                                                                      FILED
                                                          United States Court of Appeals
                                                                  Tenth Circuit

                   UNITED STATES COURT OF APPEALS
                                                                  May 19, 2009
                                                              Elisabeth A. Shumaker
                                TENTH CIRCUIT                     Clerk of Court



 PERRY YORK,

               Petitioner-Appellant,
                                                        No. 09-3008
 v.                                           (D.C. No. 5:07-CV-03234-RDR)
                                                         (D. Kan.)
 U.S. PAROLE COMMISSION,

               Respondent-Appellee.


                           ORDER AND JUDGMENT *


Before LUCERO, MURPHY, and McCONNELL, Circuit Judges.


      Perry York filed a petition for a writ of habeas corpus under 28 U.S.C.

§ 2241 contesting the order in which he was required to serve his two consecutive

federal sentences and the impact of that order on his current parole status.

Because York was released from prison while his petition was pending, the

district court concluded the case was moot and dismissed the petition despite

York’s contention that his case was not moot while he remained on parole. The


      *
        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). 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judgment is not binding precedent, except under the doctrines of law of the case,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. 32.1.
district court’s order is silent as to York’s parole status. We agree with York that

his case is not moot by virtue of his release if he remains on parole. However, we

cannot definitively determine whether York remains on parole on the record

before us. Exercising jurisdiction under 28 U.S.C. § 1291, we vacate the

dismissal of York’s habeas petition and remand for further proceedings consistent

with this order and judgment.

      On February 19, 1986, York was convicted of aiding and abetting robbery

of a credit union and assault with a handgun in commission of the same. He was

sentenced to consecutive sentences of 15 years’ imprisonment on the former

charge and 5 years’ imprisonment on the latter. The United States Parole

Commission initially ordered that York’s parole-eligible term of 15 years be

served prior to his 5 year non-parole eligible term. The Parole Commission later

switched course, ordering York to serve the non-parole eligible term first.

      On September 7, 2007, York filed a § 2241 petition challenging the

reordering of his sentences without a hearing, claiming violations of his Double

Jeopardy and Due Process rights. York signed his habeas petition on August 31,

2007, while incarcerated in the federal penitentiary in Leavenworth, Kansas. He

later moved for summary judgment.

      On June 10, 2008, York filed a notice of change of address, providing a

non-prison mailing address in Minnesota. In a subsequent filing, York notified

the court that he would be released “on unlawful supervision” on August 5, 2008.

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He later provided a second non-prison address effective that same day. The

district court issued a show cause order as to why the case should not be

dismissed as moot, and York filed a response. He argued that he remained on

parole and thus his case was not moot because he remained in custody for

purposes of § 2241. Despite that response, the district court dismissed the habeas

petition as moot. In its order, the district court noted, “[b]ecause he has been

released from confinement, the court finds no additional relief can be granted in

this action. Likewise, the court has identified no collateral consequence that

might warrant the retention of this action.” In so doing, the district court made no

finding as to whether York remained on parole at the time of its ruling.

      A case is not moot if a court can provide effectual relief. United States v.

Hahn, 359 F.3d 1315, 1323 (10th Cir. 2004) (en banc). If York completed the

term of his federal sentence including the entirety of his parole on the relevant

two counts of conviction, his habeas petition would indeed be moot because a

court could not provide relief. If he were on parole for the relevant convictions at

the time the district court ruled, however, the court might be able to redress his

injury, and his petition might not be moot. See Aycox v. Lytle, 196 F.3d 1174,

1176 n.2 (10th Cir. 1999) (holding that a case was not moot because the petitioner




                                        -3-
remained on parole and his parole period would be shortened if he prevailed on

the merits of his claim). 1

       York argued to the district court that he remained on parole, and the

evidence in the record regarding his current parole status is unclear. 2 He

challenges the order in which he was required to serve his consecutive sentences

as well as the lack of a hearing provided when the Parole Commission altered that

order. Should he prevail, a judicial remedy could conceivably affect the duration

of his parole and thus his case would not be moot. Because the record is unclear

as to York’s current parole status, we cannot determine whether this case is moot.

       Accordingly, we VACATE the dismissal of York’s habeas petition and

REMAND for further proceedings consistent with this order and judgment. 3




       1
        From the face of the district court’s order it seems clear that it relied on
the constitutional mootness doctrine. Had the district court instead relied on the
“in custody” requirement of § 2241, the same result would hold because a parolee
remains “in custody” within the meaning of that statute. Jones v. Cunningham,
371 U.S. 236, 243 (1963).
       2
         The record seemingly supports York’s claim that he is presently on
parole, but we allow the district court to make factual findings on this issue in the
first instance on remand.
       3
        Because it is unclear whether this case is moot and thus whether there is
federal court jurisdiction, we do not consider the merits of the habeas petition.
See Steel Co. v. Citizens for a Better Env’t, 523 U.S. 83, 94 (1998).

                                        -4-
York’s motion for appointment of counsel is DENIED WITHOUT

PREJUDICE.



                                 Entered for the Court



                                 Carlos F. Lucero
                                 Circuit Judge




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