## F I L E D United States Court of Appeals Tenth Circuit 

### MAY 19 1998 

### PATRICK FISHER Clerk PUBLISH UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

DONALD ARAGON,

Petitioner-Appellant,

v. JOHN SHANKS,

Respondent-Appellee. No. 97-2106

Appeal from the United States District Court for the District of New Mexico (D.C. No. CIV-93-1455)

Submitted on the briefs: Thomas B. Jameson, Assistant Federal Public Defende r, Albuquerque, New Mexico, for Petitioner-Appellant. Tom Udall, Attorney General for the State of New Me xico, and Anthony Tupler, Assistant Attorney General, Santa Fe, New Mexico, f or Respondent-Appellee.

Before PORFILIO, LOGAN, and MURPHY, Circuit Judges.

MURPHY , Circuit Judge.1 In granting Aragon a certificate of probable cause, this court noted that the

certificate of appealability provisions of the Anti terrorism and Effective Death Penalty Act of 1996 did not apply to this case because Aragon’s petition was filed before the effective date of the Act. See United States v. Kunzman , 125 F.3d 1363, 1364 n.2 (10th Cir. 1997). -2- Donald Aragon filed the instant 28 U.S.C. § 2254 habeas corpus petition in December 1993, challenging the constitutionality of New Mexico’s application of certain meritorious and industrial good time credit s to Aragon’s term of incarceration. The district court dismissed the pe tition with prejudice, concluding that amended regulations relating to the dispensati on of good time credits did not violate the Ex Post Facto Clause and that New Mexic o had applied the good time credits in a manner consistent with the relevant st ate statutes. Aragon then moved this court for a certificate of appealability so th at he could raise the issue of good time credits on appeal. This court granted Aragon a certificate of probable cause 1 on January 28, 1998, and ordered New Mexico to file a responsive brief. After the case was ordered submitted, this court is sued an order to show cause why the case should not be dismissed on the g round of mootness. We issued the order to show cause in response to Arago n’s concession that he is no longer incarcerated. In light of Aragon’s response to the order to show cause and a review of the relevant precedent, this court dism isses the appeal as moot. A habeas corpus petition is moot when it no longer presents a case or controversy under Article III, § 2, of the Constitution. See Spencer v. Kemna , 118-3-

S. Ct. 978, 983 (1998). As noted by the Supreme Co urt, Article III’s “‘case-orcontroversy requirement subsists through all stages of federal judicial proceedings, trial and appellate . . . . The parti es must continue to have a “personal stake in the outcome” of the lawsuit.’” Id. (quoting Lewis v. Continental Bank Corp. , 494 U.S. 472, 477-78 (1990)). “This means that, throughout the litigation, the plaintiff ‘must have suffered, or be threatened with, an actual injury traceable to the defendant and lik ely to be redressed by a favorable judicial decision.’” Id. (quoting Lewis , 494 U.S. at 477). On April 7, 1988, Aragon was convicted of eleven co unts of commercial burglary, one count of receiving stolen property, and one count of felon in possession of a firearm. On May 11, 1990, the New Mexico trial court sentenced Aragon to a term of twenty seven and one-half years . Pursuant to statutory authority, the trial court suspended ten of the twe nty-seven and one-half years and ordered that Aragon serve a five-year term of p robation upon the completion of his sentence. See N.M. Stat. Ann. §§ 31-20-3, -5 (providing that NewMexico trial courts can suspend all or part of a term of i ncarceration and mandating that court impose a distinct term of probation upon susp ension of the term of incarceration). Accordingly, the ultimate judgmentof the trial court was that Aragon serve a seventeen-and-one-half-year term of imprisonment followed by a distinct five-year term of probation.2 In support of this assertion, Aragon attached to hi s response to the order to

show cause a letter from his probation officer atte sting to the fact that Aragon is currently serving the probationary term imposed by the state trial court in May of 1990.

3 Unfortunately, New Mexico did not accept this court ’s invitation to respond to the order to show cause.

4 In framing the inquiry in this fashion, we note the very limited nature of the challenge presented in Aragon’s § 2254 habeas p etition. Aragon’s challenge is limited to the duration of his term of incarceration; he raises no challenge to the fact of his incarceration. If Aragon were chal lenging the fact of his incarceration, the case would not be moot because asuccessful challenge would (continued...) -4- In his brief on appeal, Aragon informed the court that he had been released from custody sometime in 1995. In response to this court’s order to show cause why this case should not be dismissed as moot, Arag on further informed the court that he is now serving his mandatory term of probat ion 2 and asserted, without citation to relevant New Mexico case law or statute , that a favorable decision from this court would “reduce his term of probation .” 3
Our review of the relevant New Mexico statutes reve als that because Aragon is now serving his mandatory term of probati on, his term of incarceration must necessarily be complete. See N.M. Stat. Ann. § 31-20-5 (providing that an inmate’s mandatory post-incarceration term of probation begins to run only upon the completion of the term of imprisonment and any period of parole). Because Aragon’s period of incarceration is complete, this case is moot unless a favorable decision from this court would shorten the period o f his probation. 44 (...continued)

affect the fact of both his incarceration and probation. Aragon’s challenge, however, is limited to New Mexico’s application of good time credits to the duration of his term of incarceration. Accordingly , his appeal is moot unless a decision in his favor on this narrow issue would af fect the duration of his distinct probationary period. -5- Unfortunately, Aragon has not cited and this court has not discovered any cases which stand for the proposition that the leng th of a mandatory term of probation could in any way be affected by a retroac tive application of good time credits. Instead, Aragon points to several cases f or the proposition that generally a habeas corpus petition is not moot if the petitio ner is on parole, implying sub silentio that this court should treat his case similarly. The cases cited by Aragon are, however, clearly inapposite. We recognize that a habeas petition challenging the application of New Mexico good time credits is not moot if the petitioner is on parole. Under New Mexico law, a parolee is cons idered to be in the custody of the institution from which he was released and is, in essence, serving the remainder of his sentence outside of the prison wal ls as a matter of grace or
mercy. See N.M. Stat. Ann. § 31-21-10(D); Conston v. New Mexico State Bd. of Probation & Parole , 444 P.2d 296, 298 (N.M. 1968) (construing analogo us prior version of New Mexico law). Thus, credits that cou ld affect the length of a petitioner’s sentence would also necessarily affectthe length of any concomitant parole. See Brooks v. Shanks , 885 P.2d 637, 639 & n.2 (N.M 1994) (holding that-6-

habeas petition was not moot because award of good time credits would shorten petitioner’s parole). As noted above, however, Ara gon is on probation rather than parole, two distinct animals under New Mexico law. A probationary term is statutorily distinct from the term of incarceration , is served at the conclusion of the term of incarceration and any parole, is subjec t to the control of the sentencing court rather than the parole board, and, based on our reading of the relevant statutes, is not subject to the statutory provisions governing the application of good time credits to terms of incarc eration. Because Aragon has completed his term of incarcerat ion and because he has failed to identify, and this court has been unable to find, any support for his assertion that a favorable ruling on the merits wou ld affect the length of his separate and distinct probationary period, this app eal is moot. See Kemna , 118 S. Ct. at 983. The appeal is hereby DISMISSED

.