                                                                             FILED
                                                                 United States Court of Appeals
                                                                         Tenth Circuit

                                      PUBLISH                            July 27, 2011

                                                                     Elisabeth A. Shumaker
                       UNITED STATES COURT OF APPEALS                    Clerk of Court
                                  TENTH CIRCUIT



 DAVID THOMAS RHODES,

          Petitioner–Appellant,

 v.
                                                          No. 10-2268
 DAN JUDISCAK, Regional Vice
 President, Dismas Charities, Inc.,

          Respondent–Appellee.



                      Appeal from the United States District Court
                            for the District of New Mexico
                         (D.C. No. 2:10-CV-00501-JCH-RHS)


Submitted on the briefs:*

Petitioner–Appellant David Thomas Rhodes, Hobbs, New Mexico, Pro Se.

Andrea W. Hattan, Assistant U.S. Attorney (Kenneth J. Gonzales, U.S. Attorney with her
on the briefs), Las Cruces, New Mexico, for Respondent–Appellee.


Before LUCERO, EBEL, and GORSUCH, Circuit Judges.



      *
        The case is unanimously ordered submitted without oral argument pursuant to
Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G).
LUCERO, Circuit Judge.


       David Thomas Rhodes appeals the district court’s order dismissing his 28 U.S.C.

§ 2241 petition as moot.1 Rhodes’ petition challenges only the length of his prison

sentence. But he concedes he is no longer in prison. Although he remains subject to a

long term of supervised release, this court cannot issue a judgment on his § 2241 petition

that will shorten his supervised release term. Exercising jurisdiction under 28 U.S.C.

§ 1291, and reviewing de novo, see Faustin v. City & County of Denver, 268 F.3d 942,

947 (10th Cir. 2001), we affirm.

                                             I

       Rhodes was convicted on drug-related charges in 1993, and sentenced to twenty

years’ imprisonment and ten years’ supervised release. He filed this § 2241 petition in

2010, challenging the Federal Bureau of Prisons’ calculation of his sentence. After

discovering that Rhodes was no longer in prison, the district court ordered him to show

cause why his § 2241 petition should not be dismissed as moot. Rhodes conceded that he

was no longer incarcerated, but claimed he could still challenge his sentence. He argued

that, had his sentence been shorter, he would have started his term of supervised release

earlier, and was consequently “suffering from collateral consequences from conviction

       1
         We liberally construe Rhodes’ pleadings because he proceeds pro se. See Hall v.
Bellmon, 935 F.2d 1106, 1110 (10th Cir. 1991). But this pro se petition does not demand
solicitous reading. Rhodes understands the law, writes exceptionally clearly, and has
advanced his federal habeas claims in a thoroughly lawyerly manner.

                                           -2-
adequate to meet Article III’s injury in fact requirement.” The district court dismissed

the petition as moot, concluding that even if Rhodes’ argument were correct, the court

had no authority to shorten the length of his supervised release.

                                             II

       Federal judicial power is limited by the Constitution to “Cases” and

“Controversies,” U.S. Const. art. III, § 2, and the case-or-controversy limitation

underpins both standing and mootness jurisprudence. Friends of the Earth v. Laidlaw

Envtl. Servs., 528 U.S. 167, 180 (2000). Thus a case is moot unless, among other things,

a plaintiff has “suffered some actual injury that can be redressed by a favorable judicial

decision.” Iron Arrow Honor Soc’y v. Heckler, 464 U.S. 67, 70 (1983).

       Rhodes has been released from prison. That does not necessarily moot his habeas

petition. See, e.g., Carafas v. LaVallee, 391 U.S. 234, 237-38 (1968). Insofar as an ex-

prisoner continues to suffer “collateral consequences” from a conviction, his habeas

corpus challenge to that conviction is not moot—the habeas petitioner retains “a

substantial stake in the judgment of conviction which survives the satisfaction of the

sentence imposed on him.” Id. at 237 (quotation omitted). Being on supervised release

can amount to a collateral consequence, “because the defendant’s liberty is affected by

ongoing obligations to comply with supervised release conditions and restrictions.”

United States v. Vera-Flores, 496 F.3d 1177, 1180 (10th Cir. 2007). Thus, “a defendant

who has served his term of imprisonment but is still serving a term of supervised release

may challenge his sentence if his unexpired term of supervised release could be reduced

                                            -3-
or eliminated by a favorable appellate ruling.” Id.

       Rhodes relies on this very argument in his attempt to defeat mootness. But

Rhodes’ release from prison is not the problem with his § 2241 petition. The question is

not whether the petition, which challenges only the calculation of Rhodes’ prison

sentence, asserts a collateral consequence, but whether it asserts a redressable collateral

consequence.

                                                A

       To the extent that Rhodes’ challenge to his prison sentence asks for a shorter term

of imprisonment, it is obviously moot now that he has been released from prison. But

Rhodes advances a different argument for relief—that a favorable decision on his § 2241

petition might bolster his eventual request for shortened supervised release under 18

U.S.C. § 3583(e)(1).

       Section 3583(e)(1) gives a federal district court the authority to “terminate a term

of supervised release and discharge the defendant released at any time after the expiration

of one year of supervised release . . . if [the court] is satisfied that such action is

warranted by the conduct of the defendant released and the interest of justice.” Whether

to grant a motion to terminate a term of supervised release under § 3583(e)(1) is a matter

of district court discretion. See United States v. Lowe, 632 F.3d 996, 998 (7th Cir. 2011).

       In his § 2241 petition, Rhodes argues only that his sentence was improperly

calculated. Even if that assertion is correct, United States Supreme Court precedent

clearly prohibits us from modifying a supervised release term to make up for a too-long

                                              -4-
prison sentence. See United States v. Johnson, 529 U.S. 53, 59 (2000); Crawford v.

Booker, 2000 WL 1179782, at *2 (10th Cir. Aug. 21, 2000) (unpublished). Nevertheless,

the argument goes, although we cannot directly shorten Rhodes’ term of supervised

release, we can give him ammunition for his eventual § 3583(e)(1) petition by

proclaiming that he was in prison longer than he should have been.

       As it turns out, our sister circuits are split on whether such an argument defeats

mootness.

                                              B

       In Johnson v. Pettiford, which involved a § 2241 petitioner in the same situation as

Rhodes, the Fifth Circuit explained (without further analysis) that “the possibility that the

district court may alter [the petitioner’s] period of supervised release pursuant to

[§ 3583(e)(1)], if it determines that he has served excess prison time, prevents [the]

petition from being moot.” 442 F.3d 917, 918 (5th Cir. 2006) (per curiam). Similarly, in

Reynolds v. Thomas, the Ninth Circuit held (also without analysis) that an allegation of

“over-incarceration” presented in a § 2241 petition was not moot because a district court

“could consider [the excess prison time] under [§ 3583(e)(1)] as a factor weighing in

favor of reducing the term of supervised release.” 603 F.3d 1144, 1148 (9th Cir. 2010).

And in Cleckler v. United States, the Eleventh Circuit was even more laconic, resolving

the matter with the statement that the petitioner’s federal habeas claim “is not moot

because he is still serving his supervised release term and that term could change if he

prevailed on appeal,” 410 F. App’x 279, 283 (11th Cir. 2011) (unpublished), while

                                            -5-
declining to explain just how the supervised release term could be modified in light of

Johnson, 529 U.S. at 59.

       An opposite conclusion was reached by the Third Circuit in Burkey v. Marberry,

556 F.3d 142, 144-45 (3d Cir. 2009). The panel explained that whether a particular

collateral consequence is sufficient to defeat mootness turns on “the likelihood that a

favorable decision would redress the injury or wrong.” Id. at 148 (citing Spencer v.

Kemna, 523 U.S. 1, 14-16 (1998)) (quotation omitted). By analogy to Spencer, in which

“the Court rejected numerous collateral consequences proffered by the petitioner because

they were no more than ‘a possibility rather than a certainty or even a probability,’ or

pure speculation,” the Third Circuit dismissed the § 2241 petition as moot because “[t]he

‘likely’ outcome here is not that the District Court’s order will cause the sentencing court

. . . to reduce [the petitioner’s] term of supervised release.” Burkey, 556 F.3d at 148.

Instead, to get the relief he wanted, the petitioner would have to file a § 3583(e)(1)

motion in his sentencing court, a motion which the sentencing court had broad discretion

to grant or deny. Burkey, 556 F.3d at 148-49. “The possibility that the sentencing court

will use its discretion to modify the length of [the] term of supervised release under [§]

3583(e) . . . is so speculative that any decision on the merits [of the § 2241 petitioner’s

challenge to his sentence] by the District Court would be merely advisory and not in

keeping with Article III’s restriction of power.” Burkey, 556 F.3d at 149.

       In an unpublished decision, the District of Columbia Circuit recently followed

Burkey. See United States v. Bundy, 391 F. App’x 886, 887 (D.C. Cir. 2010)

                                             -6-
(unpublished) (“The prospect that our resolution of the [§ 2241 petitioner’s] instant

appeal [challenging his sentence] will influence the district court to exercise its discretion

to terminate [his] supervised release under § 3583(e)(1) is so speculative that any

decision on the merits would be merely advisory. . . .” (quotation omitted)).

                                               C

       We agree with the result suggested by the Third and District of Columbia Circuits,

that Rhodes’ § 2241 petition does not assert a redressable injury. But we base our

conclusion on a somewhat different rationale.

       In this case, whether Rhodes’ eventual success in a § 3583(e)(1) petition is

“likely” or “speculative” is immaterial. What matters is that the injury he complains of

(his excessive sentence) is not redressable because neither this court nor the district court

below can issue a judgment that would remedy the harm he allegedly suffered. An issue

is moot if it is “impossible for the court to grant any effectual relief whatsoever . . . to a

prevailing party.” United States v. Hahn, 359 F.3d 1315, 1323 (10th Cir. 2004)

(quotation omitted); see also Iron Arrow Honor Soc’y, 464 U.S. at 70 (if a favorable

decision cannot redress any complained-of injury, a case is moot).

       It is on redressability that Rhodes’ § 2241 petition fails. He challenges only the

length of his prison sentence. We cannot modify that sentence now that it has been

completed. And we are not allowed to give him a judicial make-up call by shortening his

supervised release term. See Johnson, 529 U.S. at 59. Accordingly, the best this court

could do for him would be to declare that he spent longer in prison than he should have.

                                              -7-
That is, all we could do is enter an advisory opinion. That is not enough to satisfy Article

III.

       Rhodes has not asked a district court to reduce his term of supervised release

under § 3583(e)(1).2 Rhodes merely asserts that, if he were to pursue such a remedy, it

might be helpful for him to have something from us saying his sentence was too long. In

other words, at this point it is entirely speculative whether anything we do will aid

Rhodes in the future. But Rhodes’ petition overlooks the principle that to defeat

mootness “it must be the effect of the court’s judgment on the defendant that redresses

the plaintiff’s injury, whether directly or indirectly.” Nova Health Sys. v. Gandy, 416

F.3d 1149, 1159 (10th Cir. 2005) (citations omitted and emphasis added).

       If courts may simply assume that everyone . . . will honor the legal
       rationales that underlie their decrees, then redressability will always exist.
       Redressability requires that the court be able to afford relief through the
       exercise of its power, not through the persuasive or even awe-inspiring
       effect of the opinion explaining the exercise of its power.

Id. (quoting Franklin v. Massachusetts, 505 U.S. 788, 825 (1992) (Scalia, J., concurring))

(emphasis added); see also United States v. Juvenile Male, No. 09-940 (U.S. June 27,

2011) (per curiam) (“[A] a favorable decision in this case might serve as a useful

precedent for respondent in a hypothetical [future] lawsuit . . . . But this possible,

indirect benefit in a future lawsuit cannot save this case from mootness.”).

       In resolving Rhodes’ § 2241 petition, which challenges only the length of his


       2
        In fact, he has not even been out of prison for a year, so cannot make such a
request until September. See § 3583(e)(1).

                                             -8-
sentence, we can say some things that might eventually help him. But we cannot do

anything to help him—regarding his sentence, there is no judgment we can render that

would assist him in a future challenge to his supervised release. And that is the

distinction that matters. “[A]ny opinion [from this court] as to the legality of the

[sentence] would be advisory.” City of Erie v. Pap’s A.M., 529 U.S. 277, 287 (2000).

                                             III

       Rhodes will get a chance to ask for a shorter term of supervised release. But he

must ask for a judgment concerning his supervised release—in other words, he must file

a § 3583(e)(1) petition (or a separate § 2241 petition challenging his supervised release).

This habeas petition, challenging only his sentence, is moot. The district court’s order

dismissing Rhodes’ § 2241 petition for that reason is AFFIRMED.




                                            -9-
