Opinion
Civil Action No. 4:02-CV-570-Y
November 13, 2002
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 pursuant to the provisions of 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 Clyde Lee Russell, TDCJ-ID #846766, was in custody of the Texas Department of Criminal Justice, Institutional Division.
Respondent Janie Cockrell is the Director of the Texas Department of Criminal Justice, Institutional Division (TDCJ).
C. ISSUES
In the instant petition for writ of habeas corpus, filed on June 26, 2002, Russell raises various claims regarding his continued incarceration and applicable time credits pertaining to a 1993 state conviction for possession of cocaine, for which he was sentenced to five years' imprisonment in 1995. (State Habeas R. at 33.) Ex parte Russell, No. 41, 751-03 (Tex.Crim.App. Aug. 30, 2000). Telephonic communication with the North Texas Intermediate Sanction Facility in Fort Worth, Texas, reveals that Russell's sentence was fully discharged and he was unconditionally released from the custody of TDCJ on November 10, 2002.
D. MOOTNESS
The question in this case then becomes whether dismissal is warranted on the basis that the case has been rendered moot by Russell's release because he can no longer satisfy the case-or-controversy requirement of Article III of the Constitution. A habeas petition typically challenges prison officials' authority to keep a prisoner in custody; thus, in general, the petitioner's release moots a habeas petition. See Lane v. Wililams, 455 U.S. 624, 632 (1982). A petition is not moot, however, if the released prisoner can show that the challenged conviction will cause him to suffer some future collateral consequences. Id.; Carafas v. Lavalle, 391 U.S. 234 (1968). Thus, where the petition challenges the validity of the petitioner's underlying conviction, he can often satisfy the case-or-controversy requirement by showing that the conviction affects his ability to vote, engage in certain businesses, serve as juror, or hold public office. Carafas, 391 U.S. at 237. While the presumption of collateral consequences may comport with the reality in the context of criminal convictions, the Supreme Court has held that the same cannot be said for other situations where a conviction is not being attacked. Spencer v. Kemna, 523 U.S. 1, 7-8 (1998). See also Lane, 455 U.S. at 624 (holding that where prisoner only challenges his sentence, and not his conviction, Carafas does not apply). Accordingly, Spencer dictates a cautious approach to the presumption of collateral consequences, requiring the petitioner to affirmatively allege and demonstrate such consequences. See Beachem v. Schriro, 141 F.3d 1292, 1294 (8th Cir.), cert. denied, 525 U.S. 938 (1998).
In the instant petition, Russell does not challenge the validity of his underlying conviction or sentence, only the execution of his sentence and the alleged denial of various time credits toward completion of his sentence. As indicated, the principles enunciated by Spencer militate against a presumption of collateral consequences, and Russell has made no demonstration whatsoever that he will suffer any collateral consequences. Because there is nothing for the court to remedy, dismissal of this petition as moot is appropriate due to the expiration and discharge of Russell's sentence and his unconditional release from federal custody. See Branton v. Cockrell, No. 4:01-CV-0637-A, 2001 WL 1669386, at *23 (N.D. Tex. Dec. 27, 2001); Loth v. Guzik, No. 4:00-CV-0377-G, 2001 WL 649650, at * 2-3 (N.D. Tex. May 16, 2001), adopted, 2001 WL 649656 (N.D. Tex. June 8, 2001).
II. RECOMMENDATION
It is recommended that this petition for writ of habeas corpus be dismissed as moot.
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 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 hereby extending the deadline within which to file, not merely place in the mail, specific written objections to the United States Magistrate Judge's proposed findings, conclusions and recommendation until December 4, 2002. Pursuant to Douglass v. United Services Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc), failure to file specific written objections within the specified time shall bar a de novo determination by the district court of any finding of fact or conclusion of law and shall bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any unobjected-to proposed factual findings and legal conclusions accepted by the district court.
IV. ORDER SETTING DEADLINE FOR OBJECTIONS TO PROPOSED FINDINGS, CONCLUSIONS AND RECOMMENDATION
Pursuant to Section 636, Title 28 of the United States Code, it is hereby ORDERED that each party is granted until December 4, 2002, to serve and file, not merely place in the mail, 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, a 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, be and hereby is returned to the docket of the United States District Judge.