PUBLISH UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ ABRAHAM HAGOS, Petitioner - Appellant,

v. RICK RAEMISCH, Ex ecutive Director, Colorado Department of Corrections; JAMES FALK, Warden, Sterling Correctional Facility; CYNTHIA H. COFFMAN, Attorney General of the State of Colorado,  Respondents - Appellees. No. 14-1497

________________ _________________ APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO (D.C. No. 1:13-CV-02375-RPM)

________________ _________________ Jonathan D. Reppucci, Reppucci Law Fi rm, P.C., Denver, Colorado, appearing for Appellant. John J. Fuerst III, Senior A ssistant Attorney General, Crim inal Appeals Section (Cynthia H. Coffman, Attorney General, with him on the briefs), Office of the Attorney General for the State of Colorado, Denver, Colorado, appearing for Appellees.

________________ _________________ Before HOLMES , BALDOCK , and MATHESON , Circuit Judges.

________________ _________________

 Pursuant to Fed. R. App. P. 43(c)(2), John W. Suthers is re placed by Cynthia H. Coffman as Attorney General of the State of Colorado. FILED United States Court of Appeals Tenth Circuit 

### December 29, 2015
Elisabeth A. Shumaker Clerk of Court- 2 - MATHESON , Circuit Judge.

________________ _________________ Abraham Hagos is incarcerated in Colora do State prison for multiple convictions from two prosecutions. In the first case, he was convicted of first-degree murder, attempted first-degree murder, conspiracy to commit first-degree mu rder, and two counts of retaliation against a witness. In the second, he was convicted of first-degree kidnapping, first-degree burglary, felony me nacing, and conspiracy. He is serving two consecutive life sentences, one from each case. In a separate pending state court procee ding, Mr. Hagos is challenging his murder and related convictions from his first case. In the instant appeal, he seeks federal habeas review under 28 U.S.C. § 2254 of his kidn apping and related convictions from his second case. The district court dismissed his § 2254 application for lack of a case or controversy and granted Mr. Hagos a certificate of appeal ability (“COA”) to appeal this ruling, which he does so here.
I. BACKGROUND A. Factual Background The events leading to Mr. Hagos’s incarceration are detailed in the Colorado Supreme Court’s (“CSC”) decision in Hagos v. People , 288 P.3d 116, 117-18 (Colo. 2012), and our decision in Hagos v. Werholtz , 548 F. App’x 540, 541-43 (10th Cir. 2013) (unpublished). We do not recoun t them here because the issues raised in this appeal do not depend on them.- 3 - Mr. Hagos was convicted of different crime s in two separate trials. In this opinion, we will refer to one as “the kidnapping case” and the ot her as “the murder case.” This appeal involves our review of the district court’s dismissal of Mr. Hagos’s § 2254 application challenging his conv ictions in the kidnapping case. The Kidnapping Case 1. On December 30, 2002 , Mr. Hagos was convicted of first-degree kidnapping and other crimes. He was senten ced to life in prison without the possibility of parole. The Colorado Court of Appeals (“CCA ”) affirmed his convictions on direct appeal, and the CSC and United States Suprem e Court both denied Mr. Hagos’s petitions for a writ of certiorari. Mr. Hagos sought stat e post-conviction relief, which the district court, the CCA, and the CSC denied. In September 2013, Mr. Hagos filed a § 2254 application, seeking federal habeas review. The district court dismissed the application after concluding it did not satisfy Article III’s case or controversy requirem ent. We review the dismissal here. The Murder Case 2. On April 26, 2002, Mr. Hagos was convict ed of first-degree murder. The state court sentenced him to life in prison with out the possibility of parole, to run consecutively to the life senten ce previously imposed in the kidnapping case. Mr. Hagos is therefore serving two consecutive life sent ences without the pos sibility of parole. On direct appeal, the CCA affirmed, People v. Hagos , 250 P.3d 596 (Colo. App. 2009), and the CSC and Unite d States Supreme Court denied certiorari, Hagos v. People ,- 4 - No. 10SC192, 2010 WL 3529276, at *1 (Colo. Sept. 13, 2010); Hagos v. Colorado , 562 U.S. 1297 (2011). Mr. Hagos sought federal habeas relief in a § 2254 application, which the district court denied. Hagos v. Clements , No. 12-cv-00678-REB, 20 13 WL 674026, at *1 (D. Colo. Feb. 25, 2013). This court dismisse d the matter after denying Mr. Hagos’s request for a COA. Werholtz , 548 F. App’x at 541. The Su preme Court denied Mr. Hagos’s petition for writ of certiorari. Hagos v. Raemisch , 135 S. Ct. 340 (2014). On August 25, 2014, Mr. Ha gos moved for post-conviction relief in state court. Mr. Hagos reports this matter remains pending.
B. Procedural Background As discussed above, in September 2013, Mr. Hagos filed a § 2254 habeas petition in the kidnapping case. At that time, Mr. Hagos’s request for a COA on his § 2254 petition in the murder case was also pending befo re the Tenth Circuit. Werholtz , 548 F. App’x at 541. The District Court’s Sua Sponte Order to Show Ca use and Mr. Hagos’s 1. Response The district court sua sponte ordered Mr. Hagos to sh ow cause why the § 2254 proceedings in the kidnapping case should not be stayed pending the Tenth Circuit’s resolution of Mr. Hagos’s § 2254 application in the murder case. The order included di scussion explaining why the dist rict court was issuing it. The court relied on Peyton v. Rowe , 391 U.S. 54 (1968), and Garlotte v. Fordice , 515 U.S. 39 (1995). In those cases, the Su preme Court interpreted the “in custody”- 5 - requirement for habeas relief. The dist rict court in this case interpreted Peyton and Garlotte to provide that “i f immediate release is not gran ted, the writ must have some effect of shortening the prisoner’s time in pr ison.” App. at 206. The court also cited Mays v. Dinwiddie , 580 F.3d 1136 (10th Cir. 2009), wh ich held that a prisoner was not “in custody” for purposes of habeas review b ecause his concurrent se ntence had expired. The district court acknowledged M r. Hagos’s case was different from Peyton , Garlotte , and Mays because he is currently serving th e kidnapping sentence that he is challenging in the instant § 2254 petition while the prisoners in Peyton , Garlotte , and Mays were not currently serving the sentences they challenged. Nonetheless, the court said, “[e]ven if the Court were to invalidat e his kidnapping convicti on here, he would still unquestionably remain in custody for the rest of his life, if his murder[] convictions are upheld by the Tenth Circuit and, if it comes to it, by the U.S. Supreme Court.” App. at
208. Relying on an out-of-circuit district cour t opinion decided more than 40 years ago, Kelly v. Wingo , 313 F. Supp. 1059 (W.D. Ky. 1970), th e district court concluded that if granting habeas relief in M r. Hagos’s kidnapping case woul d not reduce the duration of his confinement or effect his immediate re lease, the habeas petition would not satisfy Article III’s case or controversy requirement. 1

1 By staying Mr. Hagos’s § 2254 petition in his kidnapping case while he sought Tenth Circuit and Supreme Court review in his § 2254 murder case, the district court implicitly recognized a case or controversy existed while the federal matter remained pending. The court did not explain why th e pending state post-conv iction relief is not similarly sufficient to mainta in a case or controversy.- 6 - Having provided the foregoing analysis, the district c ourt ordered Mr. Hagos to show cause why it should not stay the § 2254 proceedings pending the outcome of his habeas challenge to the murder conviction. In response, Mr. Hagos opposed a stay a nd argued he is “in custody” for purposes of habeas review under Peyton and Garlotte . He said the district court’s reliance on Kelly was misplaced because Peyton and Garlotte showed Kelly ’s reasoning was flawed. He also asserted his habeas petition met the cas e or controversy requi rement because he could still challenge his murder conviction in state court. It was therefore premature to conclude he would remain in custody for th e rest of his life even if the court granted habeas relief on his kidnapping conviction. He further argued hab eas relief could reduce his custody level status in state prison. The District Court Stays and Dismisses the Case 2. The district court, rejecting Mr. Hagos’s arguments, stayed the case in November 2013. In December 2013, the Tenth Circuit denied Mr. Hagos’ s request for a COA in the § 2254 murder case proceeding. Mr. Hago s petitioned the U.S. Supreme Court for certiorari, which it denied in October 2014. In light of these developments, in Novemb er 2014 the district court dismissed Mr. Hagos’s § 2254 petition in the kidnapping case fo r the reasons explained in its stay order. The court acknowledged Mr. Hagos had filed a new post-conviction relief petition in his murder case in state court, but concluded dismissal was nonetheless warranted because “[i]f he is granted postconviction relief in that case, he could file a new habeas- 7 - Application [in federal court].” App. at 290 . The court further concluded its dismissal ruling was debatable a nd granted a COA. We have jurisdiction under 28 U.S.C. §§ 1291 and 2253. Miller-El v. Cockrell , 537 U.S. 322, 335-36 (2003); Lockett v. Trammel , 711 F.3d 1218, 1230 (10th Cir. 2013). We review de novo whether Mr. Hagos was “in custody” and whether his § 2254 petition presents a case or controversy. See Mays , 580 F.3d at 1138; Rio Grande Silvery Minnow v. Bureau of Reclamation , 601 F.3d 1096, 11 09 (10th Cir. 2010).
II. DISCUSSION We reverse the district court’s orde r dismissing Mr. Hagos’s § 2254 petition because (1) he is “in custody” for his ki dnapping conviction fo r purposes of habeas review, 2 and (2) an Article III case or controvers y exists to permit the district court’s review of his § 2254 petition.
A. Mr. Hagos Is “In Custody” for His Kidnapping Conviction Mr. Hagos’s life sentence for murder is set to run cons ecutively to his life sentence for kidnapping. He satisfies the “in custody” requirement. Under 28 U.S.C. § 2254(a), federal courts “shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custod y in violation of the Constitution or laws or treaties of the United States.”

2 The district court relied on cases inte rpreting the “in custody” requirement in reaching its conclusion that Mr. Hagos’s § 22 54 petition lacked a case or controversy. For clarity and completeness, we di scuss the “in custody” requirement.- 8 - In Peyton , the Supreme Court reviewed two habeas petitions filed by prisoners serving consecutive sentences. The prison ers both sought habeas relief, not for the sentences they were serving, bu t for the sentences set to run consecutively to their present

sentences. Peyton , 391 U.S. at 55-57. Reversing McNally v. Hill , 293 U.S. 131 (1934), the Court held the prisoners satisfied the “in custod y” requirement even though they were challenging their future consecutive sentences. Peyton , 391 U.S. at 55, 67. The Peyton Court rejected McNally ’s reliance on the premise that hab eas corpus had historically been limited to cases where a favorable result for th e prisoner would “result[] in his immediate release.” Id. at 65-66 (quotation omitted); see also Walker v. Wainwright , 390 U.S. 335, 336-37 (1968) (per curiam) (questioning McNally , holding a prisoner can challenge the sentence he is currently serving even though he faces a consecutive sentence once the sentence is served, and explaini ng, “[i]t is immaterial that another prison term might still await him even if he should successfully es tablish the unconstitutiona lity of his present imprisonment”). Garlotte presented the Supreme Court with “ Peyton ’s complement, or Peyton in reverse.” 515 U.S. at 41. Mr. Garlotte wa s serving consecutive sentences and sought habeas relief for only his first conviction. Id. He had already served the full term of the challenged sentence, but it continued to affect his eligibility for parole. Id. The Court extended Peyton ’s view that a prisoner’s consecu tive sentences compose a “continuous stream,” id. , and the prisoner remains in custody fo r purposes of habeas review until all of the sentences are served, id. at 43.- 9 - Mr. Hagos’s kidnapping and murder convict ions were imposed consecutively and form a continuous stream. Under Peyton and Garlotte , Mr. Hagos is therefore in custody to seek habeas relief for any of the sent ences forming that con tinuous stream. He “remains ‘in custody’ under all of hi s sentences until all are served.” Id. at 41. The district court’s reliance on Mays v. Dinwiddie is misplaced. Mr. Mays sought habeas relief for an expired sentence he had se rved concurrently with other sentences. 580 F.3d at 1137-38. This court declined to extend Peyton ’s and Garlotte ’s continuousstream principle to Mr. Mays’s expired concurrent sentence. Id. at 1140-41. We concluded Mr. Mays was not in custody on the concurrent sentence once it expired. Id. Mays is limited to expired concurrent sentences and is inapplicable to Mr. Hagos’s nonexpired consecutive sentence.
B. Mr. Hagos’s Habeas Petition Satisfies th e Article III Case or Controversy Requirement Mr. Hagos is incarcerated based on the c onviction he seeks to challenge in the instant § 2254 petition. Such challenges sa tisfy Article III’s case or controversy requirement. 3
1. Precedent Supports Justiciability

3 It is unclear whether the district court considered the case or controversy defect to be a lack of standing or mootness. Th e doctrines are similar. “Mootness usually results when a plaintiff has standing at th e beginning of a case, but, due to intervening events, loses one of the elements of sta nding during litigation; thus, courts have sometimes described mootness as ‘the doctr ine of standing set in a time frame.’” WildEarth Guardians v. Pu b. Serv. Co. of Colo. , 690 F.3d 1174, 1182 (10th Cir. 2012) (quoting Arizonans for Official English v. Arizona , 520 U.S. 43, 68 n.22 (1997)).- 10 - The United States Constitution limits fe deral jurisdiction to “[c]ases” and “[c]ontroversies.” U.S. Const. art. III, § 2, cl. 1. To satisfy Article III’s case or controversy requirement, “a litigant must have su ffered, or be threatened with, an actual injury traceable to the defend ant and likely to be redresse d by a favorable judicial decision.” Chafin v. Chafin , 133 S. Ct. 1017, 1023 (2013 ) (quotation omitted). “This case-or-controversy requirement subsists th rough all stages of federal judicial proceedings, trial and appellate.” Lewis v. Cont’l Bank Corp. , 494 U.S. 472, 477 (1990). “[A] criminal case is moot only if it is shown that ther e is no possibility that any collateral legal consequences will be imposed on the basis of the challenged conviction.” Sibron v. New York , 392 U.S. 40, 57 (1968). The Supreme Court relied on Sibron for this principle when reviewing a habeas petition in Spencer v. Kemna , 523 U.S. 1, 8 (1998). Sibron also recognized that it is an “obvious fact of life that most criminal convictions do in fact entail adverse collateral legal consequenc es.” 392 U.S. at 55. It therefore follows, as the Court said in Spencer , that “[a]n incarcerated convic t’s (or a parolee’s) [habeas] challenge to the validity of his conviction always satisfies the cas e-or-controversy requirement, because the incarceration (or th e restriction imposed by the terms of the parole) constitutes a concrete injury, caus ed by the conviction and redressable by invalidation of the conviction.” 523 U.S. at 7 (emphasis added); accord 13C Charles Alan Wright, Arthur R. Miller, & Edward H. Cooper, Federal Practice & Procedure § 3533.4.1, at 168-69 (3d ed. 2 008) (“There is no problem w ith mootness if the [habeas] petitioner remains confined by command of th e conviction addresse d by the petition.”); Brian R. Means, Postconviction Remedies § 8:4 (2015) (“A challenge to a conviction by- 11 - an individual presently incarcerated or otherwise in custody—including parole, supervised release, or probation—satisfi es the case-or-contr oversy requirement.” (emphasis omitted)). 4 Spencer makes clear that so long as Mr. Hagos’s § 2254 petition challenges the conviction for which he is incarce rated, he satisfies the case or controversy requirement. Because he is incarcerated ba sed on the kidnapping conviction he seeks to challenge, his § 2254 petition involves a case or controversy. The Eighth Circu it’s decision in Brewer v. Iowa , 19 F.3d 1248 (8 th Cir. 1994), is on point and instructive. Mr. Brewer had be en sentenced to life in prison for seconddegree murder. Brewer , 19 F.3d at 1250. While serving that sentence, Mr. Brewer escaped from prison and committe d two more murders, was convicted of one of them, and sentenced to a second life sentence. Id. He unsuccessfully sought post-conviction relief for each conviction in state court. Id. Later, when Mr. Brewer attempted to challenge the initial murder conviction in a § 2254 petition, the St ate argued, “[Mr.] Brewer’s second life sentence . . . moots this action for habeas relief because even if he is successful here, he will still re main incarcerated for life.” Id. The Eighth Circuit rejected the State’s argument and affirmed the district court’s conclusion that the action was not

4 The district court drew on “in custody” cases ( Peyton and Garlotte ) to assess the existence of a case or controversy. The two inquiries are distinct, see Carafas v. LaVallee , 391 U.S. 234, 238 (1968), but they “are grounded upon similar policies,” Brian R. Means, Postconviction Remedies § 8:2. “[ A]s a practical matter it is clear from the cases that restrictions upon liberty sufficient to satisfy the ‘custody’ requirement in habeas corpus are substantially more severe than the burden s that will prevent questions from becoming moot.” Brian R. Mean s, Postconviction Remedies § 8:2.- 12 - moot “because a possibility exis ts that the challenged convic tion, if determined to be invalid, could cause him adve rse legal consequences.” Id. at 1250-51. The court explained, for example, that Mr. Brewer could be precluded from obtaining a commuted sentence if he has two convictions on his record rather than one. Id. If he prevailed in challenging one of the sentences via § 2 254, he would improve the possibility of a commutation of his other sentence. Id. 5
2. Pending State Post-Conviction Pr oceedings Support Justiciability Mr. Hagos presents an even clearer case or controversy than in Brewer . Because his state post-conviction petition remains pendi ng, we cannot be certain that Mr. Hagos would remain incarcerated for life if he succeeds in challenging his kidnapping conviction through federal habeas review. Although success on e ither claim might be remote, the Supreme Court “accept[s] th e most generalized and hypothetical of

5 At oral argument Mr. Hagos’s counsel stated, even if Mr. Hagos [does not successfu lly challenge his convictions in the murder case], he does have an oppor tunity to petition the Governor of Colorado for clemency or a pardon, a nd . . . however unlikely [it] might be that he’d ever be granted a pardon, it’s certainly a lot more unlikely that he’d be granted a pardon if he had two life sentences than one. Oral Arg. at 18:18-18:41. He did not raise this argument in his briefing. Although we typically do not consider issues raised for the first time at oral argument, see Frost v. Pryor , 749 F.3d 1212, 1226 n.9 (10th Cir. 2014), we “have a continuing obligation to assure ourselves that appe llate jurisdiction exists,” Chavez v. City of Albuquerque , 402 F.3d 1039, 1043 (10th Cir. 2005 ). We need not rely on this point, however, because as discussed more fully below, Mr. Hagos properly identified other adverse legal consequences stemming from his kidnapping conv iction. We nonetheless note that under the Eighth Circuit’s decisi on, Mr. Hagos’s reduced likelihood of obtaining a commuted sentence would be sufficient to satisfy the case or controversy requirement.- 13 - consequences as sufficient to avoid mootness in [habeas] challenges to [a] conviction.” Spencer , 523 U.S. at 10.
3. Adverse Legal Consequences of Co nviction Support Justiciability The district court thought Mr. Hagos’s two consecutive life sentences made his attempt to challenge one of the convictions not redressable, a nd therefore non-justiciable. But the court erred in concluding Mr. Hagos’s challenge to his conviction does not present an Article III case or controversy because his sentence is not redressable. See Sciberras v. United States , 404 F.2d 247, 248- 49 (10th Cir. 1968) (reversing district court’s dismissal of a 28 U.S. C. § 2255 petition where pris oner challenged only one of two concurrent 5-year sentence s). The district court’s vi ew of redressability is too narrow. Mr. Hagos’s challenge is redressable even if it would not hasten his release from prison because his conviction could have adverse legal consequences. Section 2254 habeas relief on Mr. Hagos’s kidnapping conviction could affect his custody level in prison. The State argues Mr. Hagos’s offender classification will never fall below level III or a level III facility base d on his murder conviction. But the State misses the point. If Mr. Hagos succeeds in challenging his kidnapping conviction, it would not be available to enhance Mr. Ha gos’s custody above level III. The custody levels in the Colorado prison system range from I to V. Colorado Department of Corrections Re gulation Number 600-01 explains the Colorado prison system has fi ve security levels. “The DOC utilizes an objective rating process to balance the assignment of offenders at the lowest custody level consistent with an objective assessment of pub lic risk, the safety of DO C employees/contract workers- 14 - and other offenders, the security needs of the offender, and the programmatic needs of the offender.” Aplt. Br., Attach. 5 at 4. At oral argument, the State conceded M r. Hagos’s convictions in the kidnapping case could be relevant to his restraint level. Oral Arg. at 20:00-20:52. Although Mr. Hagos is certain to be classified as no less than a level III prisoner based on his convictions from the murder case, he could be classified more restrictively as a level IV or V prisoner based in part on his co nvictions from the kidnapping case. The State also conceded at oral argum ent that Mr. Hagos’s kidnapping conviction could affect his eligibility for prison progra ms, such as work w ithin the prison and education programs. Id. at 21:12-21:28.
* * * * In sum, Mr. Hagos’s § 2254 petition pres ents a case or controversy. First, precedent— Sibron , Spencer , and Brewer —strongly supports that Mr. Hagos’s habeas challenge to his kidna pping conviction qualifies for Articl e III jurisdiction. Second, Mr. Hagos’s pending state post-conviction proceedin g in the murder case makes the § 2254 application in the kidnapping case a live, redr essable claim. Third, the adverse legal consequences of the kidnapping conviction on such matters as custody status and eligibility for prison programs show that Mr. Hagos’s § 2254 application satisfies the standing and mootness elements of justiciability. 6

6 As noted above, the district court relied on the West ern District of Kentucky’s 1970 decision in Kelly v. Wingo , 313 F. Supp. 1059 (W.D. Ky. 1970). Other than the district court in this case, we have not found a single judicial opinion citing to Kelly for Continued . . .- 15 - III. CONCLUSION We reverse and remand for considera tion of Mr. Hagos’s § 2254 petition.
ENTERED FOR THE COURT,

Scott M. Matheson, Jr. Circuit Judge

any proposition. A 45-year-old out- of-circuit district court opinion, Kelly is inconsistent with Supreme Court precedent cited in this opinion and its reasoning is otherwise unpersuasive.