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 dist rict court’s denial of his 28 U. S.C. § 2241 petition. Because Vaugh has fully discharged the prison senten ces that were the subject of his petition, we di smiss the appeal as moot.

I Vaughn was sentenced for crimes committed in bot h Stephens and Grady Counties, Oklahoma. In the Ste phens County cases, the state co urt sentenced Vaughn to three concurrent five- year prison terms, a concurrent fifteen-year term,

* After examining the briefs and appellate record, this panel ha s determined unanimously that oral argument would not materially assist in t he 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 ar gument. This order and judgme nt is not binding precedent, except under the doctr ines of law of the case, res j udicata, and collateral estoppel. It may be cited, howev er, for its persuasive value c onsistent with Fed. R. App. P. 32.1 a nd 10th Cir. R. 32.1. FILED United States Court of Appeals Tenth Circuit 

### December 13, 2018

Elisabeth A. Shumaker Clerk of Court2 and a consecutive twenty-year ter m. The court suspended ten ye ars of the twentyyear sentence, conditioned upon Vaughn’s successful completion of a term of probation. Therefore, Vaughn’s a ggregate Stephens County priso n sentence was twenty-five years. In the Grady County cases, the court senten ced Vaughn to consecutive ten and five-year pri son terms, and ordered that th e sentences be served concurrently with the twenty-year (ten years suspended) Stephen s County sentence. The court imposed an additional five-year sentence, but suspend ed execution of that sentence, again conditioned on Va ughn’s successful completion o f probation. While Vaughn was serving his sentences in the Oklahoma Department of Corrections (“ODOC”), the court amended the Gr ady County sentences twice to reflect that those sentences would run concurrently with the fifteen-year Stephens County sentence, making his total aggregate pr ison sentence twenty-five years. 1 Vaughn filed his § 2241 petition in September 2016, claiming he understood his plea agreement to require t hat all his prison sentences wou ld be served concurrently, meaning that he ha d an aggregate fifteen-year sen tence. He claimed

the ODOC’s execution of his sente nces violated double jeopardy principles, in part because it stopped and re-started his sentences e ach time the c ourt issued an amended Judgment and Sentence. Vaughn ma intained that his prison sente nces should have been completed in December 2015. A ccordingly, he asked the dis trict court to declare that he had fully served his prison sentences and order that he be released.

1 The court also modified the sente nce to include specific direc tions regarding credit for jail time.3 Concluding that the ODOC’s execu tion of Vaughn’s prison sentenc es was consistent with the state court orders, the dist rict court deni ed his petition. This court issued a certificate of appealab ility to consider whether the O DOC’s administration of Vaughn’s sentences violated t he Double Jeopardy Clause and w hether the district court erred in denying the pet ition without conducting an evide ntiary hearing. 2 But after discovering that Vaughn is no longer in prison, we ordere d him to show cause why his appeal should not be dism issed as moot. Vaughn concede d that he is no longer incarcerated, but claims his appeal is not moot because he is on probation as a condition of his suspended senten ces and is therefore still in custody.

II

Under Article III of the Constitu tion, federal courts may adjud icate only live

cases or controversies. Alvarez v. Smith, 558 U.S. 87, 92 (200 9). “An actual controversy must be extant at al l stages of review, not merely at the time the complaint is filed.” Id. (quotation omitte d). A case becomes moot when the party seeking relief is no longer su ffering “actual injury that can b e redressed by a favorable judicial decision.” Iron Arrow Honor Soc’y v. Heckle r, 464 U.S. 67, 70 (1983) (per curiam). Thus, a p etition challenging the executio n of a sentence becomes moot if the petitioner ha s discharged the sentence and is released from

2 We did not issue a certificate of appealability to review Vaug hn’s additional claim that the district court er red by not expressly ruling on his summary judgment motion. We nevertheless note th at, 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 judgme nt motion is also moot.4 custody. Walker v. United Stat es, 680 F.3d 1205, 1206 (10th Ci r. 2012); Rhodes v. Judiscak, 676 F.3d 931, 935 (10th Cir. 2012). As Vaughn acknowledged in his res ponse to our show cause order, he has discharged all of the prison se ntences that were the subject of his habeas petition. Accordingly, to survive the m ootness inquiry, he must demonstra te a “concrete and continuing injury” that is a co llateral consequence of the ODOC ’s allegedly improper execution of those sentences. Spe ncer v. Kemna, 523 U.S. 1, 7 (1998); see also Rhodes, 676 F.3d at 933. Vaughn argues that his appeal i s not moot because his probation ary status means he is still in custody. W e recognize that Vaughn’s proba tionary status constitutes custody for habeas purposes. See Mays v. Dinwiddie , 580 F.3d 1136, 1139 (10th Cir. 2009) ( explaining that custo dy “encompasses not only individuals subject to immediate physical imp risonment, but a lso those subj ect to restraints not shared by the public generally t hat significantly confine and r estrain freedom,” and holding that “suspende d or stayed sentence s may satisfy the cus tody 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 c ondition of a su spended sentence is in custody for habeas purposes). But the fact that Vaughn is st ill in custody does not resolve t he mootness question because he is not in cu stody on any of the now dischar ged sentences he complained about in his petition . Rather, Vaughn is on probati on as a condition of his suspended sentences. He ha s not cited any authority, nor a re we aware of any,5 suggesting that the ODOC’s allege dly improper execution of his prison sentences will affect the length of his probationary term. 3 Because we cannot shorten his probationary term or suspended se ntence to compensate for a sup posedly longer term of incarceration, Vaughn’s hab eas claims are now moot. See Rho des, 676 F.3d at 933, 935; see also United States v. Miller, 891 F.3d 1220, 1242 (10t h Cir. 2018) (dismissing as moot a c hallenge to the pro cedural reasonablenes s of a sentence where the only possible remedy would a ffect the length of the sentenc e and appellant had been released from prison); Wa lker, 680 F.3d at 1206 (dismissin g as moot appeal of denial of § 2241 petition challe nging Bureau of Prisons’ calcul ation 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 senten ce is a sentence of imprisonmen t that is suspended in whole or part, with or without probation. Okla. S tat. 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 t he sentence”). The court may revoke probation for no n-compliance and execute a sus pended sentence. Okla. Stat. tit. 22, § 991b; Tryon v. State, 423 P.3d 6 17, 648 (Okla. Crim. App. 2018). But any credit for time served cannot shorten the lengt h of Vaughn’s suspended sentence and its corre sponding probationary period. Instead, “credit for time served goes only toward dis charging that portion of the se ntence ordered executed [and] does not shorten any unexecuted portion of the s entence.” Grimes v. State, 251 P.3d 749, 753 (Okla . Crim. App. 2011). Thus, Vaughn cannot “bank” time served to shorten the term o f his probation. Id. at 753-54.