                                                                        F I L E D
                                                                 United States Court of Appeals
                                                                         Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                         OCT 22 2003
                           FOR THE TENTH CIRCUIT
                                                                    PATRICK FISHER
                                                                             Clerk

    MICHAEL ROBERT HOLLEY,
    also known as Charles M. Scarth,

                Petitioner-Appellant,

    v.                                                 No. 02-3372
                                               (D.C. No. 01-CV-3047-RDR)
    STEVEN L. ANDRASCHKO;                                (D. Kan.)
    CHARLES DONALDSON,

                Respondents-Appellees.


    MICHAEL ROBERT HOLLEY,
    also known as Charles M. Scarth,

                Petitioner-Appellant,

    v.                                                 No. 02-3374
                                               (D.C. No. 00-CV-3181-RDR)
    MICHAEL A. LANSING,                                  (D. Kan.)

                Respondent-Appellee.


                            ORDER AND JUDGMENT          *




Before SEYMOUR , BRISCOE , and LUCERO , Circuit Judges.



*
      This order and judgment is not binding precedent, except under the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.
       After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materially assist the determination of

these appeals.   See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The cases are

therefore ordered submitted without oral argument.

       Michael R. Holley (also known as Charles M. Scarth) filed two 28 U.S.C.

§ 2241 habeas applications while he was a military prisoner incarcerated in the

United States Disciplinary Barracks (USDB) in Fort Leavenworth, Kansas. Upon

learning that Mr. Holley was no longer in custody, the district court dismissed the

applications as moot. In these companioned cases, Mr. Holley, appearing pro se

and in forma pauperis, appeals the district court’s rulings. This court affirms.


                                  BACKGROUND

       In 1983, following a general court-martial, Mr. Holley began serving a

five-year sentence of confinement at hard labor at USDB. He was granted a

temporary home parole, restricted to a twenty-five mile radius of his mother’s

address in Whittier, California, from November 20 to November 27, 1984. He

failed to return to USDB at the assigned time and was placed on escape status.

Mr. Holley was apprehended in August 1999 in Phoenix, Arizona, and returned to

USDB to serve the remainder of his sentence.



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      On May 15, 2000, Mr. Holley commenced the action appealed as

No. 02-3374. He claimed that his imprisonment violated his due process rights,

because his maximum release date had been illegally extended from the original

date of 1987 to the post-apprehension date of 2001. Later, Mr. Holley attempted

to add additional allegations concerning search and seizure, placement in

disciplinary segregation, confiscation of his personal property, and the need to

indict USDB personnel. While the case was pending, Mr. Holley’s sentence

expired. He was unconditionally released from confinement on November 20,

2001. The district court dismissed the action on the ground of mootness.

      The second habeas action, appealed as No. 02-3372, was filed February 12,

2001. In his application, Mr. Holley again alleged that his sentence was illegally

extended and also asserted that he was being held in high-risk disciplinary

segregation without justification or due process. As in No. 02-3374, the district

court dismissed the matter as moot upon proof of Mr. Holley’s release from

custody.


                                    DISCUSSION

      This court reviews the jurisdictional issue of mootness de novo.   Faustin v.

City & County of Denver , 268 F.3d 942, 947 (10th Cir. 2001). A litigant must

“continue to have a personal stake in the outcome” of his case in order to satisfy

the case or controversy requirement of Article III, § 2 of the Constitution.

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Spencer v. Kemna , 523 U.S. 1, 7 (1998) (quotation omitted). We therefore

consider whether a case or controversy continues to exist.

       Because Mr. Holley was still incarcerated when he filed his habeas

applications, the “in custody” provision of § 2241 was satisfied,      see Riley v. INS ,

310 F.3d 1253, 1256 (10th Cir. 2002), and his release does not automatically moot

his applications, see Spencer , 523 U.S. at 7.    1
                                                      However, a § 2241 habeas

proceeding is generally “‘an attack by a person in custody upon the legality of

that custody, and . . . the traditional function of the writ is to secure release from

illegal custody.’”    McIntosh v. United States Parole Comm’n       , 115 F.3d 809, 811

(10th Cir. 1997) (quoting    Preiser v. Rodriguez , 411 U.S. 475, 484 (1973)). To

maintain his actions, Mr. Holley must demonstrate that serious collateral

consequences of his incarceration exist—      i.e ., that there is “some concrete and

continuing injury.”    Spencer , 523 U.S. at 7.

       Mr. Holley does not make the necessary showing of collateral

consequences. Because he has already been released from custody, “there is

nothing for us to remedy.”     Id. at 18. “[M]ootness, however it may have come

about, simply deprives us of our power to act.”         Id. The federal courts “are not in




1
      In pertinent part, § 2241 provides that “[t]he writ of habeas corpus shall not
extend to a prisoner unless– . . . (3) He is in custody in violation of the
Constitution or laws or treaties of the United States . . . .”

                                            -4-
the business of pronouncing that past actions which have no demonstrable

continuing effect were right or wrong.”   Id.

      We agree with the district court that Mr. Holley’s habeas actions were

mooted by his release from USDB and conclude that the applications were

correctly dismissed. The judgments of the district court, in Nos. 02-3372 and

02-3374, are AFFIRMED. Mr. Holley’s motion to moot entry of appearance, filed

in No. 02-3374, is denied. The mandates shall issue forthwith.



                                                   Entered for the Court



                                                   Mary Beck Briscoe
                                                   Circuit Judge




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