Opinion
CIVIL ACTION NO. 4:03-CV-154-Y
July 28, 2003
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER
This cause of action was referred to the United States Magistrate Judge under 28 U.S.C. § 636(b), as implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusions, and Recommendation of the United States Magistrate Judge are as follows:
I. FINDINGS AND CONCLUSIONS A. NATURE OF THE CASE
This is a petition for writ of habeas corpus by a state prisoner under 28 U.S.C. § 2254.
B. PARTIES
Petitioner Larry Dale McLawler, TDCJ-ID #1141206, was incarcerated in the Baten Intermediate Sanction Facility of the Texas Department of Criminal Justice, Institutional Division in Pampa, Texas at the time he filed the instant petition. McLawler is no longer confined.
Respondent Janie Cockrell is the Director of the Texas Department of Criminal Justice, Institutional Division.
C. PROCEDURAL HISTORY
On November 8, 1991, McLawler pleaded guilty to possession of cocaine, and the trial court sentenced him to nine years' confinement. (1 State Habeas R. at 16.) On October 21, 1992, McLawler was released on parole, which was revoked January 10, 1994. (Resp't Answer at Ex. B.) On February 28, 1996, McLawler filed a state application for habeas corpus relief, challenging the application of his parole eligibility, which the Texas Court of Criminal Appeals denied without written order. Ex parte McLawler, No. 30, 594-01 (Tex.Crim.App. Mar. 20, 1996) (not designated for publication). McLawler was released to mandatory supervision on June 30, 1997, but was revoked and on September 24, 1998. (Id.) He was again released to mandatory supervision on June 23, 2000 and returned to custody on October 21, 2002. (Id.) On November 22, 2002, McLawler was released to mandatory supervision. Three days later, McLawler filed a second state application for habeas corpus relief, arguing that he denied time credits and that revocation of his mandatory supervision was improper, which the Court of Criminal Appeals denied without written order. Ex parte McLawler, No. 30-594-02 (Tex.Crim.App. May 7, 2003) (not designated for publication).
McLawler filed his federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Fort Worth Division, on February 22, 2003. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (holding pro se habeas petition filed when papers delivered to prison authorities for mailing). On March 14, 2003, McLawler completely discharged his sentence "without further obligation" and, three days later, sent this court notification of his change of address. (Id.)
D. ISSUES
McLawler argues that he is being held past his discharge date, he was denied due process by his confinement in the Baten Unit, and he was denied a hearing before being transferred to the Baten Unit.E. RULE 5 STATEMENT
Cockrell asserts that McLawler's claims have not been properly exhausted and are, thus, procedurally defaulted.
F. DISCUSSION
At the time he filed his federal petition, McLawler challenged as unlawful his then confinement, arguing that he was being held past his discharge date and that his transfer to an Intermediate Sanction Facility was unconstitutional. Because he has completely discharged his sentence, the question of mootness must be addressed.
The federal courts may not entertain a petition for writ of habeas corpus filed by a state prisoner unless the petitioner is in custody in violation of the Constitution or law or treaties of the United States. 28 U.S.C. § 2254(a). Here, McLawler meets the in-custody requirement because at the time he filed the petition, he was in custody of the Texas Department of Criminal Justice. See Van Zant v. Fla. Parole Comm'n, 104 F.3d 325, 327 n. 2 (11th Cir. 1997) (stating jurisdiction attaches at time petition is filed).
But jurisdiction further hinges upon whether the petitioner's challenge to the sentence is moot because there is no live case or controversy. U.S. CONST, art. Ill, § 2; Spencer v. Kemna, 523 U.S. 1, 7 (1998). A challenge to a criminal conviction itself presents a justiciable case or controversy even after expiration of the sentence that was imposed as a result of the conviction. Spencer, 523 U.S. at 7. In cases involving a challenge to a criminal conviction, the Supreme Court has been willing to presume the existence of collateral consequences sufficient to satisfy the case-or-controversy requirement. Id. at 8. However, this presumption does not extend to other situations where a conviction is not being attacked. Id. at 7-8. Instead, an individual challenging the execution of his sentence and not the underlying conviction must show a concrete and continuing injury that flows from the revocation. Id. at 12-14. Thus, McLawler must show that the unit transfer and delay in his release with cause or is still causing him to suffer some actual, future harm and that a writ of habeas corpus can prevent this harm. United States v. Clark, 193 F.3d 845, 847 (5th Cir. 1999). In this case, McLawler has completely discharged his sentence; thus, there are no collateral consequences that could flow from his prior transfer to the Baten Unit and the delay in releasing him from custody. Spencer, 523 U.S. at 7-14; Weiss v. United States Bd. of Parole, 451 F.2d 1346, 1347 (5th Cir. 1971); Bronaugh v. Morrison, No. 4:02-CV-718-Y, 2002 WL 31422963, at *2 (N.D. Tex. Oct. 24, 2002); Branton v. Cockrell, No. 4:01-CV-637-A, 2001 WL 1669386, at *2-3 (N.D. Tex. Dec. 27, 2001). This case is moot.
II. RECOMMENDATION
McLawler's petition for writ of habeas corpus should be dismissed with prejudice for lack of jurisdiction.
III. NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSIONS, AND RECOMMENDATION AND CONSEQUENCES OF FAILURE TO OBJECT
Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file specific written objections in the United States District Court to the United States Magistrate Judge's proposed findings, conclusions, and recommendation within ten (10) days after the party has been served with a copy of this document. The court is extending the deadline within which to file specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation until August 18, 2003. The United States District Judge need only make a de novo determination of those portions of the United States Magistrate Judge's proposed findings, conclusions, and recommendation to which specific objection is timely made. See 28 U.S.C. § 636(b)(1). Failure to file by the date stated above a specific written objection to a proposed factual finding or legal conclusion will bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any such proposed factual finding or legal conclusion accepted by the United States District Judge. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en bane); Carter v. Collins, 918 F.2d 1198 (5th Cir. 1990).
IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until August 18, 2003 to serve and file written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation. It is further ORDERED that if objections are filed and the opposing party chooses to file a response, the response shall be filed within seven (7) days of the filing date of the objections.
It is further ORDERED that the above-styled and numbered action, previously referred to the United States Magistrate Judge for findings, conclusions, and recommendation, is returned to the docket of the United States District Judge.