Opinion
3:03-CV-0734-R
February 26, 2004
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the Court, this case has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS: Type of Case: This is a petition for habeas corpus relief filed by a state inmate pursuant to 28 U.S.C. § 2254.
Parties: Petitioner is currently residing in Rusk, Texas. At the time of filing the petition, he was incarcerated at the Hutchins State Jail of the Texas Department of Criminal Justice-Correctional Institutions Division (TDCJ-CID) in Dallas, Texas. Respondent is the Director of TDCJ-CID.
Statement of Case: On May 2, 1997, Petitioner pled guilty to the offense of aggravated assault with a deadly weapon in the 402nd Judicial District Court of Wood County, Texas, in cause number 15,003-97. The trial court deferred a finding of guilty and placed him on probation/community supervision for a five-year term. Thereafter on March 30, 2001, the trial court revoked Petitioner's probation, adjudicated him guilty, and sentenced him to four years imprisonment.
Petitioner has filed two state habeas applications pursuant to art. 11.07, Texas Code of Criminal Procedure. The first application, filed on September 19, 2002, was dismissed by the Texas Court of Criminal Appeals on January 15, 2003, for failure to comply with the time credit dispute resolution procedures under Tex. Gov't Code § 501.0081(b). On June 17, 2003, Petitioner filed the second application, which the Court of Criminal Appeals denied without written order on September 3, 2003.
In his federal petition, filed on February 26, 2003, Petitioner does not challenge his conviction. Instead he argues that TDCJ's refusal to give him credit for the time spent while on community supervision violates his constitutional rights. (Petition at ¶ 18).
Although the petition and Petitioner's response, use the word parole and parole revocation, the record clearly reflects Petitioner was released on deferred adjudication probation not parole, and that the deferred adjudication probation was subsequently revoked on March 30 2001.
Petitioner initially filed this action in the Eastern District of Texas, Tyler Division, which in turn transferred it to this court on April 10, 2003, because Petitioner was confined within the Dallas Division of the Northern District of Texas. See Wadsworth v. Johnson. 235 F.3d 959, 961 (5th Cir. 2000); 28 U.S.C. § 2241(d).
In response to this court's order to show cause, Respondent filed an answer along with the state court record. He seeks dismissal of the petition on exhaustion and limitation grounds. Alternatively, he argues the petition lacks any merits. Although Petitioner did not file a reply, he did inform the court of his release on parole and his new address. Findings and Conclusions: Petitioner's release requires the court to examine whether it has jurisdiction over the instant action. See Fed.R.Civ.P. 12(h)(3) (stating that "[w]henever it appears by suggestion of the parties or otherwise that the court lacks jurisdiction of the subject matter, the court shall dismiss the action").
The undersigned has confirmed telephonically with TDCJ that Petitioner was released on parole on January 9, 2004.
"Article III of the Constitution limits federal `Judicial Power,' that is, federal-court jurisdiction, to `Cases' and `Controversies.'" United States Parole Comm'n v. Geraghty., 445 U.S. 388, 395 (1980). A case becomes moot "when the issues presented are no longer live' or the parties lack a legally cognizable interest in the outcome." Id. at 396 (quoting Powell v. McCormack, 395 U.S. 486, 496 (1969)). When a petitioner does not attack the validity of his conviction, but merely contests the imposition and duration of his confinement, the case becomes moot when he is no longer confined. Lane v. Williams. 455 U.S. 624, 631 (1982). "If a dispute has been resolved or if it has evanesced because of changed circumstances, including the passage of time, it is considered moot." American Med. Ass'n v. Bowen, 857 F.2d 267, 270 (5th Cir. 1988).
The only relief sought in this matter was the restoration of "time credits" allegedly forfeited as a result of the revocation of deferred adjudication probation or community supervision. The Texas Government Code section 498.003(a) provides in pertinent part that "[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." (Emphasis added). Since Jones has been released on parole at this time, his ground for relief is moot and this court lacks jurisdiction to consider his claim. Therefore, the issues raised in this habeas corpus petition are moot and the petition should be dismissed. RECOMMENDATION:
Because the petition is moot. There is no need to consider Respondent's answer which seeks dismissal because of Petitioner's alleged failure to exhaust state remedies or because the petition is time-barred.
For the foregoing reasons, it is recommended that the petition for a writ of habeas corpus be dismissed for want of jurisdiction the same being moot. A copy of this recommendation shall be mailed to Petitioner and counsel for Respondent.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant toDouglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) ( en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten-day period may bar a de novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.