UNITED STATES COURT OF APPEALS 

 TENTH CIRCUIT 

RICHARD G. KIRBY, 

Petitioner-Appellant, 

v. 

JAMES JANECKA, Warden; 

GARY K. KING, Attorney General for 

the State of New Mexico 

Respondents-Appellees. 

No. 09-2097 

(D.C. No. 1:08-cv-00886) 

(D. N.M.) 

 

ORDER AND JUDGMENT*

Before, HARTZ, EBEL, and O’BRIEN, Circuit Judges. 

Petitioner Richard G. Kirby is a pro se litigant who appeals the district court’s 

dismissal without prejudice of his 28 U.S.C. § 2254 petition for a writ of habeas corpus. 

Kirby’s § 2254 petition raised nine claims for relief related to a New Mexico fraud 

conviction. Upon the recommendation of a magistrate judge, the district court dismissed 

Kirby’s habeas petition because it contained both exhausted and unexhausted claims. We 

granted Kirby a certificate of appealability because some of the claims deemed 

 

*

 After examining appellant=s brief and the appellate record, this panel has determined 

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

appeal. See Fed. R. App. P. 34(a)(2) and 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 

May 25, 2010 

Elisabeth A. Shumaker 

Clerk of Court

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unexhausted by the district court (Claim Nos. 6, 8, and 9) appeared to have been 

exhausted. For the reasons discussed below, we reverse the district court’s order and 

remand for further proceedings consistent with this order and judgment. 

DISCUSSION 

Kirby was convicted in a New Mexico state court on fraud-related charges and 

received a five-year prison sentence. In September 2008, while in custody for the fraud 

conviction, Kirby filed his habeas petition. Since the filing of that petition, however, 

Kirby has completed his New Mexico sentence and been extradited to Kansas for an 

unrelated offense. 

A. The Justiciability of Kirby’s § 2254 Claims 

Kirby’s § 2254 petition raises several claims that clearly are not cognizable under 

a § 2254 petition or that have been rendered moot by his release from custody for the 

conviction challenged. As two of those claims were ones deemed unexhausted by the 

district court, we will eliminate those claims from the petition before proceeding to 

address whether the district court correctly found certain claims unexhausted, an 

approach we hope will also reduce the district court’s burden on remand. 

Section 2254 authorizes federal courts to review habeas petitions only if the 

petitioner’s claims satisfy both a status and a substance requirement. The status 

requirement mandates that the petitioner raise his claims while he is in custody, and the 

substance requirement mandates that those claims assert a right to release from that 

custody on federal law grounds. See 28 U.S.C. § 2254 (providing that a “court shall 

entertain an application for a writ of habeas corpus in behalf of a person in custody 

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pursuant to the judgment of a State court only on the ground that he is in custody in 

violation of the Constitution or laws or treaties of the United States”) (emphasis added); 

see also Triplet v. Franklin, No. 06-6247, 2010 WL 409333, (10th Cir. 2010) 

(unpublished) (“Federal habeas corpus relief under § 2254 does not lie to correct mere 

errors of state law.”); McCormick v. Kline 572 F.3d 841, 847-848 (10th Cir. 2009) 

(“Section 2254’s in custody requirement is jurisdictional”); Mays v. Dinwiddie, 580 F.3d 

1136, 1139 (10th Cir. 2009) (explaining that a petitioner satisfies the status portion of the 

custody requirement if he is in custody “at the time the habeas action is filed”). 

Kirby’s petition and all of its claims have satisfied the status requirement because 

they were filed while he was in custody for the fraud conviction; however, Kirby’s eighth 

claim fails to satisfy the substance requirement. This claim challenges only the validity 

of the state court’s restitution order, not his custody.1

 Cf. Erlandson v. Northglenn 

Municipal Court, 528 F.3d 785, 788 (10th Cir. 2008) (explaining that “the payment of a 

restitution or a fine, absent more” is not cognizable under § 2254).2

 

 

1

 The district court also characterized Kirby’s second claim as a challenge to the 

restitution order. Upon reviewing Kirby’s petition, however, his second claim appears to 

challenge the sufficiency of the evidence to establish an element of his conviction. At 

this point, therefore, we decline to excise Kirby’s second claim for failure to challenge 

his custody. 

2

 Kirby has conceded that his ninth claim is moot. (See Pet. Op. Bf. at 2 (“[T]he bond 

issue is moot as the term of imprisonment is served . . . .) We agree with and accept that 

concession, and, therefore, we need not address whether it was even cognizable under 

§ 2254 in the first place, though we have doubts as it appears to be a purely state-law 

based challenge to the denial of bond pending resolution of his state habeas petition. 

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Additionally, even if a petitioner’s claims satisfy both the status and substance 

requirements, those claims may nonetheless become moot if, as here, the petitioner has 

completed his sentence for the conviction challenged. See Spencer v. Kemna, 523 U.S. 

1, 7-8 (1998). The claims will become moot upon the petitioner’s release from custody 

unless the petitioner establishes that “sufficient collateral consequences flow from the 

underlying judgment and the completed sentence to save the appeal from mootness.” 

United States v. Meyers, 200 F.3d 715, 718 (10th Cir. 2000); see also United States v. 

Hernandez-Baide, 146 Fed. Appx. 302, 304 (10th Cir. 2005) (unpublished) (explaining 

that petitioner bears the burden of proving sufficient collateral consequences). However, 

claims challenging the underlying conviction are presumed to have sufficient collateral 

consequences. See Spencer, 523 U.S. at 8 (“In recent decades we have been willing to 

presume that a wrongful conviction has continuing collateral consequences . . . .); see 

also Meyers, 200 F.3d at 718 (explaining that “there is a presumption of sufficient 

collateral consequences” where the petitioner’s claims challenge the underlying 

conviction). 

With the exception of Kirby’s third and ninth claims, Kirby’s remaining claims 

challenge his underlying conviction and are therefore entitled to the presumption that a 

live controversy exists. As already noted, however, Kirby has conceded his ninth claim 

is moot. Additionally, Kirby’s third claim is moot because it challenges only the state 

court’s enhancement of his already-completed sentence, and Kirby has failed to show any 

continuing collateral consequences stemming from that enhancement. See Lucero v. 

McKune, 340 Fed. Appx. 442, 444 (10th Cir. 2009) (unpublished) (finding moot the 

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petitioner’s mere allegation that his already-completed sentences were unlawfully 

enhanced). 

Thus, having excised Claim Nos. 3, 8, and 9 from Kirby’s petition, we are left 

with only Claim Nos. 1, 2, 4, 5, 6, and 7. 

B. Exhaustion 

Of Kirby’s six remaining claims, the district court found all of Kirby’s claims 

exhausted, with the exception of Claim No. 6. As a prerequisite to consideration of his 

claims on the merits, a petitioner must first show he “exhausted the remedies available in 

the courts of the State,” 28 U.S.C. § 2254(b)(1)(A), which requires the petitioner to have 

provided “the state courts a fair opportunity to address the claim,” Johnson v. Champion, 

288 F.3d 1215, 1224 (10th Cir. 2002). 

In granting the certificate of appealability in this case, we noted that Claim No. 6 

appeared to have been exhausted. Respondents now concede that Kirby exhausted Claim 

No. 6. As we perceive no reason to reject that concession, we accept it and conclude that 

Claim No. 6 was exhausted. 

C. Conclusion 

Because we excised several of Kirby’s claims for lack of jurisdiction to review 

them, including Claim Nos. 8 and 9, and because we have found Kirby’s sixth claim 

exhausted, Kirby’s petition no longer presents both exhausted and unexhausted claims. 

Therefore, we REVERSE the district court’s order dismissing Kirby’s petition and 

REMAND the case to the district court for consideration of the remaining claims in 

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Kirby’s petition. 

 Entered for the Court 

 David M. Ebel 

 Circuit Judge 

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