Opinion
No. 2:03-CV-0416.
January 19, 2005
REPORT AND RECOMMENDATION TO GRANT RESPONDENT'S MOTION TO DISMISS AS MOOT and TO DISMISS PETITION FOR A WRIT OF HABEAS CORPUS
Came this day for consideration the Petition for a Writ of Habeas Corpus by a Person in State Custody filed by petitioner CEDRIC MIGUEL McHENRY on December 8, 2003. Said application was originally filed with the Lubbock Division Court and subsequently transferred to this Court. By his application, petitioner challenges the result of a disciplinary proceeding which took place on July 25, 2003, pursuant to which he lost two-hundred (200) days previously accrued good time.
On December 2, 2004, petitioner provided the Court with a change of address. On December 21, 2004, respondent filed a motion to dismiss petitioner's habeas application arguing such application is moot because petitioner has been released to mandatory supervision. On December 27, 2004, the undersigned ordered petitioner to file a response to respondent's motion to dismiss by January 10, 2005 if petitioner, in fact, opposes the motion. As of this date, no response opposing respondent's motion has been filed.
The only relief available to petitioner in this matter was the restoration of the good time credits forfeited by the disciplinary action. As petitioner has been released and is no longer incarcerated, his request for a return of good time credits is moot. Under Texas Government Code section 498.003(a), "[g]ood conduct time applies only to eligibility for parole or mandatory supervision as provided by Section 508.145 or 508.147 and does not otherwise affect an inmate's term." Therefore, it is the opinion of the undersigned that because of petitioner's release on mandatory supervision, the issues raised in his writ of habeas corpus are moot under the continuing controversy requirement and that such petition should be dismissed.
RECOMMENDATION
It is the RECOMMENDATION of the United States Magistrate Judge to the United States District Judge that the Motion to Dismiss as Moot filed by respondent be GRANTED, and that the Petition for a Writ of Habeas Corpus by a Person in State Custody filed by petitioner CEDRIC MIGUEL McHENRY be DISMISSED as moot.
INSTRUCTIONS FOR SERVICE
The United States District Clerk is directed to send a file-marked copy of this Report and Recommendation to petitioner and to counsel of record for respondent by the most efficient means available.
IT IS SO RECOMMENDED.