Opinion
No. 2:03-CV-0084.
October 15, 2004
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 RANDY HUBERT HAYES. By his habeas application, petitioner challenges the result of an August 29, 2002 disciplinary proceeding at the Clements Unit in Amarillo, Texas, pursuant to which he lost 670 days accrued good time.
On September 22, 2004, respondent filed a motion to dismiss the instant habeas petition, attaching a September 9, 2004 request from the assistant administrator of offender grievances to delete, from petitioner's record, the August 29, 2002 disciplinary report and resultant punishments which are the subject of the instant petition. In his motion, respondent contends that as petitioner has been afforded the same relief he seeks in this federal habeas proceeding, there is no relief this court can give him and, therefore, petitioner's claims are now moot and the instant habeas petition should be dismissed.
The reason stated for the correction was "insufficient evidence."
On September 23, 2004, the undersigned United States Magistrate Judge ordered petitioner to file a response to respondent's motion if he, in fact, opposes respondent's motion. As of this date, petitioner has not filed any response in opposition to respondent's motion.
On September 30, 2004, respondent filed an affidavit from a program specialist for the Office for Disciplinary Coordination of the Texas Department of Criminal Justice, Classification Division, wherein the affiant certified that petitioner's disciplinary case was overturned on September 9, 2004, and deleted from his disciplinary records.
As petitioner's disciplinary case herein under attack has been overturned, the punishment revoked, and his disciplinary records expunged, the relief sought in petitioner's habeas application, i.e., the reinstatement of the 670 days lost good time, has been granted by TDCJ. This Court cannot grant petitioner further relief. Consequently, said petition is moot under the continuing case and controversy requirement and subject to immediate dismissal.
RECOMMENDATION
It is the RECOMMENDATION of the United States Magistrate Judge to the United States District Judge that Motion to Dismiss as Moot filed by respondent DOUGLAS DRETKE be GRANTED, and the petition for a writ of habeas corpus filed by petitioner RANDY HUBERT HAYES 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 by the most efficient means available.
IT IS SO RECOMMENDED.