                                                                    F I L E D
                                                             United States Court of Appeals
                                                                     Tenth Circuit
                   UNITED STATES COUR T OF APPEALS
                                                                    April 10, 2007
                                TENTH CIRCUIT                    Elisabeth A. Shumaker
                                                                     Clerk of Court


 STEPHEN H. SM ALLW OOD, JR.,

               Petitioner - A ppellant,
                                                      No. 06-6249
          v.                                         W .D. Oklahoma
 JO SEPH SC IB AN A ,                           (D.C. No. 05-CV -1415-F)

               Respondent - Appellee.



                           OR D ER AND JUDGM ENT *


Before H E N RY, BR ISC OE, and O’BRIEN, Circuit Judges.




      After examining the briefs and appellate record, this panel has

determined unanimously that oral argument would not materially assist in the

determination of this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R.

34.1(G ). The case is therefore ordered submitted without oral argument.

                                 BACKGROUND

      Stephen Smallwood, a federal prisoner, was accused of using marijuana

while incarcerated.   The Bureau of Prisons (BOP), acting through a District

Hearing Officer (DHO), held a hearing, determined Smallwood comm itted the



      *
        This order and judgment is not binding precedent except under the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 w ith Fed. R. App. P. 32.1
and 10th Cir. R. 32.1.
infraction and imposed penalties. Smallwood took an administrative appeal,

arguing procedural irregularities at his hearing prevented a full and fair

defense. His administrative appeal was successful; a rehearing was ordered.

In spite of the favorable administrative determination, Smallwood filed a

petition for habeas corpus in the district court again alleging procedural

irregularities before the DHO violated his constitutional rights. In the interim

he was transferred to another BOP facility. On M ay 3, 2006, he amended his

petition for writ of habeas corpus complaining that he had been punished for

the alleged infraction prior to the rehearing. On M ay 11, 2006, the rehearing

was held before the DHO (at the new facility), who again found Smallwood

committed the infraction and reimposed the same penalties. Any complaints

Smallwood may have regarding the second hearing are not implicated here.

      The magistrate judge, sua sponte, recommended dismissal of

Smallwood’s claims because they were moot. The district judge adopted the

recommendation and dismissed for lack of jurisdiction. Smallw ood appeals.

W e affirm.

                                  DISCUSSION

      Standing and mootness are related jurisdictional doctrines; mootness is

implicated here. Standing is a jurisdictional threshold for bringing a case in

federal court. It tests whether a case or controversy exists. M ootness is

implicated when a case or controversy, originally present, ceases to exist.

Standing is evaluated by reference to the circumstances existing at the time of



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the filing of the complaint. Utah Ass'n of Counties v. Bush, 455 F.3d 1094,

1099 (10th Cir. 2006). “Subject matter jurisdiction generally does not vanish

once it properly attaches.” Pittsburg County Rural Water Dist. No. 7 v. City of

M cAlester, 358 F.3d 694, 706 (10th Cir. 2004). M ootness is the most notable

exception to that general rule; the jurisdiction of a federal court evaporates

when subsequent events terminate the controversy extant at the inception.

Pittsburg County, 358 F.3d at 706 (citing Spencer v. Kemna, 523 U.S. 1, 7

(1998)). “Federal courts lack jurisdiction to decide moot cases because their

constitutional authority extends only to actual cases or controversies. To

satisfy the Article III case or controversy requirement, a litigant must have

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)

(citations omitted).

      Smallwood’s complaints could not be redressed by the district court —

his case was moot. Smallwood sought correction of procedural errors at the

initial hearing, both administratively and by his habeas petition. The

administrative process resulted in a new hearing, about which he does not here

complain. At the rehearing, which occurred after his amended habeas

complaint was filed, he was again found to have committed the infraction and

the same sanctions were re-imposed. His complaints about the initial hearing

were thereby rendered moot. See Hayes v. Evans, 70 F.3d 85, 86 (10th Cir.

1995) (state court reversed petitioner’s initial conviction while habeas petition



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was pending in the federal court, habeas petition was rendered moot);

Anderson v. Evans, No. CIV-05-1145-L, 2006 W L 1049618 at *1 (W .D. Okla.

April 17, 2006) (where prisoner complained about a disciplinary hearing, and

the same penalties were imposed upon rehearing, claim was rendered moot).

      In his amended petition, Smallwood argues he should not have been

punished pending the rehearing, because doing so violated BOP regulations.

Yet, as the Anderson court noted, “even if authorities had removed the

penalties [pending the rehearing, petitioner] would ultimately have obtained

the same sanctions based on the outcome of the rehearing.” Anderson, 2006

W L 1049618 at *2. Because the outcome of the second hearing was the same

as that of the first, Smallwood’s complaint about the punishment imposed after

the first hearing is also moot. Stripped to its bones, his complaint in this

action is that he was punished prematurely rather than inappropriately. Unless

the premature punishment impacted the second hearing there is no habeas

remedy available, or necessary, for that complaint.

      Smallwood may wish to challenge the rehearing, but that issue is not

properly before this Court because it was not advanced before the district

court. 1 Barnes v. Scott, 201 F.3d 1292, 1294 n.2 (10th Cir. 2000). In addition,

while Smallwood states in his appellate brief “the delay in the rehearing and



      1
        In fact, the district court expressly declined to address any complaint
about the second rehearing because the rehearing had not yet occurred at the
time of Smallwood’s second amended complaint. Therefore, the second
amended complaint could not logically be construed as assigning error to the
rehearing procedures.

                                        -4-
transfer interfered with [his] defense,” we see no claim in Smallwood’s second

amended complaint alleging the delay preceding the rehearing prejudiced his

ability to present his defense at the rehearing. (Appellant’s Br. at 16.) See

Hayes, 70 F.3d at 85 (suggesting a habeas action might lie if a delay in

decision of a direct appeal prejudiced the petitioner’s ability to defend himself

on retrial but such an action should be brought as a challenge to the retrial

proceedings).

      The district court’s dismissal for lack of jurisdiction is AFFIRMED.



                                              ENTERED FOR THE COURT


                                              Terrence L. O’Brien
                                              Circuit Judge




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