                                                                       FILED
                                                           United States Court of Appeals
                                                                   Tenth Circuit

                                                                   June 25, 2014
                   UNITED STATES COURT OF APPEALS
                                                               Elisabeth A. Shumaker
                                TENTH CIRCUIT                      Clerk of Court



 ANDREW GONZALES,

              Petitioner - Appellant,

 v.                                                     No. 14-2014
                                            (D.C. No. 1:13-CV-00616-LH-KBM)
 JOSEPH GARCIA and GARY KING,                           (D. of N.M.)

              Respondents - Appellees.


                           ORDER AND JUDGMENT *


Before LUCERO, TYMKOVICH, and PHILLIPS, Circuit Judges.


      Andrew Gonzales filed a pro se 1 petition for habeas corpus pursuant to 28

U.S.C. § 2254, challenging his seventh conviction in New Mexico for driving

under the influence of alcohol. Gonzales was discharged from his sentence before

the district court ruled on the petition. The district court subsequently dismissed

his petition as moot because Gonzales was no longer in custody and there was no

possibility of collateral consequences arising from the challenged conviction.


      *
         This order and judgment is not binding precedent except under the
doctrines of law of the case, res judicata and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
      1
        Because Gonzales is proceeding pro se, we construe his filings liberally.
Standifer v. Ledezma, 653 F.3d 1276, 1277 (10th Cir. 2011).
Gonzales sought a certificate of appealability (COA), challenging the denial of

his habeas petition.

      We granted the COA, noting that reasonable jurists could find the district

court erred in denying the petition on mootness grounds. Although a habeas

petitioner who has been discharged from his sentence must demonstrate

continuing collateral consequences for the case to remain justiciable, a felony

conviction carries a presumption of collateral consequences. Spencer v. Kemna,

523 U.S. 1, 7 (1998). The district court erred because the court did not apply the

presumption of collateral consequences arising from Gonzales’s conviction and

mistakenly assumed that the only relevant collateral consequences derived from

the New Mexico DWI statute, N.M. Stat. § 66-08-102, under which Gonzales was

convicted.

      We asked the state to respond. The state now acknowledges that the

district court erred in denying Gonzales’s petition on mootness grounds for

substantially the same reasons we articulated in the order granting a COA.

      This matter is remanded to the district court with instructions to VACATE

the dismissal of Gonzales’s habeas petition and reconsider the petition in light of

the state’s concession.

                                      ENTERED FOR THE COURT,

                                      Timothy M. Tymkovich
                                      Circuit Judge


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