Alain Boucherie v. Gregory A. Lowe, Commandant, 21 F.3d 1120, 10th Cir. (1994)

21 F.
3d 1120
NOTICE: Although citation of unpublished opinions remains unfavored,
unpublished opinions may now be cited if the opinion has persuasive value on a
material issue, and a copy is attached to the citing document or, if cited in oral
argument, copies are furnished to the Court and all parties. See General Order of
November 29, 1993, suspending 10th Cir. Rule 36.3 until December 31, 1995, or
further order.
Alain BOUCHERIE, Petitioner-Appellant,

v.
Gregory A. LOWE, Commandant, Respondent-Appellee.
No. 93-3271.
United States Court of Appeals, Tenth Circuit.

April 14, 1994.
Before LOGAN, SETH, and BARRETT, Circuit Judges.
1ORDER AND JUDGMENT*

2
After examining the briefs and 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); Tenth Cir. R. 34.1.9. The cause is
therefore ordered submitted without oral argument.
Appellant Alain Boucherie was court-martialed in 1987 and sentenced to seven

years of confinement. In 1990, he was paroled conditioned upon his successful
completion of a drug rehabilitation program and his maintaining gainful
employment. Because of alleged parole violations, Appellant's parole was
modified and later suspended. Appellant subsequently filed a petition for a writ
of habeas corpus claiming that (1) he was not provided adequate notice or a
hearing in violation of his procedural due process rights, (2) the decision of the
Army Board for Clemency and Parole ("Parole Board") to deny him certain
"street time" credits was arbitrary and capricious, and (3) the Parole Board's
revocation of parole was "undertaken lightly and without regard to fundamental
fairness or treatment to factual issue in this case." Petition for a Writ of Habeas
Corpus at 7.
In response to Appellant's petition, Appellee Gregory Lowe moved for a stay

pending the reopening of Appellant's case before the Parole Board. Over
Appellant's objection the motion was granted. Thereafter, Appellant received a
full hearing on the merits of his case which concluded with the revocation of
Appellant's parole. However, the Parole Board granted the disputed "street
time" credits to Appellant. Ultimately, the United States District Court for the
District of Kansas dissolved the stay and dismissed the lawsuit as moot. This
appeal follows, and we affirm.
In his brief to this court, Appellant concedes that he obtained some of the relief
that he requested in his habeas petition; namely, he was awarded "street time"
credits and was secured proper procedural due process by his Parole Board
hearing. In liberally construing his brief, see Meade v. Grubbs, 841 F.2d 1512,
1526 (10th Cir.), we find that Appellant is only challenging the merits of the
Parole Board's decision handed down after the full hearing. Consequently,
Appellant has waived the third issue presented in his petition that the original
decision by the Parole Board in some way violated his Constitutional rights.
In its Order dismissing Appellant's action as moot, the district court correctly
cited Powell v. McCormack, 395 U.S. 486, 496, for the proposition that "a case
is moot when the issues presented are no longer live' or the parties lack a
legally cognizable interest in the outcome." The court then concluded that in
this case "petitioner has received appropriate relief. The effect of the alleged
error[s] has been removed, ... and there is no reasonable expectation" they will
recur. Record on Appeal, Vol. I, doc. 19 at 1. After carefully reviewing the
record, we concur with the district court. Appellant's claims raised in his
petition have been either rectified or abandoned; therefore, there is no
remaining case or controversy for the district court to adjudicate.
This is not to say that Appellant has lost the right to challenge the merits of the
Parole Board's revocation decision. Rather, we only hold that Appellant may
not bootstrap his allegations raised in this appeal to his petition which we have
determined to be moot. Any judicial review of alleged Constitutional or other
violations by the Parole Board in conducting the hearing and revoking parole
may be had only upon the filing of a new cause of action by Appellant,
provided that it is filed according to the applicable statute of limitations.
Accordingly, we grant Appellant the right to proceed in forma pauperis and

AFFIRM the judgment of the district court.
This order and judgment is not binding precedent, except under the doctrines of
This order and judgment is not binding precedent, except under the doctrines of
law of the case, res judicata, and collateral estoppel. The court generally
disfavors the citation of orders and judgments; nevertheless, an order and
judgment may be cited under the terms and conditions of the court's General
Order filed November 29, 1993. 151 F.R.D. 470

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21 F.

Alain BOUCHERIE, Petitioner-Appellant,

United States Court of Appeals, Tenth Circuit.

Before LOGAN, SETH, and BARRETT, Circuit Judges.

1ORDER AND JUDGMENT*

Appellant Alain Boucherie was court-martialed in 1987 and sentenced to seven

In response to Appellant's petition, Appellee Gregory Lowe moved for a stay

Accordingly, we grant Appellant the right to proceed in forma pauperis and

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