Opinion
No. 3-03-CV-2554-H.
July 15, 2004
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the District Court in implementation thereof, the subject cause has previously 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 Case: This is a petition for habeas corpus relief brought by a state prisoner pursuant to 28 U.S.C. § 2254.
Statement of the Case: On August 28, 1998, upon his plea of not guilty and after having waived trial by jury Lewis was tried by the court for the offense of unlawful possession of a controlled substance as alleged in the indictment returned in Cause No. F-98-45919-TK. The court found Petitioner guilty and assessed a term of two years in a Texas state jail, but probated the sentence for a term of five years. Thereafter Petitioner's probation was modified requiring that he participate in the Dallas County Jail Chemical Dependency Treatment Program which required his confinement in the Dallas County Jail from June 28, 2000, until September 5, 2000. After having participated in the drug program Lewis's probated sentence was ultimately revoked and on March 21, 2003, he was sentenced to a term of fifteen months in a Texas state jail. In his petition Lewis does not attack the legality of his underlying conviction, but rather seeks to have the period of 69 days during which he was incarcerated in the drug program credited against his fifteen month sentence.
Findings and Conclusions: Although process was served on Respondent due to the fact that Lewis was then confined serving his fifteen month sentence, on June 28, 2004, Respondent filed his advisory in response to this court's inquiry dated June 3, 2004, confirming that Petitioner had fully completed and satisfied the fifteen month sentence. Therefore, there is presently no case or controversy over which this court has jurisdiction and the petition should be dismissed, the same being moot. E.g. see United States v. Clark, 193 F.3d 845, 847-48 (5th Cir. 1999) (dismissing as moot an appeal of the District Court's order extending a prisoner's period of supervised release because the period of supervised release had been fully completed).
RECOMMENDATION:
For the foregoing reasons it is recommended that the petition be dismissed as moot.
A copy of this recommendation shall be transmitted to Petitioner and counsel for Respondent.