* This order and judgment is not binding precedent except under the

doctrines of law of the case, res judicataand collateral estoppel. The court generally disfavors the citation of orders and judg ments; nevertheless, an order and judgment may be cited under the terms and condi tions of 10th Cir. R. 36.3.

UNITED STATES COURT OF APPEALS Filed 8/1/96 TENTH CIRCUIT

_____________________ NICHOLAS V. BANNER Petitioner-Appellant,

v. STATE OF UTAH; BOARD OF PARDONS AND PAROLE, Respondents-Appellees. No. 96-4020 (D.C. No. 95-CV-676) (D. Utah)

_____________________ ORDER AND JUDGMENT *

_____________________ Before BRORBY, EBEL and HENRY , Circuit Judges.

_____________________ After examining the briefs and appellate record, th is panel has determined unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1.9. The c ase is therefore ordered submitted without oral argument.-2-

Nicholas V. Banner initiated this action in the dis trict court under 28 U.S.C. § 2254, claiming the Board of Pardons and Parole for the State of Utah (the "Board") placed an unconstitutional condition on his parole. On the recommendation of a magistrate judge, the district court denied Mr. Banner's petition. We exercise jurisdiction pursuant to 28 U.S.C. §§ 1291 and 2253 and affirm.

Taking issue with the Board's requirement that he p articipate in an inpatient sex offender program when his sentence itse lf did not require such participation, Mr. Banner argues that "[a]ny prescr ibed condition of parole which to satisfy requires that the offender remain in con finement, as a prisoner, violates his due process liberty interest in a release from imprisonment, as a parolee." We decline to address the merits of Mr. Banner's claim because his status as a parolee has been lawfully revoked, which renders moot any c omplaint he might have had with the conditions placed on his parole.

After Mr. Banner served a term of imprisonment in t he Utah State Prison on his conviction for sexual abuse of a child, the Board entered an order granting him parole. In anticipation of his parole, Mr. Ban ner signed a parole agreement. In this agreement, Mr. Banner agreed to abide by nu merous parole conditions,-3-

violations of which empowered the Board to revoke h is parole. Included among the conditions was an agreement that he not leave t he State of Utah without prior written authorization from a parole agent. The agr eement also included the condition Mr. Banner challenges as unconstitutional . Before completing the sex offender treatment program, Mr. Banner "walked away " from the facility where he was receiving sex offender therapy and moved to the State of Georgia. Without regard to the requirement that he participate in th e challenged program, his move to Georgia violated the parole condition that he no t leave the Utah without written consent from his parole agent. Mr. Banner was arre sted nearly a year later and charged with four parole violations. Mr. Banner pl eaded guilty to all four counts, including leaving the state without prior authorization. The Board revoked Mr. Banner's parole.

Mr. Banner does not argue, nor can we conclude, that the requirement he not leave Utah without prior authorization violated any federally protected rights. Since the Board lawfully revoked Mr. Banner's parol e for violation of this condition, we conclude that any complaints he had w ith the conditions placed on-4-

his parole have been rendered moot for the purposes of 28 U.S.C. § 2254. Entered for the Court

WADE BRORBY United States Circuit Judge