United States Court of Appeals

for the Fifth Circuit

No. 20-10841

Lonnie L. Foster, 

Petitioner—Appellant,

versus

NFN Warden, Federal Detention Center, Seagoville; 

United States Parole Commission; Mansfield Law 

Enforcement Center, 

Respondents—Appellees.

Appeal from the United States District Court 

for the Northern District of Texas

No. 3:20-CV-389

Before Dennis, Southwick, and Wilson, Circuit Judges.

Leslie H. Southwick, Circuit Judge:

This appeal presents a question of mootness. A former military 

prisoner, while serving a term of supervised release, violated a condition of 

his supervision. After being arrested and while being detained, he brought 

the current lawsuit and claimed that the condition was unconstitutional. He 

has been released, and his term of supervision has ended. He continues this 

suit in part because he has been denied all veterans’ benefits due to the 

violation of a condition of supervision. Our issue is whether the denial of the 

United States Court of Appeals

Fifth Circuit

FILED

April 13, 2022

Lyle W. Cayce

Clerk

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benefits is a collateral consequence sufficient to avoid finding his claim to be 

moot now that he has completed his term of supervision. We conclude that 

it may be, but there was no development of that issue in district court. We

therefore VACATE and REMAND to the district court for further 

proceedings.

FACTUAL AND PROCEDURAL BACKGROUND

In 2006, Lonnie Foster was a staff sergeant in the United States Army 

stationed at Fort Hood, Texas. He was convicted that year by a general 

court-martial of sex crimes and sentenced to 15 years in a military prison. 

After serving nine years in the prison at Fort Leavenworth, Kansas, he was 

released and made subject to a six-year period of parole. A requirement of 

his parole seems to have been participation in sex-offender group treatment.

Foster has claimed that this condition was unconstitutionally imposed 

upon his release by a civilian parole commission and not by the court-martial 

that sentenced him. He has also claimed that the condition violates his Fifth 

Amendment right against self-incrimination. The record does not contain 

any evidence of the Army’s consideration of granting parole or supervised 

release to Foster. His supervision has been by a civilian probation office.

Foster apparently was not a compliant participant in some of his group 

treatment, and his probation officer recommended that a warrant issue for 

his arrest. Foster was arrested and jailed for parole violations.

While detained, Foster filed a claim under 28 U.S.C. § 2241 in the 

United States District Court, Northern District of Texas. He challenged the 

imposition of the group treatment condition, his confinement, and the 

deprivation of his due process rights.1 He sought the appointment of counsel 

1 A Section 2241 application is the proper pleading for challenging the manner in 

which a sentence is being executed. See United States v. Cleto, 956 F.2d 83, 84 (5th Cir. 

1992). Typically, filing a Section 2255 motion in the court of conviction is the means for 

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to press his claim.

2 By the time the magistrate judge issued a report and 

recommendation on the claim, Foster had been released. Because Foster was 

no longer detained, the magistrate judge recommended Foster’s claims be 

dismissed as moot. The magistrate judge also terminated Foster’s motion to 

appoint counsel as moot.

Foster objected to the magistrate judge’s report and 

recommendations. Foster argued that the case was not moot because his 

violation of the group treatment condition, which he argued was

unconstitutional, resulted in the termination of his Veterans Administration 

(“VA”) benefits in May 2020. The district court, though, concluded that 

the case was moot, stating: “The alleged Constitutional violations do not 

concern the fact and duration of confinement and so are not cognizable in this 

habeas corpus action.” Foster appealed.

Our understanding of the case is complicated by the fact that the suit 

was dismissed without the district court’s requiring a response from the 

government. Thus, factual details and legal argument come almost 

exclusively from Foster. We are remanding, and a response from the 

government should be ordered.

challenging a conviction or the revocation of a term of supervised release. See Cox v. 

Warden, 911 F.2d 1111, 1113 (5th Cir. 1990). A military court-martial, though, i.e., the court 

consisting of other military servicemembers, is disbanded at the end of the prosecution, 

leaving a petitioner no court of conviction in which to file a Section 2255 motion. See 

Fletcher v. Outlaw, 578 F.3d 274, 276 (5th Cir. 2009). Consequently, a Section 2241 

application filed in federal district courts has been recognized as the means for contesting 

a military conviction. Id. Section 2241 also provides the means to challenge a decision by 

the United States Parole Commission. See Cox, 911 F.2d at 1114. Foster also sought relief 

for civil rights violations under the Prison Rape Elimination Act. That claim was severed 

and is not before this court. 

2 After his arrest and detention, Foster received appointed counsel in relation to 

his parole violation. Counsel has not been appointed in the present case.

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DISCUSSION

Mootness deprives a court of jurisdiction. See Rocky v. King, 900 F.2d 

864, 866 (5th Cir. 1990). A district court’s determination of mootness is 

reviewed de novo. DeMoss v. Crain, 636 F.3d 145, 150 (5th Cir. 2011). “A 

claim is moot when the parties are no longer adverse parties with sufficient 

legal interests to maintain the litigation.” Id. (quotation marks and citation 

omitted). “In criminal cases . . . a defendant wishing to continue his appeals 

after the expiration of his sentence must suffer some ‘continuing injury’ or 

‘collateral consequence’ sufficient to satisfy Article III.” United States v. 

Juvenile Male, 564 U.S. 932, 936 (2011). When the defendant challenges an 

expired sentence, the defendant bears the burden of identifying an ongoing 

collateral consequence that can be traced to the challenged sentence and that 

a favorable decision will likely redress. Id.

Some of Foster’s claims are in fact moot. The period Foster was 

required to be under supervised release has now expired. Foster is also no 

longer detained, though he was incarcerated for a time due to the alleged 

failure to participate properly in the treatment program. It is unclear from 

the record before us whether formal revocation proceedings occurred. 

Foster alleges various grounds for finding the imposition of the 

condition unconstitutional, but his filings largely focus on two theories. First, 

Foster argues that the condition is unconstitutional because it was imposed

by the United States Parole Commission upon his release in 2015, not by the 

court-martial at the time of his sentencing in 2006. It appears that parole 

conditions are often — if not always — set by the Army Clemency and Parole 

Board when a prisoner is being considered for release, not by the courtmartial at the time of conviction and initial sentencing. See Army Reg. 15–

130, Army Clemency and Parole Board, ¶ 2-2 (19 Nov. 2018). Military 

offenders who are paroled are supervised by the United States Probation 

Office, not by a military office. See id. at ¶¶ 3-2, 3-3. Our discovery of what 

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Army Regulations permit does not reveal what actually occurred as to Foster,

nor does it address whether the condition was constitutionally imposed. 

Second, Foster insists that the condition itself was unconstitutional 

because successfully completing the group treatment sessions required an 

admission of guilt. Foster claims that this violated his Fifth Amendment right 

against self-incrimination, and he refused to admit guilt so that he could 

pursue a writ of coram nobis to establish his innocence.

At this stage, we consider only mootness. Foster argues that his

claims remain viable because of collateral consequences resulting from his 

alleged violation of the special condition. The Department of Veterans 

Affairs notified him that his benefits were terminated because he was a 

“fugitive felon as defined in 38 U.S.C. § 5313B.” When notifying Foster of 

the termination, the VA referred to the warrant issued after his violation of a 

condition of release. It then quoted the statutory definition of a “fugitive 

felon” as a person who violates “a condition of probation or parole imposed 

for commission of a felony.” 38 U.S.C. § 5313B(b)(1)(B). The VA stated to 

Foster that he would have to provide evidence showing that he was not a 

fugitive felon in order to resume his benefits. The VA then offered examples 

of ways that Foster might prove this, such as providing “evidence that a court 

specifically determined the warrant void from its inception,” or evidence that 

“parole or probation was not violated.”

Foster raised his collateral consequence issue in the district court, 

where he stated that he was seeking exoneration on various grounds, 

including the invalidity of the condition and lack of any violation of a valid 

group treatment condition. The district court did not address the collateral 

consequence issue. 

Foster’s argument is that the loss of VA benefits is one of the 

“disabilities [that] may attach to a convicted defendant even after he has left 

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prison,” which permits former prisoners to “challenge the legality of their 

convictions even when their sentences have been served.” North Carolina v. 

Rice, 404 U.S. 244, 247 (1971). Among these are the inability to “engage in 

certain businesses,” “serve as an official of a labor union for a specified 

period of time,” “serve as a juror,” or vote. Carafas v. LaVallee, 391 U.S. 

234, 237–38 (1968). These deprivations can be important when considering 

a challenge both to the underlying conviction and to the sentence imposed. 

Pollard v. United States, 352 U.S. 354, 483–84 (1957).

There is little authority on whether the denial of benefits such as those 

provided by the VA would be a collateral consequence sufficient to defeat an 

otherwise moot habeas petition. One of the few opinions that has considered 

this issue is the Tenth Circuit’s decision in Lorance v. Commandant, U.S. 

Disciplinary Barracks, 13 F.4th 1150 (10th Cir. 2021) (petition following 

pardon). There, an army officer had been convicted by a court-martial of 

murder. Id. at 1151. The officer filed a federal habeas petition after 

exhausting his direct appeals. Id. Three days later, he received a full and 

unconditional pardon from the President. Id. at 1152. The government 

sought dismissal of the habeas petition on the grounds of mootness. Id. 

Lorance opposed the dismissal “because he continued to suffer collateral 

consequences from his convictions.” Id. The Tenth Circuit held that the 

pardon did not constitute a legal admission of guilt and that Lorance 

“sufficiently allege[d] ongoing collateral consequences from his 

conviction . . . rendering [the case] not moot.” Id. at 1151. The court also 

stated that “vacating the convictions would alleviate some of their collateral 

consequences. Specifically, it would impact Lorance’s criminal history, 

ability to obtain military benefits, and likelihood of passing a bar character 

and fitness investigation.” Id. at 1165. 

We consider the Lorance approach potentially to be valid. Foster’s 

loss of VA benefits due to his violation of the condition challenged in his 

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petition may be an ongoing collateral consequence that prevents this case 

from being moot. In the absence of briefing from the government, though, 

we do not make such a holding. This will be an issue for the district court to 

consider after briefing on remand. Whether Foster’s claims are sufficient to 

support appointment of counsel can be reconsidered in light of the 

government’s brief.

Our decision today in no way intimates a view on the viability of

Foster’s claims. Our only holding today is that at this point the claims have

not been shown to be moot.

We VACATE the district court’s order dismissing the case and 

REMAND for further proceedings consistent with this opinion.

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