Opinion
No. 2:03-CV-0361.
March 28, 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 R. WAYNE JOHNSON. By his habeas application, petitioner challenges the result of two December 12, 2002 disciplinary proceedings at the McConnell Unit in Beeville, Texas, and the resultant loss of 30 days and 60 days accrued good time respectively.
On November 3, 2004, respondent filed a motion to dismiss the instant habeas petition, attaching an affidavit dated October 28, 2004, 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 cases were deleted from his disciplinary records, and the ninety (90) days of good time restored.
In his motion, respondent contends that as petitioner has been afforded the same relief he seeks in this federal habeas proceeding, there is no additional relief this court can grant and, therefore, petitioner's claims are moot and the instant habeas petition should be dismissed.
Petitioner JOHNSON, in his response to respondent's Motion to Dismiss, argues among other things, the case is not moot because of collateral consequences he suffered as a result of these disciplinary cases prior to their being deleted from petitioner's disciplinary records. The adverse collateral consequences petitioner alleges he suffered have been held to be too speculative to warrant federal court relief. Luken v. Scott, 71 F.3d 192 (5th Cir. 1995), cert. denied sub. nom, Luken v. Johnson, 517 U.S. 1196, 116 S.Ct. 1690, 134 L.Ed.2d 791 (1996) (the possibility that an inmate's time-earning class "would affect when he was ultimately released from prison `is simply too attenuated to invoke the procedural guarantees of the Due Process Clause.'"). Petitioner has not, and cannot, show that a change in his time-earning class "would automatically shorten his sentence or lead to his immediate release." Carson v. Johnson, 112 F.3d 818, 821 (5th Cir. 1997). Consequently, to the extent petitioner challenges his reduction in class, this ground does not warrant federal habeas relief.
As petitioner's disciplinary cases herein under attack have been overturned, the punishment revoked, and his disciplinary records expunged, the relief sought in petitioner's habeas application, i.e., the reinstatement of the 90 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 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 R. WAYNE JOHNSON 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.