                                                                           FILED
                                                               United States Court of Appeals
                                                                       Tenth Circuit

                                                                      October 1, 2009
                      UNITED STATES COURT OF APPEALS
                                                   Elisabeth A. Shumaker
                                                                        Clerk of Court
                                    TENTH CIRCUIT


 GREGORY GOODLOE,

          Petitioner - Appellant,

 v.                                                        No. 09-1017
                                                            (D. Colo)
 UNITED STATES PAROLE                         (D.Ct. No.1:06-CV-00212-CMA-BNB)
 COMMISSION; GARY K.
 WATKINS,

          Respondents - Appellees.


                             ORDER AND JUDGMENT *


Before HARTZ, McKAY, and O’BRIEN, 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. The case is therefore

ordered submitted without oral argument.




      *
         This order and judgment is not binding precedent. 10th Cir. R. 32.1(A). Citation
to orders and judgments is not prohibited. Fed. R. App. 32.1. But it is discouraged,
except when related to law of the case, issue preclusion or claim preclusion. Any citation
to an order and judgment must be accompanied by an appropriate parenthetical notation –
(unpublished). 10th Cir. R. 32.1(A).
      Gregory Goodloe, a former federal prisoner appearing pro se, 1 appeals from

the district court’s dismissal of his 28 U.S.C. § 2241 petition for writ of habeas

corpus. The district court concluded Goodloe failed to exhaust administrative

remedies and dismissed his petition. Because Goodloe has been mandatorily

released from federal custody pursuant to 18 U.S.C. § 4163, we conclude this

appeal is moot.

                                 I. BACKGROUND

      In 1986, Goodloe was convicted in federal court of rape and sodomy. He

was sentenced to twenty years imprisonment for rape and a concurrent term of

five years for sodomy. The conviction was affirmed on direct appeal. See United

States v. Goodloe, 804 F.2d 678 (table), No. 86-5017, 1986 WL 17956 (4th Cir.

Nov. 6, 1986). Goodloe was paroled on May 22, 1993. 2 His parole was revoked

in July 1995. He was paroled again on August 3, 1995. That parole was revoked

in October 1996. He was paroled for a third time on April 13, 1998.



      1
        We liberally construe Goodloe’s pro se filings. See Ledbetter v. City of Topeka,
Kan., 318 F.3d 1183, 1187 (10th Cir. 2003).
      2
         Before November 1, 1987, the terms of federal sentences were governed by the
Parole Commission and Reorganization Act of 1976 (PCRA), Pub. L. No. 94-233, 90
Stat. 219-231 (codified as amended at 18 U.S.C. §§ 4201-4218 (1982)). See Bledsoe v.
United States, 384 F.3d 1232, 1233 (10th Cir. 2004). On November 1, 1987, the
Sentencing Reform Act of 1984 (SRA), Pub. L. No. 98-473, 98 Stat. 1987 (1984),
became effective, repealing and replacing the PCRA. See id. “Under the SRA, parole
was to be abolished, the Parole Commission was to be phased out, and prisoners were to
serve uniform sentences under sentencing guidelines.” Id.

                                           -2-
      On October 18, 2002, the United States Parole Commission issued a

warrant based on Goodloe’s failure to report a change of address. Goodloe

surrendered on November 12, 2002. On December 6, 2002, the Parole

Commission supplemented the warrant with a new administrative violation. On

February 24, 2003, the Commission again supplemented the warrant based on a

state court complaint charging Goodloe with fifteen counts of sexual assault on a

child, fifteen counts of sexual assault on a child by one in a position of trust and

fifteen counts of aggravated incest.

      On May 13, 2003, a parole revocation hearing was held. The hearing

examiner determined Goodloe committed the offense of sexual assault on a child.

He recommended Goodloe serve only the time remaining on his sentence.

(Respondent’s Answer to Order Show Cause at 9.) The Parole Commission

concurred with the hearing examiner and Goodloe received a Notice of Action

dated May 29, 2003, advising him of the decision. Goodloe received credit for

the time he was on parole (“street time”) and was ordered to continue

incarceration to the expiration of his sentence, which was believed to be on or

about June 3, 2005.

      The Notice of Action informed Goodloe the revocation was appealable to

the National Appeals Board pursuant to 28 C.F.R. § 2.26. It stated Goodloe could

obtain appeal forms from his caseworker or supervising officer and the forms

must be filed with the Parole Commission within thirty days of the date the

                                          -3-
Notice of Action was sent. Goodloe did not file an appeal.

      On February 19, 2004, Goodloe pled guilty to criminal attempt to commit

sexual assault on a child in state court and was sentenced to six years

imprisonment to run concurrent with his federal sentence. Based on this plea, the

Parole Commission issued a Notice of Action on February 16, 2005, reopening

Goodloe’s case and scheduling a special reconsideration hearing for February 28,

2006, to address forfeiture of the “street time” that had previously been credited

towards his sentence. The Notice of Action stated the decision was not

appealable. (Id. at 143.)

      On February 7, 2006, Goodloe filed an application for writ of habeas

corpus pursuant to 28 U.S.C. § 2241 arguing: (1) the Parole Commission violated

his right to due process by conducting a parole revocation hearing on May 13,

2003, and considering a criminal charge for which Goodloe had not been formally

charged in state court; (2) the Parole Commission violated his right to equal

protection; and (3) the Parole Commission’s decision to consider revocation of his

parole was based on inaccurate information. 3 Goodloe sought to enjoin the

hearing scheduled for February 28, 2006.

      The district court took no action on Goodloe’s request for an injunction and

the hearing proceeded on February 28, 2006. Goodloe refused to participate in



      3
          Goodloe filed an amended application on February 17, 2006.

                                           -4-
the hearing. The hearing examiner recommended “[n]one of the time [Goodloe]

spent on parole shall be credited from the date of his release (4/13/98) to the date

the warrant was executed (11/12/2002).” (R. Vol. I at 146.) He further

recommended Goodloe remain incarcerated until the expiration of his sentence.

The Parole Commission concurred with the recommendation. The Notice of

Action, dated March 13, 2006, stated the decision was not appealable.

      The Parole Commission filed an answer to Goodloe’s § 2241 petition. It

argued the petition should be dismissed for failure to exhaust administrative

remedies but also addressed the merits of Goodloe’s claims. The Commission

recognized that because Goodloe sought to enjoin a hearing that had already taken

place, “Goodloe presumably wants some relief in the nature of being completely

released from federal parole.” (R. Vol. I at 52.) The Commission interpreted

Goodloe’s third claim for relief as addressing the February 16, 2005 Notice of

Action. It argued it “acted lawfully in reopening Goodloe’s case to conduct a

reconsideration hearing.” (Id. at 66.) It claimed “a parolee who has been

convicted of a crime automatically forfeits the time he spent on parole [street

time].” (Id. at 67.)

      The magistrate judge interpreted all of Goodloe’s claims as challenging the

May 2003 parole revocation. He recommended Goodloe’s petition be dismissed

with prejudice for failure to exhaust administrative remedies because he did not

appeal the May 2003 revocation to the National Appeals Board. The magistrate

                                         -5-
judge determined Goodloe’s claims were procedurally barred because of his

failure to exhaust and he neither demonstrated cause and prejudice for the default

nor argued the court’s failure to consider the claims would result in a miscarriage

of justice. Goodloe submitted written objections to the magistrate’s

recommendation specifically referencing the February 28, 2006 hearing. The

district court adopted the magistrate judge’s recommendation and dismissed

Goodloe’s petition for failure to exhaust administrative remedies.

      Goodloe filed a motion for a certificate of appealability (COA), which the

district court denied. 4 The district court also denied Goodloe’s motion for leave

to proceed in forma pauperis (ifp) finding the appeal “is not taken in good faith

because [Goodloe] has not shown the existence of a reasoned, nonfrivolous

argument on the law and facts in support of the issues raised on appeal.” (R. Vol.

I at 189). Goodloe filed a request to proceed ifp with this Court. On May 13,

2009, we issued an order denying Goodloe’s request to proceed ifp. Goodloe paid

the filing fee in full on June 8, 2009.

      On July 20, 2009, we issued an Order requesting an answer brief from the

Appellees and permitting Goodloe to file a reply brief. We stated:



      4
         The district court’s order denying Goodloe’s motion for a COA mistakenly refers
to the underlying action as involving 28 U.S.C § 2254. A federal prisoner proceeding
under 28 U.S.C. § 2241 is not required to obtain a COA to appeal from a district court’s
denial of his petition. See McIntosh v. United States Parole Comm’n, 115 F.3d 809, 810
n.1 (10th Cir. 1997).

                                          -6-
      It appears Goodloe has fully served and been released from his
      federal sentence. All parties are invited to address whether this
      appeal is moot. See Garlotte v. Fordice, 515 U.S. 39 (1995); Aycox
      v. Lytle, 196 F.3d 1174, 1176 n.2 (10th Cir. 1999); see also DeFoy v.
      McCullough, 393 F.3d 439, 442 (3d Cir. 2005). Appellees may do so
      in their response brief and Goodloe may do so in his reply brief.

(No. 09-1017 (10th Cir. July 20, 2009)).

                                 II. DISCUSSION

      Prior to seeking relief under § 2241, a federal prisoner must exhaust

administrative remedies. See Williams v. O’Brien, 792 F.2d 986, 987 (10th Cir.

1986); see also Dulworth v. Evans, 442 F.3d 1265, 1268-69 (10th Cir. 2006)

(“[T]he general requirement that a petitioner under § 2241 must exhaust available

state remedies . . . extends to the exhaustion of administrative remedies as

well.”). The district court dismissed Goodloe’s petition because it determined he

failed to exhaust administrative remedies, interpreting all of his claims as

challenging the May 2003 parole revocation.

      Goodloe’s third claim for relief appears to challenge the February 16, 2005

Notice of Action, which stated a special reconsideration hearing would be

scheduled to address forfeiture of the time Goodloe spent on parole—his “street

time.” 5 The February 16, 2005 Notice of Action was not appealable; nor was the

March 13, 2006 Notice of Action, which contained the Parole Commission’s



      5
        Notably, even the Parole Commission did not argue Goodloe failed to exhaust
administrative remedies as to his third claim for relief.

                                           -7-
decision resulting from the special reconsideration hearing. Thus, it appears

Goodloe did not fail to exhaust his administrative remedies as to his third claim

for relief.

       Before considering the merits of Goodloe’s appeal, however, we must

determine whether this appeal is moot. See Green v. Haskell County Bd. of

Comm’rs, 568 F.3d 784, 794 (10th Cir. 2009) (recognizing mootness as “a

threshold inquiry”). Federal courts are authorized to review only actual cases or

controversies. U.S. Const. art. III, § 2, cl. 1. Consequently, “an actual

controversy must be extant at all stages of review, not merely at the time the

complaint is filed.” Arizonans for Official English v. Ariz., 520 U.S. 43, 67

(1997) (quotations omitted). “If, during the pendency of the case, circumstances

change such that [a party’s] legally cognizable interest in a case is extinguished,

the case is moot, and dismissal may be required.” Green, 568 F.3d at 794

(quotations omitted).

       Goodloe was released from federal custody on July 8, 2005. At the time he

filed his application for writ of habeas corpus (February 7, 2006), he was

incarcerated with the Colorado Department of Corrections and was on parole for

the federal offense. In his habeas application, he stated he sought to enjoin the

hearing scheduled for February 28, 2006. That hearing took place

notwithstanding Goodloe’s request. On August 6, 2008, Goodloe was

mandatorily released based on his good time credits even though his full term

                                         -8-
does not expire until April 4, 2011. See 18 U.S.C. § 4163 (“[A] prisoner shall be

released at the expiration of his term of sentence less the time deducted for good

conduct.”). Thus, he is deemed released on parole until October 6, 2010. 6 See 18

U.S.C. § 4164 (“A prisoner having served his term . . . less good-time deductions

shall, upon release, be deemed as if released on parole until the expiration of the

maximum term . . . for which he was sentenced less one hundred and eighty

days.”). On appeal, Goodloe does not challenge his underlying conviction;

instead, he argues his sentence should have “expired [on] March 3, 2006 less 180

Days.” (Appellant’s Opening Br. at 4.) The only question remaining is whether

Goodloe’s mandatory release renders his appeal moot.

      “When an incarcerated criminal defendant appeals his conviction, the

ongoing incarceration constitutes an injury from which the defendant seeks relief

in satisfaction of Article III.” United States v. Meyers, 200 F.3d 715, 718 (10th

Cir. 2000). If the defendant completes his sentence prior to the appellate court

decision, we will presume that sufficient collateral consequences follow the

underlying judgment and the completed sentence to satisfy Article III. See id.

That presumption does not apply, however, where a petitioner is appealing from a

parole revocation. In Spencer v. Kemna, the Supreme Court “decline[d] to


      6
        It appears Goodloe may be released from state custody on June 5, 2010. He will
not be subject to further action by the Parole Commission unless he “get[s] into trouble
again (presumably due to his own volitional actions).” (Appellee’s Supp. Statement of
Apparent Factual Error in Appellee’s Answer Br. at 2.)

                                           -9-
presume that collateral consequences adequate to meet Article III’s injury-in-fact

requirement resulted from petitioner’s parole revocation.” 7 523 U.S. 1, 14 (1998).

“[T]he [Spencer] Court held that when a defendant challenges a parole revocation

but has completed the sentence imposed upon revocation, the defendant bears the

burden of demonstrating the existence of actual collateral consequences resulting

from the revocation.” 8 Meyers, 200 F.3d at 719.

       Goodloe has not met this burden. 9 In his reply brief, he states he


       7
         Spencer did not involve a pre-guidelines sentence. However, Spencer’s holding
has been applied to cases arising under the pre-guidelines sentencing regime. See, e.g.,
Fletcher v. United States Parole Comm’n, 550 F. Supp. 2d 30, 44 (D.C. Cir. 2008)
(stating “[the] conclusion is inescapable under Spencer” that petitioner’s case seeking a
writ of habeas corpus relating to his 1978 rape conviction is moot because he has already
obtained his objective of securing release on reparole).
       8
         In arriving at its decision in Spencer, the Supreme Court built upon its decision in
Lane v. Williams, 455 U.S. 624 (1982). See Meyers, 200 F.3d at 719. In Lane, the Court
held where an appellant elects to attack only his sentence and that sentence expires during
the course of the proceedings, the appeal is moot. 455 U.S. at 631. In Vandenberg v.
Rodgers, an appellant sought to appeal from the dismissal of his habeas corpus petition
claiming his parole date was wrongly delayed arguing, inter alia, “he should have
received good-time credits towards an early parole.” 801 F.2d 377, 377 (10th Cir. 1986).
We held the appeal was moot because the appellant “is not attacking his underlying
conviction” and “[was] already released from custody on parole.” Id. at 378. Similarly,
in Johnson v. Riveland, we held an appellant’s challenge to the denial of credit against the
minimum term of his sentence (which determined his initial parole date) was moot
because he had already been granted parole. 855 F.2d 1477, 1480 (10th Cir. 1988). We
noted the appellant “[was] not challenging his convictions or sentence, but only the way
that his minimum sentence was computed.” Id. at 1481. Even without considering
possible collateral consequences, these cases suggest Goodloe’s case is moot because he
is challenging only his sentence, which he claims should have expired earlier than it did.
       9
      Though the burden was on Goodloe, not the government, the Parole
Commission’s brief is disappointing. The Commission does not discuss any of the cases

                                            -10-
“BELIEVES THAT COLLATERAL CONSEQUENCES AN EXCEPTION TO

THE MOOTNESS DOCTRINE SHOULD APPLY TO HIS HABEAS CORPUS

PETITION.” (Appellant’s Reply Br. at 2.) He does not particularize this claim.

He cites a number of cases which set forth the parameters of the collateral

consequences exception but does not specifically state what collateral

consequences he faces. The fact his parole may again be revoked if he violates

the law upon his release from state confinement “does not constitute a sufficient

collateral consequence to defeat mootness.” See Meyers, 200 F.3d at 722;

Spencer, 523 U.S. at 15-16. Goodloe also claims his state conviction is “an

illegal sentence” but, even if true, that would not be a collateral consequence of

the allegedly wrongful revocation of his federal parole. (Appellant’s Reply Br. at

2.)

      Additionally, Goodloe argues his case presents a situation that is capable of

repetition yet evading review, an exception to the mootness doctrine which

“applies only in exceptional circumstances.” Spencer, 523 U.S. at 17 (quotations

omitted). This exception will rescue a moot controversy only if: “(1) the

challenged action is in its duration too short to be fully litigated prior to cessation

or expiration, and (2) there is a reasonable expectation that the same complaining



we referenced in our Order requesting supplemental briefing. It simply asserts Goodloe’s
case is moot because he “cannot be given anything of legal substance.” (Appellee’s Br. at
8.) While the Commission cannot be expected to respond to every possible argument, its
conclusory argument is of little aid.

                                          -11-
party will be subject to the same action again.” 10 Id. (quotations omitted). The

present case satisfies neither of these conditions. Like the petitioner in Spencer,

Goodloe “has not shown . . . that the time between parole revocation and

expiration of sentence is always too short as to evade review. Nor has he

demonstrated a reasonable likelihood that he will once again be paroled and have

the parole revoked.” See id. at 18.

       DISMISSED.

                                         Entered by the Court:

                                         Terrence L. O’Brien
                                         United States Circuit Judge




       10
         “The classic modern application of the capable-of-repetition exception is in an
abortion case, such as Roe v. Wade [410 U.S. 113 (1973)].” Matthew I. Hall, The
Partially Prudential Doctrine of Mootness, 77 GEO. WASH. L. REV. 562, 579 (April
2009).
       A plaintiff’s challenge to a restriction on her right to obtain an abortion is
       inherently short-lived, and will always be rendered moot by events—either
       by birth or by termination of the pregnancy—prior to completion of
       appellate review. Thus, unless an exception were applied, the conventional
       doctrine would require that a court dismiss the case as moot.

Id. (footnotes omitted).

                                           -12-
