                                                                               F I L E D
                                                                       United States Court of Appeals
                                                                               Tenth Circuit
                         UNITED STATES COURT OF APPEALS
                                                                                JAN 13 1998
                                     TENTH CIRCUIT
                                                                           PATRICK FISHER
                                                                                    Clerk

 USMAN SHEHU SULE,
          Petitioner-Appellant,
 v.                                                          No. 97-1210
 WARDEN, ADX FLORENCE,                                   (D.C. No. 96-S-822)
 COLORADO,                                                   (D. Colo.)
          Respondent-Appellee.




                                  ORDER AND JUDGMENT*

                             ____________________________

Before BALDOCK, McKAY, and LUCERO, Circuit Judges.
                   ____________________________



      After examining Petitioner-Appellant’s brief and the 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); 10th Cir. R. 34.1.9. 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          This order and judgment is not binding precedent, except under the doctrines of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 is a former federal prisoner now in custody at the Immigration and

Naturalization Services detention facility in Aurora, Colorado. Appearing pro se and

proceeding in forma pauperis, Petitioner filed a habeas corpus petition pursuant to 28

U.S.C. § 2241 asserting that his First and Fifth Amendment rights were violated by a

prison disciplinary sanction withdrawing twenty-two days of good-time credit. Petitioner

appeals the district court’s dismissal of his section 2241 petition. Respondent moves for

this court to dismiss the appeal for mootness.

       Respondent contends the appeal is moot because Petitioner served his sentence and

was released from United States Bureau of Prisons’ custody on July 3, 1997. Respondent

also argues there are no collateral consequences that could transform Petitioner’s appeal

into a justiciable controversy because the challenged disciplinary sanction only impacted

a sentence that has been fully discharged. Petitioner argues his appeal is not moot

because collateral consequences could flow from his intention to undertake a civil rights

action for damages against the Bureau of Prisons and United States and from the

sixty-month term of supervised release included in his sentence.1

       Petitioner claims that because he intends to file a Bivens or Federal Tort Claims

Act action against the Bureau of Prisons and the federal government for the denial of


       1
          Petitioner only attacks the validity of the prison disciplinary sanction
withholding good-time credit. Petitioner does not attack the validity of the underlying
conviction or the sentence of 97 months imprisonment and 60 months supervised release
for importation of heroin imposed by the United States District Court for the Eastern
District of New York in 1990.

                                             2
good-time credit, the rule in Heck v. Humphrey, 512 U.S. 477 (1994), constitutes a

collateral consequence flowing from the disciplinary sanction. Under Heck, Petitioner is

required to obtain a judgment setting aside the prison disciplinary sanction as a

prerequisite to claiming damages for constitutional violations under 42 U.S.C. § 1983.

See id. at 486-87. If we were to find this appeal moot, we would effectively bar

Petitioner from undertaking a civil rights action. We must determine whether the Heck

bar constitutes a collateral consequence under existing precedent.

       A case becomes moot if at any time during any stage of a judicial proceeding no

live controversy exists or “the parties lack a legally cognizable interest in the outcome.”

Powell v. McCormack, 395 U.S. 486, 496 (1969); see U.S. Const. art. III, § 2; United

States v. Chavez-Palacios, 30 F.3d 1290, 1292-93 (10th Cir. 1994). However, an

exception to the mootness doctrine occurs when “collateral consequences” from a

judgment give a party a substantial stake in the outcome of the case. Carafas v. LaVallee,

391 U.S. 234, 237 (1968). The collateral consequences doctrine recognizes that the law

naturally imposes future indirect consequences when a previous judgment, conviction, or

sentence affects the outcome of a later-existing dispute. See Sibron v. New York, 392

U.S. 40, 53-57 (1968); Carafas, 391 U.S. at 237; see also Oyler v. Allenbrand, 23 F.3d

292, 294 (10th Cir. 1994) (holding habeas appeal not moot because possible collateral

consequences could flow from misdemeanor conviction). While we acknowledge that the

Seventh Circuit has suggested the collateral consequences doctrine is limited to a narrow


                                              3
set of imposed legal disabilities such as being barred from holding office, voting in state

election, and serving as a juror, see McClendon v. Trigg, 79 F.3d 557, 558 (7th Cir.

1996), our reasoning leads us to a contrary result.

       The Supreme Court has held “that a criminal case is moot only if it is shown there

is no possibility that any collateral legal consequences will be imposed on the basis of the

challenged conviction.” Sibron, 392 U.S. at 57. A collateral consequence is not

necessarily limited to the few legal penalties articulated by the Supreme Court in Carafas,

391 U.S. at 237, but may be defined more broadly as the possibility of a legal

consequence stemming from one’s status.2 See Sibron, 392 U.S. at 55 (The “mere

possibility” of an adverse legal collateral consequence “is enough to perserve a criminal

case from ending ignominiously in the limbo of mootness.”) (internal quotation marks

and citation omitted). The structure of our existing law creates a variety of statuses-- such

as the felon, the habitual offender, the parolee, or the probationer--from which collateral

consequences may flow. See Carafas, 391 U.S. at 237 (case not moot because defendant

could not vote or serve as juror as a consequence of his conviction); United States v.

Reider, 103 F.3d 99, 101 (10th Cir. 1996) (release from federal custody and from any

term of parole or supervised release did not moot appeal from order revoking release);



       2
         Our use of “status” conforms to the following primary definition: “[T]he
condition . . . of a person that determines the nature of his legal personality, his legal
capacities, and the nature of the legal relations to the state or to other persons into which
he may enter.” Webster’s Third New International Dictionary 2230 (1986).

                                              4
Chavez-Palacios, 30 F.3d at 1293 (attack on sentence was not moot because appellate

court decision could affect appellant’s two-year term of supervised release); United States

v. Smith, 997 F. 2d 674, 676 n.2 (10th Cir.) (felony status rendered appeal justiciable),

cert. denied, 510 U.S. 937 (1993); City of Ottowa v. Lester, 822 P.2d 72, 74 (Kan. 1991)

(appeal not moot because of collateral effect on habitual offender status).

       In Russ v. Perrill, 995 F.2d 1001, 1003 n.2 (10th Cir. 1993), we held that

petitioner’s habeas appeal was not moot even though his sentence was fully discharged

and he was no longer in federal custody. In Russ, petitioner brought a habeas petition for

the violation of his rights under the Youth Corrections Act. Under that act, a youth

offender’s conviction would be set aside if he received an unconditional discharge prior

to the completion of his maximum sentence. See id. If we had dismissed the appeal as

moot, we would have barred the setting-aside of petitioner’s conviction, even though we

determined that petitioner’s rights had been violated. Id. at 1003. We therefore

concluded that the appeal was not moot because it “ha[d] important collateral

consequences.” Id. at 1003 n.2. Similarly, under Heck, one can pursue legal action for

the deprivation of civil rights only when the underlying conviction or sentence has been

invalidated. See Heck, 512 U.S. at 486-87. In the best-case scenario, where a habeas

corpus petitioner’s constitutional rights were in fact violated, that petitioner would have a

valid basis for a section 1983 action. However, as in Russ, a dismissal of the habeas

action for mootness would impose a legal disability on that petitioner because his


                                              5
meritorious civil rights action would be barred by Heck.3 The irony of this result is that a

petitioner whose civil rights clearly have been violated but who received a short sentence

would be unable to satisfy the Heck rule. A petitioner who also had a plausible civil

rights claim but who received a life sentence could meet Heck’s requirement simply

because he remained incarcerated. Such a distinction would be arbitrary and senseless.

We conclude that the Heck rule requiring a successful attack on the underlying

disciplinary sanction before pursuing a damages claim constitutes a collateral

consequence within the meaning of the mootness doctrine. Accord Leonard v. Nix, 55

F.3d 370, 373 (8th Cir. 1995).

       Our review of the record indicates that, although no actual controversy exists at

this stage of the proceeding, Petitioner has articulated the presence of an adverse

collateral consequence that could be imposed as a result of the prison disciplinary

sanction. We therefore do not decide whether any collateral consequences stem from

Petitioner’s sixty-month term of supervised release.4 We deny Respondent’s Motion to

Dismiss this appeal for mootness and turn to the merits of Petitioner’s section 2241 claim.




       3
        We note that while, for the purposes of analysis, the collateral consequences
doctrine is examined in light of the meritorious case where petitioner’s constitutional
rights were violated, the rule also encompasses the petitioner whose claim has no merit.
       4
         Apparently, were we to address this issue, prior decisions in this circuit indicate
that no collateral consequences would stem from Petitioner’s sixty-month term of
supervised release. See Johnson v. Riveland, 855 F.2d 1477, 1481-82 & n.4 (10th Cir.
1988); Vandenburg v. Rodgers, 801 F.2d 377, 377-78 (10th Cir. 1986).

                                              6
       After reviewing the record, we affirm the district court’s dismissal of the habeas

petition for the reasons stated in the magistrate judge’s Recommendation filed October 1,

1996, and adopted by the district court in its Order of Dismissal filed May 20, 1997.

Judge Baldock concurs in the result only.



       AFFIRMED.

                                                 Entered for the Court


                                                 Monroe G. McKay
                                                 Circuit Judge




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