                                                                       F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                                    PUBLISH
                                                                        MAY 19 1998
                 UNITED STATES COURT OF APPEALS
                                                                    PATRICK FISHER
                                                                             Clerk
                              TENTH CIRCUIT




DONALD ARAGON,

            Petitioner-Appellant,

v.                                                    No. 97-2106

JOHN SHANKS,

            Respondent-Appellee.




                  Appeal from the United States District Court
                        for the District of New Mexico
                           (D.C. No. CIV-93-1455)


Submitted on the briefs:

Thomas B. Jameson, Assistant Federal Public Defender, Albuquerque, New
Mexico, for Petitioner-Appellant.

Tom Udall, Attorney General for the State of New Mexico, and Anthony Tupler,
Assistant Attorney General, Santa Fe, New Mexico, for Respondent-Appellee.


Before PORFILIO, LOGAN, and MURPHY, Circuit Judges.


MURPHY, Circuit Judge.
      Donald Aragon filed the instant 28 U.S.C. § 2254 habeas corpus petition in

December 1993, challenging the constitutionality of New Mexico’s application of

certain meritorious and industrial good time credits to Aragon’s term of

incarceration. The district court dismissed the petition with prejudice, concluding

that amended regulations relating to the dispensation of good time credits did not

violate the Ex Post Facto Clause and that New Mexico had applied the good time

credits in a manner consistent with the relevant state statutes. Aragon then moved

this court for a certificate of appealability so that he could raise the issue of good

time credits on appeal. This court granted Aragon a certificate of probable cause 1

on January 28, 1998, and ordered New Mexico to file a responsive brief.

      After the case was ordered submitted, this court issued an order to show

cause why the case should not be dismissed on the ground of mootness. We

issued the order to show cause in response to Aragon’s concession that he is no

longer incarcerated. In light of Aragon’s response to the order to show cause and

a review of the relevant precedent, this court dismisses the appeal as moot.

      A habeas corpus petition is moot when it no longer presents a case or

controversy under Article III, § 2, of the Constitution. See Spencer v. Kemna, 118


      1
        In granting Aragon a certificate of probable cause, this court noted that the
certificate of appealability provisions of the Antiterrorism and Effective Death
Penalty Act of 1996 did not apply to this case because Aragon’s petition was filed
before the effective date of the Act. See United States v. Kunzman, 125 F.3d
1363, 1364 n.2 (10th Cir. 1997).

                                          -2-
S. Ct. 978, 983 (1998). As noted by the Supreme Court, Article III’s “‘case-or-

controversy requirement subsists through all stages of federal judicial

proceedings, trial and appellate . . . . The parties must continue to have a

“personal stake in the outcome” of the lawsuit.’” Id. (quoting Lewis v.

Continental Bank Corp., 494 U.S. 472, 477-78 (1990)). “This means that,

throughout the litigation, the plaintiff ‘must have suffered, or be threatened with,

an actual injury traceable to the defendant and likely to be redressed by a

favorable judicial decision.’” Id. (quoting Lewis, 494 U.S. at 477).

      On April 7, 1988, Aragon was convicted of eleven counts of commercial

burglary, one count of receiving stolen property, and one count of felon in

possession of a firearm. On May 11, 1990, the New Mexico trial court sentenced

Aragon to a term of twenty seven and one-half years. Pursuant to statutory

authority, the trial court suspended ten of the twenty-seven and one-half years

and ordered that Aragon serve a five-year term of probation upon the completion

of his sentence. See N.M. Stat. Ann. §§ 31-20-3, -5 (providing that New Mexico

trial courts can suspend all or part of a term of incarceration and mandating that

court impose a distinct term of probation upon suspension of the term of

incarceration). Accordingly, the ultimate judgment of the trial court was that

Aragon serve a seventeen-and-one-half-year term of imprisonment followed by a

distinct five-year term of probation.


                                          -3-
      In his brief on appeal, Aragon informed the court that he had been released

from custody sometime in 1995. In response to this court’s order to show cause

why this case should not be dismissed as moot, Aragon further informed the court

that he is now serving his mandatory term of probation 2 and asserted, without

citation to relevant New Mexico case law or statute, that a favorable decision

from this court would “reduce his term of probation.” 3

      Our review of the relevant New Mexico statutes reveals that because

Aragon is now serving his mandatory term of probation, his term of incarceration

must necessarily be complete. See N.M. Stat. Ann. § 31-20-5 (providing that an

inmate’s mandatory post-incarceration term of probation begins to run only upon

the completion of the term of imprisonment and any period of parole). Because

Aragon’s period of incarceration is complete, this case is moot unless a favorable

decision from this court would shorten the period of his probation. 4


      2
       In support of this assertion, Aragon attached to his response to the order to
show cause a letter from his probation officer attesting to the fact that Aragon is
currently serving the probationary term imposed by the state trial court in May of
1990.

      Unfortunately, New Mexico did not accept this court’s invitation to
      3

respond to the order to show cause.
      4
        In framing the inquiry in this fashion, we note the very limited nature of
the challenge presented in Aragon’s § 2254 habeas petition. Aragon’s challenge
is limited to the duration of his term of incarceration; he raises no challenge to
the fact of his incarceration. If Aragon were challenging the fact of his
incarceration, the case would not be moot because a successful challenge would
                                                                        (continued...)

                                         -4-
      Unfortunately, Aragon has not cited and this court has not discovered any

cases which stand for the proposition that the length of a mandatory term of

probation could in any way be affected by a retroactive application of good time

credits. Instead, Aragon points to several cases for the proposition that generally

a habeas corpus petition is not moot if the petitioner is on parole, implying sub

silentio that this court should treat his case similarly. The cases cited by Aragon

are, however, clearly inapposite. We recognize that a habeas petition challenging

the application of New Mexico good time credits is not moot if the petitioner is

on parole. Under New Mexico law, a parolee is considered to be in the custody of

the institution from which he was released and is, in essence, serving the

remainder of his sentence outside of the prison walls as a matter of grace or

mercy. See N.M. Stat. Ann. § 31-21-10(D); Conston v. New Mexico State Bd. of

Probation & Parole, 444 P.2d 296, 298 (N.M. 1968) (construing analogous prior

version of New Mexico law). Thus, credits that could affect the length of a

petitioner’s sentence would also necessarily affect the length of any concomitant

parole. See Brooks v. Shanks, 885 P.2d 637, 639 & n.2 (N.M 1994) (holding that



      4
        (...continued)
affect the fact of both his incarceration and probation. Aragon’s challenge,
however, is limited to New Mexico’s application of good time credits to the
duration of his term of incarceration. Accordingly, his appeal is moot unless a
decision in his favor on this narrow issue would affect the duration of his distinct
probationary period.

                                         -5-
habeas petition was not moot because award of good time credits would shorten

petitioner’s parole). As noted above, however, Aragon is on probation rather than

parole, two distinct animals under New Mexico law. A probationary term is

statutorily distinct from the term of incarceration, is served at the conclusion of

the term of incarceration and any parole, is subject to the control of the

sentencing court rather than the parole board, and, based on our reading of the

relevant statutes, is not subject to the statutory provisions governing the

application of good time credits to terms of incarceration.

      Because Aragon has completed his term of incarceration and because he has

failed to identify, and this court has been unable to find, any support for his

assertion that a favorable ruling on the merits would affect the length of his

separate and distinct probationary period, this appeal is moot. See Kemna, 118

S. Ct. at 983. The appeal is hereby DISMISSED.




                                          -6-
