Opinion
CIVIL ACTION NO. 4:03-CV-610-A
September 15, 2003
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:
1. 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 Douglas Wayne Sanders, TDCJ-CID #1041609, was incarcerated in the Bridgeport Correctional Center of the Texas Department of Criminal Justice, Correctional Institutions Division in Bridgeport, Texas at the time he filed the instant petition. Sanders is no longer confined.
Respondent Douglas Dretke is the Director of the Texas Department of Criminal Justice, Correctional Institutions Division.
C. PROCEDURAL HISTORY
On May 8, 2001, Sanders pleaded guilty to felony driving while intoxicated, and the trial court sentenced him to five years' confinement. (State Habeas R. at 24.) Sanders did not appeal his conviction. (Federal Pet. at 3.) On February 11, 2003, Sanders filed a state application for habeas corpus relief, challenging the constitutionality of the mandatory-supervision statute and the denial of his release to mandatory supervision, which the Texas Court of Criminal Appeals denied without written order. Ex parte Sanders, No. 55, 330-01 (Tex. Grim. App. May 7, 2003) (not designated for publication). Sanders 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 June 14, 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 June 25, 2003, Sanders was released on parole. (Sept. 10, 2003 phone call to TDCJ.) Sanders has not properly notified this court of his change of address. See N.D. (TEX.) DIST. CT. Loc. R. 1.1(c)(2), 83.13, 83.14.
This failure constitutes an additional reason to deny Sanders habeas corpus relief. FED. R. Civ. P. 41(b); Day v. Cockrell, No. 3:01-CV-1325-P, 2002 WL 31757777, at*1 (N.D. Tex. Nov. 21, 2002).
D. ISSUE
Sanders argues that the mandatory-supervision statute is unconstitutional and that the Board of Pardons and Paroles abused its discretion in denying him mandatory supervision.E. RULE 5 STATEMENT
Dretke believes Sanders has sufficiently exhausted available state remedies on all issues presented and, thus, does not move for dismissal on this ground.
F. DISCUSSION
At the time he filed his federal petition, Sanders challenged as unlawful his then confinement, arguing that the mandatory-supervision statute is unconstitutional and that he should have been released to mandatory supervision. Because he has been released to parole, 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, Sanders 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 delay in release. Id. at 12-14. Thus, Sanders must show that the denial of his release to mandatory supervision and the application of the mandatory-supervision statute will cause or are still causing him to suffer some actual, future harm and that a writ of habeas corpus can prevent this harm. United States v. Clark, 1 93 F.3d 845, 847 (5th Cir. 1999). In this case, Sanders has been released to parole; thus, there are no collateral consequences that could flow from the alleged delay in releasing him from custody. Spencer, 523 U.S. at 7-14; Johnson v. Riveland, 855 F.3d 1477, 1481-82 n. 4 (10th Cir. 1988); Bailey v. Southerland, 821 F.2d 277, 278 (5th Cir. 1987) (per curiam); Brady v. United States Parole Comm'n, 600 F.3d 234, 236 (9th Cir. 1979); Weiss v. United States Bd. of Parole, 451 F.2d 1346, 1347 (5th Cir. 1971); Klossner v. Cockrell, No. 3:03-CV-862-D, 2003 WL 22005918, at *1 (N.D. Tex. Aug. 21, 2003); Weeks. Cockrell, No. 3:02-CV-1426-M, 2002 WL 31757652, at *1-2 (N.D. Tex. Dec. 4, 2002). See generally United States v. Johnson, 529 U.S. 53, 59-60 (2000) (holding term of supervised release remains unaffected by reason of excess time served in prison). In other words, there is no relief that this court could grant Sanders. This case is moot.
Additionally, Sanders has provided this court with no evidence that the Board of Pardons and Paroles reviewed his confinement and actually denied him release to mandatory supervision. Indeed, the time sheet that he submitted with his state habeas application seems to indicate that he was not eligible for mandatory supervision release. (State Habeas R. at 15.) Further, the mandatory-supervision statute has withstood constitutionality challenges. Ex parte Geiken, 28 S.W.3d 553, 557 (Tex.Crim.App. 2000); see also Ferguson v. Estelle, 718 F.2d 730, 733 n. 5 (5th Cir. 1983).
II. RECOMMENDATION
Sanders'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 October 7, 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 October 7, 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.