UNITED STATES COURT OF APPEALS 

FOR THE TENTH CIRCUIT 

_________________________________ 

GREGORY DAVID VAUGHN, 

 Petitioner - Appellant, 

v. 

KEN KLINGER, Warden, 

 Respondent - Appellee. 

No. 18-7008 

(D.C. No. 6:16-CV-00425-RAW-KEW) 

(E.D. Okla.) 

_________________________________ 

ORDER AND JUDGMENT*

_________________________________ 

Before LUCERO, KELLY, and PHILLIPS, Circuit Judges. 

_________________________________ 

Gregory Vaughn appeals the district court’s denial of his 28 U.S.C. § 2241 

petition. Because Vaugh has fully discharged the prison sentences that were the 

subject of his petition, we dismiss the appeal as moot. 

I 

Vaughn was sentenced for crimes committed in both Stephens and Grady 

Counties, Oklahoma. In the Stephens County cases, the state court sentenced 

Vaughn to three concurrent five-year prison terms, a concurrent fifteen-year term, 

 * After examining the briefs and appellate record, this panel has determined 

unanimously that oral argument would not materially assist in the determination of 

this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore 

ordered submitted without oral argument. This order and judgment is not binding 

precedent, except under the doctrines of law of the case, res judicata, and collateral 

estoppel. It may be cited, however, for its persuasive value consistent with 

Fed. R. App. P. 32.1 and 10th Cir. R. 32.1. 

FILED 

United States Court of Appeals 

Tenth Circuit 

December 13, 2018

Elisabeth A. Shumaker 

Clerk of Court
2 

and a consecutive twenty-year term. The court suspended ten years of the twentyyear sentence, conditioned upon Vaughn’s successful completion of a term of 

probation. Therefore, Vaughn’s aggregate Stephens County prison sentence was 

twenty-five years. In the Grady County cases, the court sentenced Vaughn to 

consecutive ten and five-year prison terms, and ordered that the sentences be served 

concurrently with the twenty-year (ten years suspended) Stephens County sentence. 

The court imposed an additional five-year sentence, but suspended execution of that 

sentence, again conditioned on Vaughn’s successful completion of probation. While 

Vaughn was serving his sentences in the Oklahoma Department of Corrections 

(“ODOC”), the court amended the Grady County sentences twice to reflect that those 

sentences would run concurrently with the fifteen-year Stephens County sentence, 

making his total aggregate prison sentence twenty-five years.1

 

Vaughn filed his § 2241 petition in September 2016, claiming he understood 

his plea agreement to require that all his prison sentences would be served 

concurrently, meaning that he had an aggregate fifteen-year sentence. He claimed 

the ODOC’s execution of his sentences violated double jeopardy principles, in part 

because it stopped and re-started his sentences each time the court issued an amended 

Judgment and Sentence. Vaughn maintained that his prison sentences should have 

been completed in December 2015. Accordingly, he asked the district court to 

declare that he had fully served his prison sentences and order that he be released. 

 1

 The court also modified the sentence to include specific directions regarding 

credit for jail time. 
3 

Concluding that the ODOC’s execution of Vaughn’s prison sentences was 

consistent with the state court orders, the district court denied his petition. This court 

issued a certificate of appealability to consider whether the ODOC’s administration 

of Vaughn’s sentences violated the Double Jeopardy Clause and whether the district 

court erred in denying the petition without conducting an evidentiary hearing.2

 But 

after discovering that Vaughn is no longer in prison, we ordered him to show cause 

why his appeal should not be dismissed as moot. Vaughn conceded that he is no 

longer incarcerated, but claims his appeal is not moot because he is on probation as a 

condition of his suspended sentences and is therefore still in custody. 

II 

Under Article III of the Constitution, federal courts may adjudicate only live 

cases or controversies. Alvarez v. Smith, 558 U.S. 87, 92 (2009). “An actual 

controversy must be extant at all stages of review, not merely at the time the 

complaint is filed.” Id. (quotation omitted). A case becomes moot when the party 

seeking relief is no longer suffering “actual injury that can be redressed by a 

favorable judicial decision.” Iron Arrow Honor Soc’y v. Heckler, 464 U.S. 67, 70 

(1983) (per curiam). Thus, a petition challenging the execution of a sentence 

becomes moot if the petitioner has discharged the sentence and is released from 

 2

 We did not issue a certificate of appealability to review Vaughn’s additional 

claim that the district court erred by not expressly ruling on his summary judgment 

motion. We nevertheless note that, in light of our conclusion that Vaughn’s appeal of 

the order denying the petition is moot, his argument regarding the court’s failure to 

rule on the summary judgment motion is also moot. 
4 

custody. Walker v. United States, 680 F.3d 1205, 1206 (10th Cir. 2012); Rhodes v. 

Judiscak, 676 F.3d 931, 935 (10th Cir. 2012). 

As Vaughn acknowledged in his response to our show cause order, he has 

discharged all of the prison sentences that were the subject of his habeas petition. 

Accordingly, to survive the mootness inquiry, he must demonstrate a “concrete and 

continuing injury” that is a collateral consequence of the ODOC’s allegedly improper 

execution of those sentences. Spencer v. Kemna, 523 U.S. 1, 7 (1998); see also

Rhodes, 676 F.3d at 933. 

Vaughn argues that his appeal is not moot because his probationary status 

means he is still in custody. We recognize that Vaughn’s probationary status 

constitutes custody for habeas purposes. See Mays v. Dinwiddie, 580 F.3d 1136, 

1139 (10th Cir. 2009) (explaining that custody “encompasses not only individuals 

subject to immediate physical imprisonment, but also those subject to restraints not 

shared by the public generally that significantly confine and restrain freedom,” and 

holding that “suspended or stayed sentences may satisfy the custody requirement”); 

United States ex rel. Wojtycha v. Hopkins, 517 F.2d 420, 423-24 (3d Cir. 1975) 

(holding that a person serving probation as a condition of a suspended sentence is in 

custody for habeas purposes). 

But the fact that Vaughn is still in custody does not resolve the mootness 

question because he is not in custody on any of the now discharged sentences he 

complained about in his petition. Rather, Vaughn is on probation as a condition of 

his suspended sentences. He has not cited any authority, nor are we aware of any, 
5 

suggesting that the ODOC’s allegedly improper execution of his prison sentences 

will affect the length of his probationary term.3

 Because we cannot shorten his 

probationary term or suspended sentence to compensate for a supposedly longer term 

of incarceration, Vaughn’s habeas claims are now moot. See Rhodes, 676 F.3d at 

933, 935; see also United States v. Miller, 891 F.3d 1220, 1242 (10th Cir. 2018) 

(dismissing as moot a challenge to the procedural reasonableness of a sentence where 

the only possible remedy would affect the length of the sentence and appellant had 

been released from prison); Walker, 680 F.3d at 1206 (dismissing as moot appeal of 

denial of § 2241 petition challenging Bureau of Prisons’ calculation of sentences 

because petitioner had been released from prison).

III 

The appeal is DISMISSED as moot. 

Entered for the Court 

Carlos F. Lucero 

Circuit Judge 

 3

 In Oklahoma, a suspended sentence is a sentence of imprisonment that is 

suspended in whole or part, with or without probation. Okla. Stat. tit. 22, 

§ 991a(A)(1); Hemphill v. State, 954 P.2d 148, 150 (Okla. Crim. App. 1998) (a 

suspension order is “a condition placed upon the execution of the sentence”). The 

court may revoke probation for non-compliance and execute a suspended sentence. 

Okla. Stat. tit. 22, § 991b; Tryon v. State, 423 P.3d 617, 648 (Okla. Crim. App. 

2018). But any credit for time served cannot shorten the length of Vaughn’s 

suspended sentence and its corresponding probationary period. Instead, “credit for 

time served goes only toward discharging that portion of the sentence ordered 

executed [and] does not shorten any unexecuted portion of the sentence.” Grimes v. 

State, 251 P.3d 749, 753 (Okla. Crim. App. 2011). Thus, Vaughn cannot “bank” time 

served to shorten the term of his probation. Id. at 753-54.