Hagos v. Raemisch, et al

Filing

[10330163] Reversed and Remanded. Terminated on the merits after oral hearing. Written, signed, published. Judges Holmes, Baldock and Matheson (authoring judge). Mandate to issue. [14-1497]

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PUBLISH

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FILED
United States Court of Appeals
Tenth Circuit

UNITED STATES COURT OF APPEALS

December 29, 2015

FOR THE TENTH CIRCUIT
_________________________________

Elisabeth A. Shumaker
Clerk of Court

ABRAHAM HAGOS,
Petitioner - Appellant,
No. 14-1497

v.
RICK RAEMISCH, Executive Director,
Colorado Department of Corrections;
JAMES FALK, Warden, Sterling
Correctional Facility; CYNTHIA H.
COFFMAN, Attorney General of the State
of Colorado,

Respondents - Appellees.
_________________________________
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
(D.C. No. 1:13-CV-02375-RPM)
_________________________________
Jonathan D. Reppucci, Reppucci Law Firm, P.C., Denver, Colorado, appearing for
Appellant.
John J. Fuerst III, Senior Assistant Attorney General, Criminal Appeals Section (Cynthia
H. Coffman, Attorney General, with him on the briefs), Office of the Attorney General
for the State of Colorado, Denver, Colorado, appearing for Appellees.
_________________________________
Before HOLMES, BALDOCK, and MATHESON, Circuit Judges.
_________________________________


Pursuant to Fed. R. App. P. 43(c)(2), John W. Suthers is replaced by Cynthia H.
Coffman as Attorney General of the State of Colorado.

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MATHESON, Circuit Judge.
_________________________________
Abraham Hagos is incarcerated in Colorado State prison for multiple convictions
from two prosecutions. In the first case, he was convicted of first-degree murder,
attempted first-degree murder, conspiracy to commit first-degree murder, and two counts
of retaliation against a witness. In the second, he was convicted of first-degree
kidnapping, first-degree burglary, felony menacing, and conspiracy. He is serving two
consecutive life sentences, one from each case.
In a separate pending state court proceeding, Mr. Hagos is challenging his murder
and related convictions from his first case. In the instant appeal, he seeks federal habeas
review under 28 U.S.C. § 2254 of his kidnapping and related convictions from his second
case. The district court dismissed his § 2254 application for lack of a case or controversy
and granted Mr. Hagos a certificate of appealability (“COA”) to appeal this ruling, which
he does so here.
I. BACKGROUND
A. Factual Background
The events leading to Mr. Hagos’s incarceration are detailed in the Colorado
Supreme Court’s (“CSC”) decision in Hagos v. People, 288 P.3d 116, 117-18 (Colo.
2012), and our decision in Hagos v. Werholtz, 548 F. App’x 540, 541-43 (10th Cir. 2013)
(unpublished). We do not recount them here because the issues raised in this appeal do
not depend on them.

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Mr. Hagos was convicted of different crimes in two separate trials. In this
opinion, we will refer to one as “the kidnapping case” and the other as “the murder case.”
This appeal involves our review of the district court’s dismissal of Mr. Hagos’s § 2254
application challenging his convictions in the kidnapping case.
1. The Kidnapping Case
On December 30, 2002, Mr. Hagos was convicted of first-degree kidnapping and
other crimes. He was sentenced to life in prison without the possibility of parole.
The Colorado Court of Appeals (“CCA”) affirmed his convictions on direct
appeal, and the CSC and United States Supreme Court both denied Mr. Hagos’s petitions
for a writ of certiorari. Mr. Hagos sought state post-conviction relief, which the district
court, the CCA, and the CSC denied.
In September 2013, Mr. Hagos filed a § 2254 application, seeking federal habeas
review. The district court dismissed the application after concluding it did not satisfy
Article III’s case or controversy requirement. We review the dismissal here.
2. The Murder Case
On April 26, 2002, Mr. Hagos was convicted of first-degree murder. The state
court sentenced him to life in prison without the possibility of parole, to run
consecutively to the life sentence previously imposed in the kidnapping case. Mr. Hagos
is therefore serving two consecutive life sentences without the possibility of parole.
On direct appeal, the CCA affirmed, People v. Hagos, 250 P.3d 596 (Colo. App.
2009), and the CSC and United States Supreme Court denied certiorari, Hagos v. People,

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No. 10SC192, 2010 WL 3529276, at *1 (Colo. Sept. 13, 2010); Hagos v. Colorado, 562
U.S. 1297 (2011).
Mr. Hagos sought federal habeas relief in a § 2254 application, which the district
court denied. Hagos v. Clements, No. 12-cv-00678-REB, 2013 WL 674026, at *1 (D.
Colo. Feb. 25, 2013). This court dismissed the matter after denying Mr. Hagos’s request
for a COA. Werholtz, 548 F. App’x at 541. The Supreme Court denied Mr. Hagos’s
petition for writ of certiorari. Hagos v. Raemisch, 135 S. Ct. 340 (2014).
On August 25, 2014, Mr. Hagos moved for post-conviction relief in state court.
Mr. Hagos reports this matter remains pending.
B. Procedural Background
As discussed above, in September 2013, Mr. Hagos filed a § 2254 habeas petition
in the kidnapping case. At that time, Mr. Hagos’s request for a COA on his § 2254
petition in the murder case was also pending before the Tenth Circuit. Werholtz, 548 F.
App’x at 541.
1. The District Court’s Sua Sponte Order to Show Cause and Mr. Hagos’s
Response
The district court sua sponte ordered Mr. Hagos to show cause why the § 2254
proceedings in the kidnapping case should not be stayed pending the Tenth Circuit’s
resolution of Mr. Hagos’s § 2254 application in the murder case.
The order included discussion explaining why the district court was issuing it.
The court relied on Peyton v. Rowe, 391 U.S. 54 (1968), and Garlotte v. Fordice, 515
U.S. 39 (1995). In those cases, the Supreme Court interpreted the “in custody”

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requirement for habeas relief. The district court in this case interpreted Peyton and
Garlotte to provide that “if immediate release is not granted, the writ must have some
effect of shortening the prisoner’s time in prison.” App. at 206. The court also cited
Mays v. Dinwiddie, 580 F.3d 1136 (10th Cir. 2009), which held that a prisoner was not
“in custody” for purposes of habeas review because his concurrent sentence had expired.
The district court acknowledged Mr. Hagos’s case was different from Peyton,
Garlotte, and Mays because he is currently serving the kidnapping sentence that he is
challenging in the instant § 2254 petition while the prisoners in Peyton, Garlotte, and
Mays were not currently serving the sentences they challenged. Nonetheless, the court
said, “[e]ven if the Court were to invalidate his kidnapping conviction here, he would still
unquestionably remain in custody for the rest of his life, if his murder[] convictions are
upheld by the Tenth Circuit and, if it comes to it, by the U.S. Supreme Court.” App. at
208.
Relying on an out-of-circuit district court opinion decided more than 40 years ago,
Kelly v. Wingo, 313 F. Supp. 1059 (W.D. Ky. 1970), the district court concluded that if
granting habeas relief in Mr. Hagos’s kidnapping case would not reduce the duration of
his confinement or effect his immediate release, the habeas petition would not satisfy
Article III’s case or controversy requirement.1
1

By staying Mr. Hagos’s § 2254 petition in his kidnapping case while he sought
Tenth Circuit and Supreme Court review in his § 2254 murder case, the district court
implicitly recognized a case or controversy existed while the federal matter remained
pending. The court did not explain why the pending state post-conviction relief is not
similarly sufficient to maintain a case or controversy.

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Having provided the foregoing analysis, the district court ordered Mr. Hagos to
show cause why it should not stay the § 2254 proceedings pending the outcome of his
habeas challenge to the murder conviction.
In response, Mr. Hagos opposed a stay and argued he is “in custody” for purposes
of habeas review under Peyton and Garlotte. He said the district court’s reliance on Kelly
was misplaced because Peyton and Garlotte showed Kelly’s reasoning was flawed. He
also asserted his habeas petition met the case or controversy requirement because he
could still challenge his murder conviction in state court. It was therefore premature to
conclude he would remain in custody for the rest of his life even if the court granted
habeas relief on his kidnapping conviction. He further argued habeas relief could reduce
his custody level status in state prison.
2. The District Court Stays and Dismisses the Case
The district court, rejecting Mr. Hagos’s arguments, stayed the case in November
2013. In December 2013, the Tenth Circuit denied Mr. Hagos’s request for a COA in the
§ 2254 murder case proceeding. Mr. Hagos petitioned the U.S. Supreme Court for
certiorari, which it denied in October 2014.
In light of these developments, in November 2014 the district court dismissed Mr.
Hagos’s § 2254 petition in the kidnapping case for the reasons explained in its stay order.
The court acknowledged Mr. Hagos had filed a new post-conviction relief petition in his
murder case in state court, but concluded dismissal was nonetheless warranted because
“[i]f he is granted postconviction relief in that case, he could file a new habeas

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Application [in federal court].” App. at 290. The court further concluded its dismissal
ruling was debatable and granted a COA.
We have jurisdiction under 28 U.S.C. §§ 1291 and 2253. Miller-El v. Cockrell,
537 U.S. 322, 335-36 (2003); Lockett v. Trammel, 711 F.3d 1218, 1230 (10th Cir. 2013).
We review de novo whether Mr. Hagos was “in custody” and whether his § 2254 petition
presents a case or controversy. See Mays, 580 F.3d at 1138; Rio Grande Silvery Minnow
v. Bureau of Reclamation, 601 F.3d 1096, 1109 (10th Cir. 2010).
II. DISCUSSION
We reverse the district court’s order dismissing Mr. Hagos’s § 2254 petition
because (1) he is “in custody” for his kidnapping conviction for purposes of habeas
review,2 and (2) an Article III case or controversy exists to permit the district court’s
review of his § 2254 petition.
A. Mr. Hagos Is “In Custody” for His Kidnapping Conviction
Mr. Hagos’s life sentence for murder is set to run consecutively to his life sentence
for kidnapping. He satisfies the “in custody” requirement.
Under 28 U.S.C. § 2254(a), federal courts “shall entertain an application for a writ
of habeas corpus in behalf of a person in custody 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.”
2

The district court relied on cases interpreting the “in custody” requirement in
reaching its conclusion that Mr. Hagos’s § 2254 petition lacked a case or controversy.
For clarity and completeness, we discuss the “in custody” requirement.

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In Peyton, the Supreme Court reviewed two habeas petitions filed by prisoners
serving consecutive sentences. The prisoners both sought habeas relief, not for the
sentences they were serving, but for the sentences set to run consecutively to their present
sentences. Peyton, 391 U.S. at 55-57. Reversing McNally v. Hill, 293 U.S. 131 (1934),
the Court held the prisoners satisfied the “in custody” requirement even though they were
challenging their future consecutive sentences. Peyton, 391 U.S. at 55, 67. The Peyton
Court rejected McNally’s reliance on the premise that habeas corpus had historically been
limited to cases where a favorable result for the prisoner would “result[] in his immediate
release.” Id. at 65-66 (quotation omitted); see also Walker v. Wainwright, 390 U.S. 335,
336-37 (1968) (per curiam) (questioning McNally, holding a prisoner can challenge the
sentence he is currently serving even though he faces a consecutive sentence once the
sentence is served, and explaining, “[i]t is immaterial that another prison term might still
await him even if he should successfully establish the unconstitutionality of his present
imprisonment”).
Garlotte presented the Supreme Court with “Peyton’s complement, or Peyton in
reverse.” 515 U.S. at 41. Mr. Garlotte was serving consecutive sentences and sought
habeas relief for only his first conviction. Id. He had already served the full term of the
challenged sentence, but it continued to affect his eligibility for parole. Id. The Court
extended Peyton’s view that a prisoner’s consecutive sentences compose a “continuous
stream,” id., and the prisoner remains in custody for purposes of habeas review until all
of the sentences are served, id. at 43.

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Mr. Hagos’s kidnapping and murder convictions were imposed consecutively and
form a continuous stream. Under Peyton and Garlotte, Mr. Hagos is therefore in custody
to seek habeas relief for any of the sentences forming that continuous stream. He
“remains ‘in custody’ under all of his sentences until all are served.” Id. at 41.
The district court’s reliance on Mays v. Dinwiddie is misplaced. Mr. Mays sought
habeas relief for an expired sentence he had served concurrently with other sentences.
580 F.3d at 1137-38. This court declined to extend Peyton’s and Garlotte’s continuousstream principle to Mr. Mays’s expired concurrent sentence. Id. at 1140-41. We
concluded Mr. Mays was not in custody on the concurrent sentence once it expired. Id.
Mays is limited to expired concurrent sentences and is inapplicable to Mr. Hagos’s nonexpired consecutive sentence.
B. Mr. Hagos’s Habeas Petition Satisfies the Article III Case or Controversy
Requirement
Mr. Hagos is incarcerated based on the conviction he seeks to challenge in the
instant § 2254 petition. Such challenges satisfy Article III’s case or controversy
requirement.3
1. Precedent Supports Justiciability

3

It is unclear whether the district court considered the case or controversy defect
to be a lack of standing or mootness. The doctrines are similar. “Mootness usually
results when a plaintiff has standing at the beginning of a case, but, due to intervening
events, loses one of the elements of standing during litigation; thus, courts have
sometimes described mootness as ‘the doctrine of standing set in a time frame.’”
WildEarth Guardians v. Pub. Serv. Co. of Colo., 690 F.3d 1174, 1182 (10th Cir. 2012)
(quoting Arizonans for Official English v. Arizona, 520 U.S. 43, 68 n.22 (1997)).

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The United States Constitution limits federal jurisdiction to “[c]ases” and
“[c]ontroversies.” U.S. Const. art. III, § 2, cl. 1. To satisfy Article III’s case or
controversy requirement, “a litigant must have suffered, or be threatened with, an actual
injury traceable to the defendant and likely to be redressed by a favorable judicial
decision.” Chafin v. Chafin, 133 S. Ct. 1017, 1023 (2013) (quotation omitted). “This
case-or-controversy requirement subsists through all stages of federal judicial
proceedings, trial and appellate.” Lewis v. Cont’l Bank Corp., 494 U.S. 472, 477 (1990).
“[A] criminal case is moot only if it is shown that there is no possibility that any
collateral legal consequences will be imposed on the basis of the challenged conviction.”
Sibron v. New York, 392 U.S. 40, 57 (1968). The Supreme Court relied on Sibron for this
principle when reviewing a habeas petition in Spencer v. Kemna, 523 U.S. 1, 8 (1998).
Sibron also recognized that it is an “obvious fact of life that most criminal convictions do
in fact entail adverse collateral legal consequences.” 392 U.S. at 55. It therefore follows,
as the Court said in Spencer, that “[a]n incarcerated convict’s (or a parolee’s) [habeas]
challenge to the validity of his conviction always satisfies the case-or-controversy
requirement, because the incarceration (or the restriction imposed by the terms of the
parole) constitutes a concrete injury, caused by the conviction and redressable by
invalidation of the conviction.” 523 U.S. at 7 (emphasis added); accord 13C Charles
Alan Wright, Arthur R. Miller, & Edward H. Cooper, Federal Practice & Procedure §
3533.4.1, at 168-69 (3d ed. 2008) (“There is no problem with mootness if the [habeas]
petitioner remains confined by command of the conviction addressed by the petition.”);
Brian R. Means, Postconviction Remedies § 8:4 (2015) (“A challenge to a conviction by
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an individual presently incarcerated or otherwise in custody—including parole,
supervised release, or probation—satisfies the case-or-controversy requirement.”
(emphasis omitted)).4
Spencer makes clear that so long as Mr. Hagos’s § 2254 petition challenges the
conviction for which he is incarcerated, he satisfies the case or controversy requirement.
Because he is incarcerated based on the kidnapping conviction he seeks to challenge, his
§ 2254 petition involves a case or controversy.
The Eighth Circuit’s decision in Brewer v. Iowa, 19 F.3d 1248 (8th Cir. 1994), is
on point and instructive. Mr. Brewer had been sentenced to life in prison for seconddegree murder. Brewer, 19 F.3d at 1250. While serving that sentence, Mr. Brewer
escaped from prison and committed two more murders, was convicted of one of them,
and sentenced to a second life sentence. Id. He unsuccessfully sought post-conviction
relief for each conviction in state court. Id. Later, when Mr. Brewer attempted to
challenge the initial murder conviction in a § 2254 petition, the State argued, “[Mr.]
Brewer’s second life sentence . . . moots this action for habeas relief because even if he is
successful here, he will still remain incarcerated for life.” Id. The Eighth Circuit rejected
the State’s argument and affirmed the district court’s conclusion that the action was not
4

The district court drew on “in custody” cases (Peyton and Garlotte) to assess the
existence of a case or controversy. The two inquiries are distinct, see Carafas v.
LaVallee, 391 U.S. 234, 238 (1968), but they “are grounded upon similar policies,” Brian
R. Means, Postconviction Remedies § 8:2. “[A]s a practical matter it is clear from the
cases that restrictions upon liberty sufficient to satisfy the ‘custody’ requirement in
habeas corpus are substantially more severe than the burdens that will prevent questions
from becoming moot.” Brian R. Means, Postconviction Remedies § 8:2.

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moot “because a possibility exists that the challenged conviction, if determined to be
invalid, could cause him adverse legal consequences.” Id. at 1250-51. The court
explained, for example, that Mr. Brewer could be precluded from obtaining a commuted
sentence if he has two convictions on his record rather than one. Id. If he prevailed in
challenging one of the sentences via § 2254, he would improve the possibility of a
commutation of his other sentence. Id.5
2. Pending State Post-Conviction Proceedings Support Justiciability
Mr. Hagos presents an even clearer case or controversy than in Brewer. Because
his state post-conviction petition remains pending, we cannot be certain that Mr. Hagos
would remain incarcerated for life if he succeeds in challenging his kidnapping
conviction through federal habeas review. Although success on either claim might be
remote, the Supreme Court “accept[s] the most generalized and hypothetical of
5

At oral argument Mr. Hagos’s counsel stated,

even if Mr. Hagos [does not successfully challenge his convictions in the
murder case], he does have an opportunity to petition the Governor of
Colorado for clemency or a pardon, and . . . however unlikely [it] might be
that he’d ever be granted a pardon, it’s certainly a lot more unlikely that
he’d be granted a pardon if he had two life sentences than one.
Oral Arg. at 18:18-18:41. He did not raise this argument in his briefing. Although we
typically do not consider issues raised for the first time at oral argument, see Frost v.
Pryor, 749 F.3d 1212, 1226 n.9 (10th Cir. 2014), we “have a continuing obligation to
assure ourselves that appellate jurisdiction exists,” Chavez v. City of Albuquerque, 402
F.3d 1039, 1043 (10th Cir. 2005). We need not rely on this point, however, because as
discussed more fully below, Mr. Hagos properly identified other adverse legal
consequences stemming from his kidnapping conviction. We nonetheless note that under
the Eighth Circuit’s decision, Mr. Hagos’s reduced likelihood of obtaining a commuted
sentence would be sufficient to satisfy the case or controversy requirement.

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consequences as sufficient to avoid mootness in [habeas] challenges to [a] conviction.”
Spencer, 523 U.S. at 10.
3. Adverse Legal Consequences of Conviction Support Justiciability
The district court thought Mr. Hagos’s two consecutive life sentences made his
attempt to challenge one of the convictions not redressable, and therefore non-justiciable.
But the court erred in concluding Mr. Hagos’s challenge to his conviction does not
present an Article III case or controversy because his sentence is not redressable. See
Sciberras v. United States, 404 F.2d 247, 248-49 (10th Cir. 1968) (reversing district
court’s dismissal of a 28 U.S.C. § 2255 petition where prisoner challenged only one of
two concurrent 5-year sentences). The district court’s view of redressability is too
narrow. Mr. Hagos’s challenge is redressable even if it would not hasten his release from
prison because his conviction could have adverse legal consequences.
Section 2254 habeas relief on Mr. Hagos’s kidnapping conviction could affect his
custody level in prison. The State argues Mr. Hagos’s offender classification will never
fall below level III or a level III facility based on his murder conviction. But the State
misses the point. If Mr. Hagos succeeds in challenging his kidnapping conviction, it
would not be available to enhance Mr. Hagos’s custody above level III. The custody
levels in the Colorado prison system range from I to V.
Colorado Department of Corrections Regulation Number 600-01 explains the
Colorado prison system has five security levels. “The DOC utilizes an objective rating
process to balance the assignment of offenders at the lowest custody level consistent with
an objective assessment of public risk, the safety of DOC employees/contract workers
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and other offenders, the security needs of the offender, and the programmatic needs of the
offender.” Aplt. Br., Attach. 5 at 4.
At oral argument, the State conceded Mr. Hagos’s convictions in the kidnapping
case could be relevant to his restraint level. Oral Arg. at 20:00-20:52. Although Mr.
Hagos is certain to be classified as no less than a level III prisoner based on his
convictions from the murder case, he could be classified more restrictively as a level IV
or V prisoner based in part on his convictions from the kidnapping case.
The State also conceded at oral argument that Mr. Hagos’s kidnapping conviction
could affect his eligibility for prison programs, such as work within the prison and
education programs. Id. at 21:12-21:28.
* * * *
In sum, Mr. Hagos’s § 2254 petition presents a case or controversy. First,
precedent—Sibron, Spencer, and Brewer—strongly supports that Mr. Hagos’s habeas
challenge to his kidnapping conviction qualifies for Article III jurisdiction. Second, Mr.
Hagos’s pending state post-conviction proceeding in the murder case makes the § 2254
application in the kidnapping case a live, redressable claim. Third, the adverse legal
consequences of the kidnapping conviction on such matters as custody status and
eligibility for prison programs show that Mr. Hagos’s § 2254 application satisfies the
standing and mootness elements of justiciability.6

6

As noted above, the district court relied on the Western District of Kentucky’s
1970 decision in Kelly v. Wingo, 313 F. Supp. 1059 (W.D. Ky. 1970). Other than the
district court in this case, we have not found a single judicial opinion citing to Kelly for
Continued . . .
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III. CONCLUSION
We reverse and remand for consideration of Mr. Hagos’s § 2254 petition.
ENTERED FOR THE COURT,

Scott M. Matheson, Jr.
Circuit Judge

any proposition. A 45-year-old out-of-circuit district court opinion, Kelly is inconsistent
with Supreme Court precedent cited in this opinion and its reasoning is otherwise
unpersuasive.

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