and whether his § 2254 petition

presents a case or controversy. See Mays, 580 F.3d at 1138; Rio Grande Silvery Minnow

v. Bureau of Reclamation, 601 F.3d 1096, 1109 (10th Cir. 2010).

                                     II. DISCUSSION

       We reverse the district court’s order dismissing Mr. Hagos’s § 2254 petition

because (1) he is “in custody” for his kidnapping conviction for purposes of habeas

review,2 and (2) an Article III case or controversy exists to permit the district court’s

review of his § 2254 petition.

            A. Mr. Hagos Is “In Custody” for His Kidnapping Conviction

       Mr. Hagos’s life sentence for murder is set to run consecutively to his life sentence

for kidnapping. He satisfies the “in custody” requirement.

       Under 28 U.S.C. § 2254(a), federal courts “shall entertain an application for a writ

of habeas corpus in behalf of a person in custody pursuant to the judgment of a State

court only on the ground that he is in custody in violation of the Constitution or laws or

treaties of the United States.”

       2
         The district court relied on cases interpreting the “in custody” requirement in
reaching its conclusion that Mr. Hagos’s § 2254 petition lacked a case or controversy.
For clarity and completeness, we discuss the “in custody” requirement.



                                              -7-
       In Peyton, the Supreme Court reviewed two habeas petitions filed by prisoners

serving consecutive sentences. The prisoners both sought habeas relief, not for the

sentences they were serving, but for the sentences set to run consecutively to their present

sentences. Peyton, 391 U.S. at 55-57. Reversing McNally v. Hill, 293 U.S. 131 (1934),

the Court held the prisoners satisfied the “in custody” requirement even though they were

challenging their future consecutive sentences. Peyton, 391 U.S. at 55, 67. The Peyton

Court rejected McNally’s reliance on the premise that habeas corpus had historically been

limited to cases where a favorable result for the prisoner would “result[] in his immediate

release.” Id. at 65-66 (quotation omitted); see also Walker v. Wainwright, 390 U.S. 335,

336-37 (1968) (per curiam) (questioning McNally, holding a prisoner can challenge the

sentence he is currently serving even though he faces a consecutive sentence once the

sentence is served, and explaining, “[i]t is immaterial that another prison term might still

await him even if he should successfully establish the unconstitutionality of his present

imprisonment”).

       Garlotte presented the Supreme Court with “Peyton’s complement, or Peyton in

reverse.” 515 U.S. at 41. Mr. Garlotte was serving consecutive sentences and sought

habeas relief for only his first conviction. Id. He had already served the full term of the

challenged sentence, but it continued to affect his eligibility for parole. Id. The Court

extended Peyton’s view that a prisoner’s consecutive sentences compose a “continuous

stream,” id., and the prisoner remains in custody for purposes of habeas review until all

of the sentences are served, id. at 43.




                                             -8-
       Mr. Hagos’s kidnapping and murder convictions were imposed consecutively and

form a continuous stream. Under Peyton and Garlotte, Mr. Hagos is therefore in custody

to seek habeas relief for any of the sentences forming that continuous stream. He

“remains ‘in custody’ under all of his sentences until all are served.” Id. at 41.

       The district court’s reliance on Mays v. Dinwiddie is misplaced. Mr. Mays sought

habeas relief for an expired sentence he had served concurrently with other sentences.

580 F.3d at 1137-38. This court declined to extend Peyton’s and Garlotte’s continuous-

stream principle to Mr. Mays’s expired concurrent sentence. Id. at 1140-41. We

concluded Mr. Mays was not in custody on the concurrent sentence once it expired. Id.

Mays is limited to expired concurrent sentences and is inapplicable to Mr. Hagos’s non-

expired consecutive sentence.

    B. Mr. Hagos’s Habeas Petition Satisfies the Article III Case or Controversy
                                   Requirement

       Mr. Hagos is incarcerated based on the conviction he seeks to challenge in the

instant § 2254 petition. Such challenges satisfy Article III’s case or controversy

requirement.3

1. Precedent Supports Justiciability


       3
         It is unclear whether the district court considered the case or controversy defect
to be a lack of standing or mootness. The doctrines are similar. “Mootness usually
results when a plaintiff has standing at the beginning of a case, but, due to intervening
events, loses one of the elements of standing during litigation; thus, courts have
sometimes described mootness as ‘the doctrine of standing set in a time frame.’”
WildEarth Guardians v. Pub. Serv. Co. of Colo., 690 F.3d 1174, 1182 (10th Cir. 2012)
(quoting Arizonans for Official English v. Arizona, 520 U.S. 43, 68 n.22 (1997)).



                                             -9-
       The United States Constitution limits federal jurisdiction to “[c]ases” and

“[c]ontroversies.” U.S. Const. art. III, § 2, cl. 1. To satisfy Article III’s case or

controversy requirement, “a litigant must have suffered, or be threatened with, an actual

injury traceable to the defendant and likely to be redressed by a favorable judicial

decision.” Chafin v. Chafin, 133 S. Ct. 1017, 1023 (2013) (quotation omitted). “This

case-or-controversy requirement subsists through all stages of federal judicial

proceedings, trial and appellate.” Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477 (1990).

       “[A] criminal case is moot only if it is shown that there is no possibility that any

collateral legal consequences will be imposed on the basis of the challenged conviction.”

Sibron v. New York, 392 U.S. 40, 57 (1968). The Supreme Court relied on Sibron for this

principle when reviewing a habeas petition in Spencer v. Kemna, 523 U.S. 1, 8 (1998).

Sibron also recognized that it is an “obvious fact of life that most criminal convictions do

in fact entail adverse collateral legal consequences.” 392 U.S. at 55. It therefore follows,

as the Court said in Spencer, that “[a]n incarcerated convict’s (or a parolee’s) [habeas]

challenge to the validity of his conviction always satisfies the case-or-controversy

requirement, because the incarceration (or the restriction imposed by the terms of the

parole) constitutes a concrete injury, caused by the conviction and redressable by

invalidation of the conviction.” 523 U.S. at 7 (emphasis added); accord 13C Charles

Alan Wright, Arthur R. Miller, & Edward H. Cooper, Federal Practice & Procedure §

3533.4.1, at 168-69 (3d ed. 2008) (“There is no problem with mootness if the [habeas]

petitioner remains confined by command of the conviction addressed by the petition.”);

Brian R. Means, Postconviction Remedies § 8:4 (2015) (“A challenge to a conviction by


                                              - 10 -
an individual presently incarcerated or otherwise in custody—including parole,

supervised release, or probation—satisfies the case-or-controversy requirement.”

(emphasis omitted)).4

       Spencer makes clear that so long as Mr. Hagos’s § 2254 petition challenges the

conviction for which he is incarcerated, he satisfies the case or controversy requirement.

Because he is incarcerated based on the kidnapping conviction he seeks to challenge, his

§ 2254 petition involves a case or controversy.

       The Eighth Circuit’s decision in Brewer v. Iowa, 19 F.3d 1248 (8th Cir. 1994), is

on point and instructive. Mr. Brewer had been sentenced to life in prison for second-

degree murder. Brewer, 19 F.3d at 1250. While serving that sentence, Mr. Brewer

escaped from prison and committed two more murders, was convicted of one of them,

and sentenced to a second life sentence. Id. He unsuccessfully sought post-conviction

relief for each conviction in state court. Id. Later, when Mr. Brewer attempted to

challenge the initial murder conviction in a § 2254 petition, the State argued, “[Mr.]

Brewer’s second life sentence . . . moots this action for habeas relief because even if he is

successful here, he will still remain incarcerated for life.” Id. The Eighth Circuit rejected

the State’s argument and affirmed the district court’s conclusion that the action was not

       4
        The district court drew on “in custody” cases (Peyton and Garlotte) to assess the
existence of a case or controversy. The two inquiries are distinct, see Carafas v.
LaVallee, 391 U.S. 234, 238 (1968), but they “are grounded upon similar policies,” Brian
R. Means, Postconviction Remedies § 8:2. “[A]s a practical matter it is clear from the
cases that restrictions upon liberty sufficient to satisfy the ‘custody’ requirement in
habeas corpus are substantially more severe than the burdens that will prevent questions
from becoming moot.” Brian R. Means, Postconviction Remedies § 8:2.



                                             - 11 -
moot “because a possibility exists that the challenged conviction, if determined to be

invalid, could cause him adverse legal consequences.” Id. at 1250-51. The court

explained, for example, that Mr. Brewer could be precluded from obtaining a commuted

sentence if he has two convictions on his record rather than one. Id. If he prevailed in

challenging one of the sentences via § 2254, he would improve the possibility of a

commutation of his other sentence. Id.5

2. Pending State Post-Conviction Proceedings Support Justiciability

       Mr. Hagos presents an even clearer case or controversy than in Brewer. Because

his state post-conviction petition remains pending, we cannot be certain that Mr. Hagos

would remain incarcerated for life if he succeeds in challenging his kidnapping

conviction through federal habeas review. Although success on either claim might be

remote, the Supreme Court “accept[s] the most generalized and hypothetical of

       5
           At oral argument Mr. Hagos’s counsel stated,

       even if Mr. Hagos [does not successfully challenge his convictions in the
       murder case], he does have an opportunity to petition the Governor of
       Colorado for clemency or a pardon, and . . . however unlikely [it] might be
       that he’d ever be granted a pardon, it’s certainly a lot more unlikely that
       he’d be granted a pardon if he had two life sentences than one.

Oral Arg. at 18:18-18:41. He did not raise this argument in his briefing. Although we
typically do not consider issues raised for the first time at oral argument, see Frost v.
Pryor, 749 F.3d 1212, 1226 n.9 (10th Cir. 2014), we “have a continuing obligation to
assure ourselves that appellate jurisdiction exists,” Chavez v. City of Albuquerque, 402
F.3d 1039, 1043 (10th Cir. 2005). We need not rely on this point, however, because as
discussed more fully below, Mr. Hagos properly identified other adverse legal
consequences stemming from his kidnapping conviction. We nonetheless note that under
the Eighth Circuit’s decision, Mr. Hagos’s reduced likelihood of obtaining a commuted
sentence would be sufficient to satisfy the case or controversy requirement.



                                            - 12 -
consequences as sufficient to avoid mootness in [habeas] challenges to [a] conviction.”

Spencer, 523 U.S. at 10.

3. Adverse Legal Consequences of Conviction Support Justiciability

       The district court thought Mr. Hagos’s two consecutive life sentences made his

attempt to challenge one of the convictions not redressable, and therefore non-justiciable.

But the court erred in concluding Mr. Hagos’s challenge to his conviction does not

present an Article III case or controversy because his sentence is not redressable. See

Sciberras v. United States, 404 F.2d 247, 248-49 (10th Cir. 1968) (reversing district

court’s dismissal of a 28 U.S.C. § 2255 petition where prisoner challenged only one of

two concurrent 5-year sentences). The district court’s view of redressability is too

narrow. Mr. Hagos’s challenge is redressable even if it would not hasten his release from

prison because his conviction could have adverse legal consequences.

       Section 2254 habeas relief on Mr. Hagos’s kidnapping conviction could affect his

custody level in prison. The State argues Mr. Hagos’s offender classification will never

fall below level III or a level III facility based on his murder conviction. But the State

misses the point. If Mr. Hagos succeeds in challenging his kidnapping conviction, it

would not be available to enhance Mr. Hagos’s custody above level III. The custody

levels in the Colorado prison system range from I to V.

       Colorado Department of Corrections Regulation Number 600-01 explains the

Colorado prison system has five security levels. “The DOC utilizes an objective rating

process to balance the assignment of offenders at the lowest custody level consistent with

an objective assessment of public risk, the safety of DOC employees/contract workers


                                             - 13 -
and other offenders, the security needs of the offender, and the programmatic needs of the

offender.” Aplt. Br., Attach. 5 at 4.

       At oral argument, the State conceded Mr. Hagos’s convictions in the kidnapping

case could be relevant to his restraint level. Oral Arg. at 20:00-20:52. Although Mr.

Hagos is certain to be classified as no less than a level III prisoner based on his

convictions from the murder case, he could be classified more restrictively as a level IV

or V prisoner based in part on his convictions from the kidnapping case.

       The State also conceded at oral argument that Mr. Hagos’s kidnapping conviction

could affect his eligibility for prison programs, such as work within the prison and

education programs. Id. at 21:12-21:28.

                                        * * * *

       In sum, Mr. Hagos’s § 2254 petition presents a case or controversy. First,

precedent—Sibron, Spencer, and Brewer—strongly supports that Mr. Hagos’s habeas

challenge to his kidnapping conviction qualifies for Article III jurisdiction. Second, Mr.

Hagos’s pending state post-conviction proceeding in the murder case makes the § 2254

application in the kidnapping case a live, redressable claim. Third, the adverse legal

consequences of the kidnapping conviction on such matters as custody status and

eligibility for prison programs show that Mr. Hagos’s § 2254 application satisfies the

standing and mootness elements of justiciability.6


       6
          As noted above, the district court relied on the Western District of Kentucky’s
1970 decision in Kelly v. Wingo, 313 F. Supp. 1059 (W.D. Ky. 1970). Other than the
district court in this case, we have not found a single judicial opinion citing to Kelly for
                                                                                Continued . . .

                                             - 14 -
                                   III. CONCLUSION

       We reverse and remand for consideration of Mr. Hagos’s § 2254 petition.


                                              ENTERED FOR THE COURT,



                                              Scott M. Matheson, Jr.
                                              Circuit Judge




any proposition. A 45-year-old out-of-circuit district court opinion, Kelly is inconsistent
with Supreme Court precedent cited in this opinion and its reasoning is otherwise
unpersuasive.



                                            - 15 -
