Fratis v. Ortiz , 190 F. App'x 686 ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
August 4, 2006
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
LY NDA M . FRA TIS,
Petitioner-A ppellant,
v. No. 05-1154
(D.C. No. 04-Z-2537)
JOE ORTIZ, Executive Director of the (D . Colo.)
Colorado Department of Corrections;
JEANNE E. M ILLER, Director of
Community Corrections; KEN
SA LAZAR, the Attorney General of
the State of Colorado,
Respondents-Appellees.
OR D ER AND JUDGM ENT *
Before TA CH A, Chief Judge, O’BRIEN, and M cCO NNELL, Circuit Judges.
Lynda M . Fratis appeals from the district court’s dismissal of her 28 U.S.C.
§ 2254 habeas petition for failure to exhaust administrative remedies. W e granted
*
After examining the briefs and appellate record, this panel has determined
unanimously to grant the parties’ request for a decision on the briefs without oral
argument. See Fed. R. App. P. 34(f); 10th Cir. R. 34.1(G). 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 This order and judgment is not binding
precedent, except under the doctrines of law of the case, res judicata, and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.
a certificate of appealability on the following issue: whether the postconviction
proceeding M s. Fratis initiated in the Pitkin County District Court exhausted her
state remedies in accordance with 28 U.S.C. § 2254(b)(1). W e have jurisdiction
pursuant to 28 U.S.C. §§ 1291 and 2253, and dismiss the appeal as moot.
Background
In November 2004, M s. Fratis, an inmate of the Colorado Department of
Corrections (CDOC), filed a pro se application for a writ of habeas corpus
pursuant to 28 U.S.C. § 2254. She did not seek relief from the conviction
resulting in her imprisonment. Rather, she sought relief from a Code of Penal
Discipline (COPD ) conviction she received as an inmate. As a result of the
COPD conviction, her placement in the Intensive Supervised Program (ISP),
which is a conditional release program allowing inmates to live in a community
placement, was revoked. Through her habeas petition, M s. Fratis sought to be
returned to the ISP. On M arch 29, 2006, while this appeal was pending, she w as
returned to the ISP. Nevertheless, she contends her appeal is not moot.
Discussion
“A habeas corpus petition is moot when it no longer presents a case or
controversy under Article III, § 2, of the Constitution.” Aragon v. Shanks,
144 F.3d 690, 691 (10th Cir. 1998) (citing Spencer v. Kemna, 523 U.S. 1 (1998)).
To satisfy this case or controversy requirement, “the plaintiff must have suffered,
or be threatened with, an actual injury traceable to the defendant and likely to be
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redressed by a favorable judicial decision.” Id. (quotation omitted). “M ootness is
a threshold issue because the existence of a live case or controversy is a
constitutional prerequisite to federal court jurisdiction.” M cClendon v. City of
Albuquerque, 100 F.3d 863, 867 (10th Cir. 1996).
To avoid dismissal M s. Fratis must demonstrate an actual injury traceable
to the defendant and capable of being redressed by a judicial decision. W e take
guidance from Spencer v. Kemna, 523 U.S. 1 (1998). In Spencer, the petitioner’s
parole status was revoked and he was reincarcerated. Id. at 3. In his habeas
petition, petitioner sought to invalidate the order revoking his parole, but by the
time the case w as decided by the district court, he had completed the entire term
of imprisonment underlying the parole revocation. Id. at 3, 6-7. The Supreme
Court concluded, “[t]he reincarceration that [petitioner] incurred as a result of the
[parole revocation] is now over, and cannot be undone. Subsistence of the suit
requires, therefore, that continuing ‘collateral consequences’ of the parole
revocation be either proved or presumed.” Id. at 8. The Supreme Court went on
to conclude that collateral consequences must be proved, not presumed. Id. at 14.
Like the petitioner in Spencer, M s. Fratis’ reincarceration is now over and cannot
be undone. M s. Fratis must therefore show collateral consequences of the
revocation. Id. She has not met her burden on the record before this court.
M s. Fratis’ habeas petition requests she be returned to the ISP program,
which has already occurred. She argues, however, that her appeal is not moot
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because her “two-plus year period of incarceration set her back considerably” and
“she has lost a significant amount of time.” Aplt. Br. at 10. In her reply brief,
she also states, “a concrete regression of Petitioner’s sentence occurred, which
lengthened her term of confinement by the loss of good time, status and parole
eligibility.” Reply Br. at 4. These vague and conclusory statements, which are
not supported by citations to the record, are insufficient to establish collateral
consequences.
M s. Fratis did not seek restoration of any time lost due to her
reincarceration or as a result of her COPD conviction; she simply requested to “be
placed back into the Intensive Supervision Program, at the level of liberties she
held prior to the unlawful revocation.” Aplt. App. at 15. In her pro se opening
brief, she reiterated this request for relief by stating, “[t]he Petitioner seeks this
court to issue her writ of H abeas Corpus to restore her to conditional release
status.” COA Opening Br. at 3. Because M s. Fratis has been returned to her
conditional release status in the ISP, her habeas petition is now moot.
A ccordingly, the appeal is D ISM ISSED.
Entered for the Court
Terrence L. O’Brien
Circuit Judge
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