                                                                          F I L E D
                                                                   United States Court of Appeals
                                                                           Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                          AUG 21 2000
                            FOR THE TENTH CIRCUIT
                                                                      PATRICK FISHER
                                                                                 Clerk

    THOMAS C. CRAWFORD,

                Petitioner-Appellant,

    v.                                                   No. 99-3121
                                                   (D.C. No. 98-3141-RDR)
    J.W. BOOKER, JR.,                                     (D. Kan.)

                Respondent-Appellee.


                            ORDER AND JUDGMENT            *




Before BRORBY , ANDERSON , and MURPHY , 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)(2); 10th Cir. R. 34.1(G). 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      This order and judgment is not binding precedent, except under the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.
       Petitioner Thomas C. Crawford appeals the district court’s denial of his

28 U.S.C. § 2241 habeas petition.    1
                                         Because the appeal is moot we lack

jurisdiction to consider the merits of his petition and dismiss.

       As a threshold matter, we must determine whether we have jurisdiction to

consider Mr. Crawford’s appeal.       See United States v. Meyers , 200 F.3d 715, 718

(10th Cir. 2000).     “Article III of the United States Constitution only extends

federal judicial power to cases or controversies.”        Id. (citing U.S. Const. Art. III,

§ 2, cl. 1). “An appellant seeking relief ‘must have suffered, or be threatened

with, an actual injury traceable to the [appellee] and likely to be redressed by

a favorable judicial decision [by the appeals court].’”       Id. (quoting Lewis v.

Continental Bank Corp. , 494 U.S. 472, 477 (1990) (alterations in         Meyers )). The

power to grant a writ of habeas corpus under § 2241 is dependent on the prisoner

being in “custody.”     28 U.S.C. § 2241(c);     see also Meyers , 200 F.3d at 718

(explaining that “ongoing incarceration constitutes an injury from which the

defendant seeks relief in satisfaction of Article III”).

       Mr. Crawford was released from custody shortly before this appeal.

Despite his release, however, Mr. Crawford’s petition is not moot if he is able to



1
       Because he is a federal prisoner proceeding under § 2241, Mr. Crawford
does not have to obtain a certificate of appealability under the Antiterrorism and
Effective Death Penalty Act of 1996.    See Montez v. McKinna , 208 F.3d 862, 867
(10th Cir. 2000).

                                               -2-
demonstrate “collateral consequences adequate to meet Article III’s injury-in-fact

requirement.” Spencer v. Kemna , 523 U.S. 1, 14 (1998). Because

Mr. Crawford’s habeas petition attacks the execution of his sentence, rather than

the underlying criminal conviction, collateral consequences are generally not

presumed. See id. at 12-14 (considering challenge to parole revocation, refusing

to presume collateral consequences, and finding none).

       Mr. Crawford argues that his appeal is not moot since he is presently

serving a three-year term of supervised release, which he asserts could be reduced

to reflect an earlier prison release date. In support, he cites two cases,        Sesler v.

Pitzer , 110 F.3d 569 (8th Cir. 1997), and     Aycox v. Lytle , 196 F.3d 1174

(10th Cir. 1999). In Sesler , the Eight Circuit found the § 2241 appeal was not

moot “because, if Sesler’s term of imprisonment had been reduced by one year,

his supervised release would have commenced one year earlier.”               Sesler , 110 F.3d

at 571. In Aycox , this court addressed a § 2254 habeas petition in which the

petitioner had been released from custody on his New Mexico state sentence, but

was still serving concurrent two year terms of probation and parole.            See Aycox ,

196 F.3d at 1176-77 n.2. This court found that Aycox’s appeal was not moot

because his period of parole could be affected by a decreased sentence.            See id.

In light of the Supreme Court’s recent decision in       United States v. Johnson ,

120 S. Ct. 1114 (2000), however, neither       Sesler nor Aycox control our decision.


                                              -3-
       In Johnson , the Court considered whether a term of supervised release can

be decreased to reflect the excess amount of time spent in prison on a sentence,

an issue on which the circuits had split.     Johnson was serving a sentence for

a number of felony convictions when two of his convictions were vacated. He

was released from prison, but had already served more prison time than warranted

under his amended sentence. He then sought to reduce his period of supervised

release to correspond with the excess prison time served. Interpreting 18 U.S.C.

§ 3624(e), the controlling statute, the Court concluded that “[t]he statute, by its

own necessary operation, does not reduce the length of a supervised release term

by reason of excess time served in prison.”         Johnson , 120 S. Ct. at 1119; see also

§ 3624(e) (stating in relevant part that “[t]he term of supervised release

commences on the day the person is released from imprisonment” and “[a] term of

supervised release does not run during any period in which the person is

imprisoned . . . unless the imprisonment is for a period of less than 30

consecutive days”). In addition to examining the language of the statute, the

Court considered the rationale underlying supervised release.          See Johnson , 120 S.

Ct. at 1118 (explaining that “Congress intended supervised release to assist

individuals in their transition to community life” and that “[s]upervised release

fulfills rehabilitative ends, distinct from those served by incarceration”).




                                              -4-
       Based on Johnson , even if Mr. Crawford’s legal argument was successful,

this court could not shorten the length of his supervised release term.    See Aragon

v. Shanks , 144 F.3d 690, 692 (10th Cir.)    (explaining in context of § 2254 petition

that, because the petitioner’s incarceration was completed, the case was “moot

unless a favorable decision from this court would shorten the period of his

probation”) (footnote omitted),    cert. denied , 119 S. Ct. 518 (1998). In addition,

Mr. Crawford has not come forward with any other collateral consequences to

defeat mootness. Accordingly, this court lacks jurisdiction over his appeal.

       For the foregoing reasons, the appeal is DISMISSED.



                                                         Entered for the Court



                                                         Wade Brorby
                                                         Circuit Judge




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