                                                                        FILED
                                                            United States Court of Appeals
                                                                    Tenth Circuit

                     UNITED STATES COURT OF APPEALS                August 4, 2009
                                 TENTH CIRCUIT                  Elisabeth A. Shumaker
                                                                    Clerk of Court


 KERRY LUCERO,

      Petitioner - Appellant,

 v.
                                                       No. 09-3085
 DAVID MCKUNE, Warden, Lansing                  (D.C. No. 08-CV-3062-SAC)
 Correctional Facility; ROGER                            (D. Kan.)
 WERHOLTZ, Kansas Secretary of
 Corrections; STEPHEN SIX, Attorney
 General for the State of Kansas,

      Respondents - Appellees.



           ORDER DENYING CERTIFICATE OF APPEALABILITY *


Before KELLY, BRISCOE, and HOLMES, Circuit Judges.


       Petitioner-Appellant Kerry Lucero seeks a certificate of appealability

(“COA”) that would allow him to appeal from the district court’s denial of his

petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2241. 1 We conclude


       *
              This Order is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. It may be cited, however,
for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th Cir. R.
32.1. After examining the Petitioner’s brief and the appellate record, this three-
judge panel has determined unanimously that oral argument would not be of
material assistance in the determination of this matter. See Fed. R. App. P. 34(a).
The case is therefore ordered submitted without oral argument.
       1
             Because Mr. Lucero is proceeding pro se, we review his filings
liberally. See Haines v. Kerner, 404 U.S. 519, 520-21 (1972); Howard v. U.S.
                                                                   (continued...)
that Mr. Lucero’s release from prison has mooted his appeal. Accordingly, we

deny him a COA.

                                 BACKGROUND

      In 1989, Mr. Lucero was convicted in Kansas state court of aggravated

battery, aggravated robbery, and kidnapping. He was sentenced to 7-20 years’

imprisonment, with his sentences for these crimes to run concurrently with each

other. A month later, he was convicted of a drug crime in the same state court

and received a sentence of 1-3 years’ imprisonment, to be served consecutive to

his earlier sentence. His sentences were then aggregated to a total of 8-23 years’

imprisonment.

      In 2001, Mr. Lucero was placed on conditional release, but he returned to

prison in 2004 after he violated his parole. Upon his return to prison, he filed a

motion in state district court under K.S.A. § 60-1501, arguing that his sentences

had been unconstitutionally and illegally aggregated. The court disagreed and

dismissed his petition. The Kansas Court of Appeals affirmed. See Lucero v.

Cline, No. 96,343, 2007 WL 1461394, at *1 (Kan. App. May 18, 2007).

      Mr. Lucero then filed a petition for a writ of habeas corpus in federal court

pursuant to 28 U.S.C. § 2241. He argued that the state statute providing for

aggregation, K.S.A. § 21-4608(f)(4), was unconstitutional, and that his sentences

had been illegally aggregated. After Mr. Lucero filed his petition, Kansas

released him from prison. The district court dismissed his petition, finding that

      1
      (...continued)
Bureau of Prisons, 487 F.3d 808, 815 (10th Cir. 2007).

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his claims actually only involved issues of state law and therefore did not present

a valid legal basis for federal habeas corpus relief. The court also noted that Mr.

Lucero’s “release from prison may moot his claim for immediate release, [but] it

did not moot his claim, raised in this Petition filed before his release, that he was

held beyond his lawful sentences.” R., Vol. I, Doc. 9, at 11 (Dist. Ct. Order,

dated Mar. 3, 2009). Mr. Lucero requested a COA, which the district court

denied. He now renews his request for a COA with this court.

                                   DISCUSSION

      The federal writ of habeas corpus “shall not extend to a prisoner unless . . .

[h]e is in custody in violation of the Constitution or laws . . . of the United

States.” 28 U.S.C. § 2241(c)(3). Although Mr. Lucero is no longer in prison, the

“in custody” requirement of § 2241 is satisfied because he filed his habeas

application while he was incarcerated. See Spencer v. Kemna, 523 U.S. 1, 7

(1998); Riley v. INS, 310 F.3d 1253, 1256 (10th Cir. 2002). However, the “more

substantial question” is whether Mr. Lucero’s release from prison moots his

petition because we are no longer presented with a case or controversy as required

under Article III of the Constitution. Spencer, 523 U.S. at 7.

      This Court has held that

             [m]ootness is a threshold issue because the existence of a live
             case or controversy is a constitutional prerequisite to federal
             court jurisdiction. This requirement exists at all stages of
             federal judicial proceedings, and it is therefore not enough that
             the dispute was alive when the suit was filed; the parties must
             continue to have a personal stake in the outcome.

McClendon v. City of Albuquerque, 100 F.3d 863, 867 (10th Cir. 1996) (citation


                                          -3-
omitted). Since a federal court has no authority to give opinions upon moot

questions, if an event occurs during the pendency of an appeal that makes it

impossible for the court to grant any effectual relief, the appeal must be

dismissed. See Church of Scientology v. United States, 506 U.S. 9, 12 (1992).

      When a prisoner has been released from custody while his or her habeas

petition is pending, the court’s jurisdiction depends upon the existence of

“collateral consequence[s] of the conviction” adequate to meet Article III’s

injury-in-fact requirement. Spencer, 523 U.S. at 7, 14 (internal quotation marks

omitted). In other words, the petitioner must demonstrate “some concrete and

continuing injury.” Id. at 7; see, e.g., Carafas v. LaVallee, 391 U.S. 234, 237-38

(1968) (holding that the defendant’s inability to engage in certain businesses,

serve as an official of a labor union, vote in an election, and serve as a juror due

to his conviction defeated the mootness challenge to his appeal).

      In his application for a COA, Mr. Lucero has not identified any collateral

consequences associated with his previous incarceration. And, based on the

record before us, nor can we. He does not attack his criminal convictions, but

merely alleges that his sentences were illegally increased. See Spencer, 523 U.S.

at 8 (noting a “willing[ness] to presume that a wrongful criminal conviction has

continuing collateral consequences”). While he initially asked the district court

to release him from prison, he now only requests that we “issue a certificate of

probable cause so that [he] may appeal the [district court’s] order . . . denying

[his] application for writ of habeas corpus.” Aplt. Br. at 3. However, the federal

courts “are not in the business of pronouncing that past actions which have no

                                          -4-
demonstrable continuing effect were right or wrong.” Spencer, 523 U.S. at 18.

Since Mr. Lucero has been released from custody, he has already received his

requested relief, and there is simply “nothing for us to remedy.” Id. We

therefore hold that Mr. Lucero’s “release from detention moots his challenge to

the legality of his [imprisonment].” Riley, 310 F.3d at 1257.

                                 CONCLUSION

      For the foregoing reasons, we DENY Mr. Lucero’s motion for a COA as

moot, DISMISS the appeal, VACATE the district court’s judgment, and

REMAND to the court with instructions to dismiss without prejudice the

underlying case as moot. 2

                                              Entered for the Court


                                              Jerome A. Holmes
                                              Circuit Judge


      2
              Because Mr. Lucero’s petition was mooted by the government’s
decision to release him from custody, vacatur of the district court’s judgment is
appropriate. See United States v. Munsingwear, Inc., 340 U.S. 36, 39-40 (1950);
Wyoming v. U.S. Dep’t of Agric., 414 F.3d 1207, 1213 (10th Cir. 2005) (“[I]t is
frequently appropriate for an appellate court to vacate the judgment below when
mootness results from happenstance or the actions of the prevailing party.”);
McAlpine v. Thompson, 187 F.3d 1213, 1214-15 (10th Cir. 1999) (vacating the
district court’s order and remanding to the district court with instructions to
dismiss the inmate’s petition as moot where inmate was released from prison); cf.
Miller v. Glanz, No. 09-5005, 2009 WL 1741386, at *2 (10th Cir. June 22, 2009)
(unpublished) (discussing the distinction between cases mooted when appeal is
pending and cases mooted when COA is pending and noting that while in the
COA case, the appellate court has never exercised jurisdiction over the merits of
the appeal itself, “we see no reason why the court’s undeniable jurisdiction over
the COA application is not sufficient to enable it to effect the Munsingwear
procedure”).

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