Wach v. State of Utah

• Court: Court of Appeals for the Tenth Circuit
• Decided: December 5, 2024
• Docket: 23-4123
• Status: Unpublished

Opinion

Appellate Case: 23-4123 Document: 77-1 Date Filed: 12/05/2024 Page: 1 FILED United States Court of Appeals UNITED STATES COURT OF APPEALS Tenth Circuit

FOR THE TENTH CIRCUIT December 5, 2024 _________________________________ Christopher M. Wolpert Clerk of Court PAUL WACH,

Petitioner - Appellant,

v. No. 23-4123 (D.C. No. 2:22-CV-00048-DAK) STATE OF UTAH; UTAH (D. Utah) DEPARTMENT OF CORRECTIONS; UTAH BOARD OF PARDONS AND PAROLE,

Respondents - Appellees. _________________________________

ORDER DENYING CERTIFICATE OF APPEALABILITY* _________________________________

Before HARTZ, BALDOCK, and ROSSMAN, Circuit Judges. _________________________________

The Utah Board of Pardons and Parole revoked Paul Wach’s parole and decided

not to release him for several years. Mr. Wach challenged the Board’s decision in a

28 U.S.C. § 2241 application, and he now seeks to appeal the district court’s dismissal of

that application. But he has recently been released on parole once again, and we

conclude his release made this matter moot.

In 1999, a Utah court sentenced Mr. Wach to serve ten years to life in prison. He

has since gone in and out of prison through several parole grants and revocations. His

* This order is not binding precedent except under the doctrines of law of the case, res judicata, and collateral estoppel.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. Appellate Case: 23-4123 Document: 77-1 Date Filed: 12/05/2024 Page: 2

most recent revocation occurred in 2013 after he was convicted of a misdemeanor

offense. In 2014, the Board denied him parole and set a rehearing for 2024.

In 2022, Mr. Wach filed his § 2241 habeas application. Claiming the Board

violated state and federal law in the 2014 hearing, his application focused on an

allegation that the Board withheld information from him and then used the information

against him. The district court dismissed his application with prejudice, holding he had

not shown a violation of his federal rights.

Mr. Wach seeks to appeal the district court’s dismissal. He can appeal only if we

grant a certificate of appealability. See Montez v. McKinna, 208 F.3d 862, 869 (10th Cir.

2000). We may grant a certificate of appealability if he makes “a substantial showing of

the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).

But we will not reach the merits if the case has become moot. See Ind v. Colo.

Dep’t of Corr., 801 F.3d 1209, 1213 (10th Cir. 2015) (“Mootness is a threshold issue

because the existence of a live case or controversy is a constitutional prerequisite to

federal court jurisdiction.” (internal quotation marks omitted)). A case becomes moot if

“it becomes impossible for a court to grant effective relief.” Id. (internal quotation marks

omitted).

Mootness arose as an issue here because, while the case has been pending before

us, the Board once again granted Mr. Wach parole. A habeas applicant’s release to

parole will generally render moot any challenge to “determinations that delayed his

parole date.” Vandenberg v. Rodgers, 801 F.2d 377, 378 (10th Cir. 1986). But the case

2 Appellate Case: 23-4123 Document: 77-1 Date Filed: 12/05/2024 Page: 3

will remain live if a decision on the merits could still remedy some collateral

consequence. See id.; Spencer v. Kemna, 523 U.S. 1, 7–8 (1998).

At our request, the parties have briefed whether Mr. Wach’s release made this case

moot. Mr. Wach offers three theories to avoid mootness, but none is persuasive.

First, he highlights that his § 2241 application requested not only his immediate

release but also the immediate termination of his sentence. But he offers no authority

suggesting a federal court could vacate his sentence if he prevailed on his § 2241

application, an application directed to the execution of his sentence rather than the

validity of the sentence itself. And he cannot avoid mootness by requesting relief that is

unavailable.

Second, he lists various ways the Board’s decision harmed him. With one

exception, these harms—emotional distress and loss of wages, for example—flow from

his incarceration. At this point, however, his incarceration is over “and cannot be

undone.” Spencer, 523 U.S. at 8. The one harm he alleges not stemming from his

incarceration is the Board’s making “false and defamatory allegations” against him.

Aplt. Suppl. Br. at 6. But he fails even to describe those allegations and does not explain

how they continue to harm him or how that harm could be remedied in a § 2241

proceeding.

Third, he discusses qualified immunity, suggesting he seeks monetary damages.

But damages are not an available remedy in habeas. See Muhammad v. Close, 540 U.S.

749, 750–51 (2004) (per curiam).

3 Appellate Case: 23-4123 Document: 77-1 Date Filed: 12/05/2024 Page: 4

Given this case is now moot, what (if anything) should happen to the district

court’s judgment? When a case becomes moot while pending before us because of

“happenstance or the actions of the prevailing party,” we will typically vacate the district

court’s judgment and remand with directions to dismiss. Wyoming v. U.S. Dep’t of

Agric., 414 F.3d 1207, 1213 (10th Cir. 2005). We have followed that procedure in

habeas cases. See Boyce v. Ashcroft, 268 F.3d 953, 955 (10th Cir. 2001). And we see no

reason to depart from it here. See Miller v. Glanz, 331 F. App’x 608, 611 (10th Cir.

2009).

* * *

We deny as moot Mr. Wach’s application for a certificate of appealability and

dismiss this matter. We vacate the district court’s judgment dismissing his § 2241

application with prejudice, and we remand with directions to dismiss it without prejudice.

Entered for the Court

Veronica S. Rossman Circuit Judge