### The Honorable Elmo B. Hunter, United States District Judg e 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.

___________ WOLLMAN, Circuit Judge.
Randy G. Spencer appeals the district court's dismissal of his 2 8 1 U.S.C. § 2254 petition as moot. We affirm.

I. Spencer was convicted in Missouri st ate court of felony stealing and burgla ry 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 Spencer's parole was revoked on September 24, 1992, following a revocation hearing before the Missouri Board of Probatio n and Parole. The Board revoked Spencer's parole based on a violation repor t 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, agains t Mike Kemna, Superintendent of the Western Missouri Correctional Center, an d the Attorney General of Missouri (the State). The petition alleged that: (1) Spenc er was denied the right to a preliminary hearing on his parol e violati ons; (2) his conditional release date of October 16, 1992, wa s suspended without a hearing; (3) his parole revocation hearing violated hi s due process rights, in that he was denied counsel, he was not allowed to confron t adverse witnesses, and the sole evidence against him was th e violation report; and (4) he had to wait four months to receive a statemen t of the reasons why his parole was revoked.
The distr ict court ordered the State to show cause by June 3, 1993, why Spencer's habeas relief should not be granted. The State requested an d received two extensio ns of time until July 7 to file a response. Spencer objected to both motions for extensions of time, stating that the requests for exte nsions were designed to vex, harass, and infringe upon hi s 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 th e matter, arguing that because he could be release d as early as August 7, he would suffer irrepara ble harm if his petition was not decided before that date, in that his petition would become moot and he would have no other wa y to v indicate his rights. Spencer alleged that the State's motive i n requesting extensions was to cause his petition to become moot. He also argued the merits of his petition.
Spencer was released on parole on Au gust 7, 1993, and was discharged from parole upon completion of his sentences on October

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16. On F ebruary 3, 1994, the district court noted Spencer's motion fo r 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 co urt dismissed the petition for habeas relief as moot because the sentences had expired. Spencer argues on appeal that the district court erred in denyi ng his petit ion as moot because the court's own delays caused the petition t o become moot, he will suffer adverse future consequences due to the denial of the petition, and it is in the public interes t to address the merits of his petition. Spencer notes that he is currently incarcerated on unrelate d charges and that his prior parole revocation will affect his future chance s 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 certai n busin esses, to hold certain offices, to vote in state elections, or t o serve as a juror. Id. The court will, in fact, presume that collateral consequ ences stem from a criminal conviction even after release. Se e 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 pen alties 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 prosecution s without being informed that their negotiated sentences included a mandator y 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 co mpleted their parole terms by the time the court of appeals entered an order declaring the mandatory parole terms void. I d. at 265-30. The Supreme Court determined that the petitions were moot because the petitioners atta cked only their sentences, which had expired; they did not attack, either on substantive or procedura l grounds, the finding that they violated the term s of their parole. Id. at 631, 633.

The Co urt went on to find that, unlike a criminal conviction, n o civil d isabilities result from a parole violation finding. The Cour t stated that "[a]t most, certain nonstatutory con sequences may occur." Id. at 632. The Court fo und that the collateral consequence arising from the pos sible effect of the parole revocation on future parole decisions wa s "insufficient to brin g this case within the doctrine of Carafas ." Id. at 632 n.13. Relying onthe relevant Illinois law, the Court noted that the existenc e of a prior parole violation did not render an individua l 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 parol e revocation for lack of jurisdiction as moot when the movant was agai n 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 speculativ e to overcome mootness the argument that the movant's parole could once agai n 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 th at case, he attacked not only his sentence, but also the underlying basis of his parole violations. This distinction has been used by c ourts of appeals in other circuits to overcome mootness in th e parole revocation context. See United States v. Parker , 952 F.2d 31, 33 (2d Cir. 1991);

### The Missour i statute concerning parole provides, in relevant 2 

### part: When in its opinion there is r easonable probability that an offender of a correctional center can be release d with out detriment to the community or to himself, th e board may in its discretion release or parole such perso n except as otherwise prohibited by law. Mo. Rev. Stat. § 217.690.1 (1994). In addition, the statute provides that "[t]he Board shal l adopt rules . . . with respect to the eligibility of offenders for parole." Mo. Rev. Stat. § 217.690.3 (1994). Pursua nt to this section, the board has adopted regulation s stating that the reasons for i ts decisions to deny parole include: 1. Release at this time would depreciate th e seriousness of the offense committed or promot e disrespect for the law; 2. There does not appear to be a reasonabl e probability at this time that the inmate would live and remain at liberty without violating the law; 3. The inmate has not substantial ly observed the rules of the institution in which confined; and -5- Robbins v. Christianson , 904 F.2d 492, 495-96 (9 th Cir. 1990). It must be recogn ized, however, that the Court in Lane went on to hold that th e 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 canno t overcome.
Spencer attempts to further distinguish Lane on the ground that i t relie s on Illinois, rather than Missouri, law. We find this purporte d distin ction unpersuasive. The Illinois regulations relied upon in Lan e explicitly provided t hat 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). Unde r Missouri statutes and regulations, the Board does not explicitly rely on
a prior pa role violation even as one factor in its decision regardin g whether t o grant parole. Lane 's holding, therefore, is even mor e 2

### 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. t it. 14, § 80-4.030(4) (1992). -6- applicable

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to a case arising under Missouri law.
Spencer f inally attempts to distinguish his case from both Lane and Watts on the ground that the collateral consequences of his parol e revocation are not speculative as to him, in that he is once agai n incarc erated and is facing new parole hearings. Although Spencer' s possible collateral consequences are not as spec ulative as those in Watts , 757 F.2d at 966, we c onclude 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 place d himself in his present position, in which collat eral consequences stemming from his parole revocation become more likely. As noted of the petitioner s 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.
Spence r argues that his action should not be dismissed as moo t 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 nee d 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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"`ca pable of repetition, yet evading review,'" and there must be "` a reasonable expectation that the complaining party would be subjected to th e 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 m ay save case from mootness based on public interest, federal courts requir e litigants' rights be affected). Spencer must show
a "reasonable likelihood" that he will be affected by the Board's allegedl y unconstitutional parole revocation procedures in the future. See Honig v. Doe , 484 U.S. 305, 318 (1988). "[A] mere physical or theoretica l 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 b e affect ed by the Board's parole revocation procedures. Assuming tha t Spencer is paroled from his present incarceratio n, we will not assume that he will vi olate his parole terms in order to again undergo revocatio n proceedings. See Honig , 484 U.S. at 320 (generally unwilling to assum e 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 h earing comported with due pr ocess was delayed for so long that the matter became moo t by Spencer's release from prison. If nothing else, this cas e 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.