                      UNITED STATES COURT OF APPEALS
Filed 12/19/96
                             FOR THE TENTH CIRCUIT



    SELWYN ANDREW CHARLES,

                Petitioner-Appellant,

    v.                                                   No. 95-3299
                                                    (D.C. No. 92-CV-3347)
    COLONEL GREGORY A. LOWE,                               (D. Kan.)

                Respondent-Appellee.




                             ORDER AND JUDGMENT *



Before PORFILIO, ALARCON, ** and LUCERO, Circuit Judges.




         After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The case is therefore

ordered submitted without oral argument.

*
      This order and judgment is not binding precedent, except under the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.
**
     Honorable Arthur L. Alarcon, Senior Circuit Judge, United States Court of
Appeals for the Ninth Circuit, sitting by designation.
      Petitioner Selwyn Andrew Charles, a military prisoner, appeals from the

district court’s judgment denying his petition for writ of habeas corpus, filed

pursuant to 28 U.S.C. § 2241. His original petition raised multiple claims, but his

appeal focuses on a single issue: an alleged ex post facto violation in the

respondent’s application of new military parole provisions to petitioner. The

district court, apparently assuming the existence of an ex post facto violation in

this case in light of Jefferson v. Hart, No. 91-3232-RDR, 1993 WL 302137 (D.

Kan. July 29, 1993), aff’d, 84 F.3d 1314 (10th Cir.), cert. denied, 117 S. Ct. 258

(1996), ruled that petitioner’s claims were moot because he had received

meaningful parole hearings during the pendency of his case. See Jefferson, 84

F.3d at 1317 (meaningful hearing was relief to which petitioner was entitled

following ex post facto violation resulting in denial of timely parole

consideration).

      On appeal, petitioner contends that his claims are not moot. He argues the

district court failed to consider his allegations that 1) the parole hearings were not

adequate, 2) the adjustment of his parole eligibility date (PED) to 1998 is a

continuing ex post facto violation, and 3) Jefferson should be applied to all

similarly situated inmates. He argues that he should be released. We review both

the district court’s denial of petitioner’s habeas petition and its mootness ruling




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de novo. Sinclair v. Henman, 986 F.2d 407, 408 (10th Cir. 1993)(habeas); F.E.R.

v. Valdez, 58 F.3d 1530, 1532-33 (10th Cir. 1995)(mootness).

      On appeal, petitioner contends that his parole hearings were not fair,

adequate or meaningful. Specifically, he states that respondent will not honestly

consider him for parole until he has attended crime-specific rehabilitation classes.

Further, he asserts that those classes are scheduled in light of a prisoner’s PED. 1

Accordingly, he argues, the extension of his PED to 1998 under the new parole

regulations has been, and continues to be, prejudicial to him, despite the parole

hearings he has received. Petitioner has supported his claims and arguments with

documentation and citation to authority.

      Respondent did not address these claims in his original brief on appeal. We

ordered him to respond to these contentions. His supplemental response argues

that 1) the hearings petitioner received were meaningful, 2) petitioner has no right

to specific rehabilitation classes, and 3) petitioner did not exhaust his

administrative remedies on this issue. Petitioner filed a reply brief, countering

respondent’s arguments, and including further documentation regarding the

importance of the crime-specific rehabilitation classes to his chances for parole.




1
      For example, petitioner alleges that because his PED was extended to 1998
under the new parole provisions, he is not scheduled for the crime-specific classes
he needs until 1997.

                                           -3-
      The last two arguments in respondent’s supplemental response are inapt

because they fail to acknowledge the district court’s assumption that an ex post

facto violation exists. The issue before us on appeal is whether the district court

correctly ruled that petitioner’s habeas claims are moot. Mootness means that it

would be impossible to grant petitioner any effective relief on his claims. See In

re Material Witness Warrant Nichols, 77 F.3d 1277, 1279 (10th Cir. 1996).

Petitioner is not asserting new habeas claims that require independent

constitutional bases and administrative exhaustion. His contentions go to the

heart of the district court’s ruling on mootness; they indicate that he may be yet

prejudiced by application of the new parole provisions. The district court

recognized petitioner’s claim regarding the availability of crime-specific classes,

but did not articulate any reasons for rejecting it outside of its recitation of

respondent’s arguments that the claim is speculative. The court simply stated that

petitioner’s claims are moot because he had received the required remedy.

      Respondent contends that petitioner’s parole hearings were meaningful, and

stresses the many factors that may be considered in making a parole

determination. Respondent states that petitioner “has failed to show that he

would have been any more successful had he taken the crime-specific




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rehabilitative class.” 2 Supplemental Answer Br. at 5. This argument misses the

mark; petitioner need not prove he will receive parole. See Miller v. Florida, 482

U.S. 423, 431 (1987)(petitioner need only show he was substantially

disadvantaged as a result of alleged ex post facto violation); Weaver v. Graham,

450 U.S. 24, 33 (1981)(ex post facto inquiry focuses on challenged provision, not

to “special circumstances that may mitigate its effect on the particular

individual”). He only need show that he is being prejudiced by the adjustment of

his PED to 1998 under the new parole provisions to demonstrate that his ex post

facto habeas claims are not moot.

      We conclude petitioner’s argument has facial merit and should have been

more closely considered by the district court. We disagree with the district

court’s characterization of petitioner’s claims as simply disgruntlement with the

outcome of his parole hearings. If petitioner’s access to crime-specific

rehabilitation classes is being delayed because his PED was extended under the

new parole provisions, and if those classes are an important part of the parole

decision, as the documents petitioner has filed with this court suggest, then

petitioner’s claims may not be moot. Cf. California Dep’t of Corrections v.



2
       Respondent also contends that petitioner has not demonstrated improvement
as a result of past rehabilitation classes. Petitioner’s response to this argument
charges respondent with misrepresenting his rehabilitation scores, and alleges that
the scores for the crime-specific classes represent half of his potential score.

                                         -5-
Morales, 115 S. Ct. 1597, 1602 (1995)(rejecting argument that amendment to

state statute violated ex post facto rights where “[t]he amendment had no effect

on the standards for fixing a prisoner’s initial date of ‘eligibility’ for parole, or

for determining his ‘suitability’ for parole and setting his release date”)(citations

omitted). In Jefferson, the district court ruled that the new military parole

provisions “directly delay[ed] parole eligibility,” 1995 WL 302137, at *4, and

concluded that petitioner had established an ex post facto violation. Respondent

cannot accomplish indirectly that which, in its direct form, violates petitioner’s ex

post fact rights. See Weaver, 450 U.S. at 31 (effect, not form, of challenged

provision is focus of ex post facto analysis). Petitioner must have the same

opportunities for parole eligibility as he would have had under the parole

provisions in effect at the time of his offense. See United States v. Paskow, 11

F.3d 873, 879 (9th Cir. 1993)(terms of parole eligibility are fixed at time of

underlying offense and cannot be retrospectively altered). If, as a result of his

adjusted PED, petitioner is being denied the tools he otherwise would have had to

work towards a favorable parole decision, application of the new military parole

provisions may violate the ex post facto clause. See Rodriguez v. United States

Parole Comm’n, 594 F.2d 170, 176 (7th Cir. 1979). Further, under such

circumstances, the availability of annual parole hearings may not be a meaningful




                                           -6-
remedy. Cf. Roller v. Cavanaugh, 984 F.2d 120, 123 (4th Cir. 1993)(“Eligibility

without consideration is a cold comfort.”).

      We express no opinion on the merits of petitioner’s claims. Because we

conclude that the district court failed to recognize the nature and sufficiency of

petitioner’s contentions and erred in summarily dismissing plaintiff’s claims as

moot, we remand this case for further consideration. On remand, the district

court should first consider whether petitioner’s claims, if true, constitute an ex

post facto violation, under Jefferson or otherwise. Cf. Morales, 115 S. Ct. at

1605 (challenged legislation created “only the most speculative and attenuated

risk” of working to petitioner’s detriment). If the court determines that

petitioner’s claims state a possible ex post facto violation, petitioner should be

put to his proof on his factual allegations, see United States v. McCall, 709 F.2d

852, 862 (3d Cir. 1983)(manner in which parole guidelines applied was a question

of fact), and the court should analyze his contentions that the parole hearings he

has had are not an adequate remedy.

      Although we remand on the ex post facto claims, we agree with respondent

that, absent a class action and proper certification, petitioner lacks standing to

bring claims on behalf of other military inmates. See Swoboda v. Dubach, 992

F.2d 286, 290 (10th Cir. 1993). Therefore we reject petitioner’s claim that

Jefferson should be applied to all similarly situated prisoners.


                                          -7-
      Petitioner’s motion to add supplemental authority on appeal is GRANTED;

petitioner’s “Motion for Order” is DENIED. The judgment of the United States

District Court for the District of Kansas denying petitioner’s habeas claims as

moot is REVERSED, and this case is REMANDED for further proceedings as the

district court deems appropriate in light of this order and judgment, petitioner’s

factual allegations, the documentary evidence he has presented in support of his

claims, and the applicable law.

      The mandate shall issue forthwith.



                                                    Entered for the Court



                                                    Arthur L. Alarcon
                                                    Circuit Judge




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