Gray v. Johnson ( 1998 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. No. 97-41492
USDC No. G-97-CV-586
TRAVIS DALE GRAY,
Petitioner-Appellant,
versus
GARY L. JOHNSON, DIRECTOR, TEXAS
DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellee.
---------------------
Appeal from the United States District Court
for the Southern District of Texas
---------------------
April 13, 1998
Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.
BY THE COURT:
Texas state prisoner Travis Dale Gray, no. 542293, has
requested from this court a certificate of appealability (COA) to
appeal the district court’s denial of his 28 U.S.C. § 2254
petition for federal habeas relief. He also requests in forma
pauperis (IFP) status on appeal.
Gray argues that the Texas Department of Criminal Justice
(TDCJ) has erroneously computed the length of his term of
imprisonment and that he should be entitled to mandatory
supervised release on January 23, 1999. Any potential dispute
between Gray and TDCJ "has not ripened into the definite and
concrete controversy" necessary for the adjudication of Gray’s
O R D E R
No. 97-41492
- 2 -
claim. Cross v. Lucius, 713 F.2d 153, 159 (5th Cir. 1983). The
controversy is more hypothetical than real and, as such, does not
present a federal court with the Article III case or controversy
requisite to its jurisdiction.
Although the district court did not specify whether its
dismissal was with or without prejudice, such a dismissal is
usually with prejudice. See Fed. R. Civ. P. 41(b). Gray’s
requests for a COA and IFP are GRANTED and the judgment of the
district court is MODIFIED to be WITHOUT PREJUDICE to allow him
to bring his claim once the controversy is ripe. The judgment is
AFFIRMED as MODIFIED.