The Honorable Elmo B. Hunter, United States District Judge

1

for the Western District of Missouri.

___________

No. 95-3629

___________

Randy G. Spencer, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the

* Western District of Missouri.

Mike Kemna; *

Missouri Attorney General, *

*

Appellees. *

___________

 Submitted: May 17, 1996

 Filed: August 2, 1996

___________

Before BOWMAN, HEANEY, and WOLLMAN, Circuit Judges.

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WOLLMAN, Circuit Judge.

Randy G. Spencer appeals the district court's dismissal of his 28

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U.S.C. § 2254 petition as moot. We affirm.

I.

Spencer was convicted in Missouri state court of felony stealing and

burglary and was sentenced to concurrent terms of three years'

imprisonment. He began serving his sentences on October 17, 1990, and was

paroled on April 16, 1992. Spencer's parole was revoked on September 24,

1992, following a revocation hearing before the Missouri Board of Probation

and Parole. The Board revoked Spencer's parole based on a violation report

alleging that he had committed rape, used cocaine, and used a dangerous
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weapon.

Spencer filed this section 2254 petition on April 1, 1993, against

Mike Kemna, Superintendent of the Western Missouri Correctional Center, and

the Attorney General of Missouri (the State). The petition alleged that:

(1) Spencer was denied the right to a preliminary hearing on his parole

violations; (2) his conditional release date of October 16, 1992, was

suspended without a hearing; (3) his parole revocation hearing violated his

due process rights, in that he was denied counsel, he was not allowed to

confront adverse witnesses, and the sole evidence against him was the

violation report; and (4) he had to wait four months to receive a statement

of the reasons why his parole was revoked.

The district court ordered the State to show cause by June 3, 1993,

why Spencer's habeas relief should not be granted. The State requested and

received two extensions of time until July 7 to file a response. Spencer

objected to both motions for extensions of time, stating that the requests

for extensions were designed to vex, harass, and infringe upon his

substantive rights. The State filed a response to the show cause order on

July 7, arguing that Spencer's claims were procedurally barred, or,

alternatively, that the claims should be dismissed on their merits.

On July 14, Spencer filed a motion for final disposition of the

matter, arguing that because he could be released as early as August 7, he

would suffer irreparable harm if his petition was not decided before that

date, in that his petition would become moot and he would have no other way

to vindicate his rights. Spencer alleged that the State's motive in

requesting extensions was to cause his petition to become moot. He also

argued the merits of his petition.

Spencer was released on parole on August 7, 1993, and was discharged

from parole upon completion of his sentences on October
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16. On February 3, 1994, the district court noted Spencer's motion for

final disposition and stated that "[t]he resolution of this case will not

be delayed beyond the requirements of this Court's docket." On August 23,

1995, the district court dismissed the petition for habeas relief as moot

because the sentences had expired.

Spencer argues on appeal that the district court erred in denying his

petition as moot because the court's own delays caused the petition to

become moot, he will suffer adverse future consequences due to the denial

of the petition, and it is in the public interest to address the merits of

his petition. Spencer notes that he is currently incarcerated on unrelated

charges and that his prior parole revocation will affect his future chances

of obtaining parole.

II.

An attack on a criminal conviction is not rendered moot by the fact

that the underlying sentence has expired if substantial penalties remain

after the satisfaction of the sentence. Carafas v. LaVallee, 391 U.S. 234,

237 (1968). Such penalties include the right to engage in certain

businesses, to hold certain offices, to vote in state elections, or to

serve as a juror. Id. The court will, in fact, presume that collateral

consequences stem from a criminal conviction even after release. See

Sibron v. New York, 392 U.S. 40, 57 (1968); Leonard v. Nix, 55 F.3d 370,

373 (8th Cir. 1995). The Supreme Court has held, however, that no similar

penalties result from a finding that an individual has violated parole.

Lane v. Williams, 455 U.S. 624, 632 (1982).

In Lane, two defendants pleaded guilty to state court prosecutions

without being informed that their negotiated sentences included a mandatory

parole term. Both were released on parole and reincarcerated for parole

violations, and both filed habeas corpus
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petitions requesting their release. Both had completed their parole terms

by the time the court of appeals entered an order declaring the mandatory

parole terms void. Id. at 265-30. The Supreme Court determined that the

petitions were moot because the petitioners attacked only their sentences,

which had expired; they did not attack, either on substantive or procedural

grounds, the finding that they violated the terms of their parole. Id. at

631, 633.

The Court went on to find that, unlike a criminal conviction, no

civil disabilities result from a parole violation finding. The Court

stated that "[a]t most, certain nonstatutory consequences may occur." Id.

at 632. The Court found that the collateral consequence arising from the

possible effect of the parole revocation on future parole decisions was

"insufficient to bring this case within the doctrine of Carafas." Id. at

632 n.13. Relying on the relevant Illinois law, the Court noted that the

existence of a prior parole violation did not render an individual

ineligible for parole, but was simply one factor among many considered by

the parole board. Id. at 633 n.13.

We have dismissed a habeas corpus appeal challenging a parole

revocation for lack of jurisdiction as moot when the movant was again

paroled before the case was orally argued. Watts v. Petrovsky, 757 F.2d

964, 965-66 (8th Cir. 1985) (per curiam). We considered as too speculative

to overcome mootness the argument that the movant's parole could once again

be revoked and the prior parole revocation report used against him. Id.

at 966.

Spencer first attempts to distinguish Lane on the ground that, unlike

the petitioners in that case, he attacked not only his sentence, but also

the underlying basis of his parole violations. This distinction has been

used by courts of appeals in other circuits to overcome mootness in the

parole revocation context. See United States v. Parker, 952 F.2d 31, 33

(2d Cir. 1991);
 The Missouri statute concerning parole provides, in relevant 2

part:

When in its opinion there is reasonable probability that

an offender of a correctional center can be released

without detriment to the community or to himself, the

board may in its discretion release or parole such person

except as otherwise prohibited by law.

Mo. Rev. Stat. § 217.690.1 (1994).

In addition, the statute provides that "[t]he Board shall

adopt rules . . . with respect to the eligibility of offenders for

parole." Mo. Rev. Stat. § 217.690.3 (1994).

Pursuant to this section, the board has adopted regulations

stating that the reasons for its decisions to deny parole include:

1. Release at this time would depreciate the

seriousness of the offense committed or promote

disrespect for the law;

2. There does not appear to be a reasonable

probability at this time that the inmate would live

and remain at liberty without violating the law;

3. The inmate has not substantially observed the rules

of the institution in which confined; and

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Robbins v. Christianson, 904 F.2d 492, 495-96 (9th Cir. 1990). It must be

recognized, however, that the Court in Lane went on to hold that the

possible collateral consequences in future parole hearings stemming from

a finding of parole violation are insufficient to overcome mootness. Lane,

455 U.S. at 632-33 & n.13. This part of the Court's holding Spencer cannot

overcome.

Spencer attempts to further distinguish Lane on the ground that it

relies on Illinois, rather than Missouri, law. We find this purported

distinction unpersuasive. The Illinois regulations relied upon in Lane

explicitly provided that the parole board should consider an individual's

prior parole violations as a factor in determining whether parole should

be granted. Lane, 455 U.S. at 639 (Marshall, J., dissenting). Under

Missouri statutes and regulations, the Board does not explicitly rely on

a prior parole violation even as one factor in its decision regarding

whether to grant parole. Lane's holding, therefore, is even more

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4. Release at this time is not in the best interest of

society.

Mo. Code Regs. tit. 14, § 80-2.010(9)(A) (1992).

The regulations explicitly state that a parole violator "can

be considered for parole at a later time." Mo. Code Regs. tit. 14,

§ 80-4.030(4) (1992).

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applicable
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to a case arising under Missouri law.

Spencer finally attempts to distinguish his case from both Lane and

Watts on the ground that the collateral consequences of his parole

revocation are not speculative as to him, in that he is once again

incarcerated and is facing new parole hearings. Although Spencer's

possible collateral consequences are not as speculative as those in Watts,

757 F.2d at 966, we conclude that they remain too speculative to overcome

a finding of mootness. Given the Board's wide discretion in releasing a

prisoner on parole, we cannot say that the Board will rely on Spencer's

previous parole violation in making its decision. Moreover, Spencer placed

himself in his present position, in which collateral consequences stemming

from his parole revocation become more likely. As noted of the petitioners

in Lane, Spencer was "able--and indeed required by law--to prevent such a

possibility from occurring." Lane, 455 U.S. at 633 n.13.

III.

Spencer argues that his action should not be dismissed as moot

because the important public interest in due process in parole revocation

proceedings excepts his case from the mootness doctrine. He argues that

because of the important public interest, he need not show that he will be

personally affected by the outcome.

To be excepted from the mootness doctrine, the matter must be
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"`capable of repetition, yet evading review,'" and there must be "`a

reasonable expectation that the complaining party would be subjected to the

same action again.'" Lane, 455 U.S. at 633-34 (quoted citations omitted);

see also DeFunis v. Odegaard, 416 U.S. 312, 316 (1974) (per curiam)

(although state law may save case from mootness based on public interest,

federal courts require litigants' rights be affected). Spencer must show

a "reasonable likelihood" that he will be affected by the Board's allegedly

unconstitutional parole revocation procedures in the future. See Honig v.

Doe, 484 U.S. 305, 318 (1988). "[A] mere physical or theoretical

possibility" is insufficient to satisfy the test. Murphy v. Hunt, 455 U.S.

478, 482 (1982).

We do not find a reasonable likelihood that Spencer will again be

affected by the Board's parole revocation procedures. Assuming that

Spencer is paroled from his present incarceration, we will not assume that

he will violate his parole terms in order to again undergo revocation

proceedings. See Honig, 484 U.S. at 320 (generally unwilling to assume

party will repeat misconduct). 

The order of dismissal is affirmed.

HEANEY, Circuit Judge, concurring.

I concur in the result reached by the majority only because I agree

we are bound by the United States Supreme Court's decision in Lane v.

Williams, 455 U.S. 624 (1982). Were I writing on a clean slate, I would

reverse the district court because it seems clear that Spencer may suffer

collateral consequences as a result of the revocation of his parole. 

It is unfortunate that the decision on whether the revocation hearing

comported with due process was delayed for so long that the matter became

moot by Spencer's release from prison. If nothing else, this case

highlights the necessity of making prompt decisions
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in revocation cases.

A true copy.

Attest:

CLERK, U. S. COURT OF APPEALS, EIGHTH CIRCUIT.