Tolley v. Johnson ( 2000 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-11157
Summary Calendar
ROGER DEAN TOLLEY
Petitioner - Appellant
v.
GARY L JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, INSTITUTIONAL DIVISION
Respondent - Appellee
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Appeal from the United States District Court
for the Northern District of Texas
USDC No. USDC No. 4:98-CV-823-Y
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July 28, 2000
Before KING, Chief Judge, and SMITH and PARKER, Circuit Judges.
PER CURIAM:*
Roger Dean Tolley, Texas inmate # 440135, appeals the
dismissal of his petition for habeas corpus relief filed pursuant
to 28 U.S.C. § 2254. The district court dismissed the petition
after it determined that Tolley’s release on mandatory
supervision rendered his claims for habeas corpus relief moot.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 99-11157
-2-
The district court correctly noted that, once federal
jurisdiction has attached in the district court, it is not
defeated by the release of the petitioner prior to the completion
of the proceedings. Carafas v. LaVallee, 391 U.S. 234, 238
(1968)). Tolley was incarcerated by reason of the parole
revocation at the time his petition was filed, which is all the
“in custody” provision of § 2254 requires. Carafas, 391 U.S. at
238. Thus, despite his subsequent release from imprisonment,
Tolley met the “in custody” requirement of § 2254.
The district court also correctly noted that, even though
jurisdiction is not defeated when a prisoner is released on
parole, a released prisoner’s claims for habeas corpus relief may
be rendered moot by his release. The case-or-controversy
requirement demands that “some concrete and continuing injury
other than the now-ended incarceration or parole -- some
``collateral consequence’ of the conviction -- must exist if the
suit is to be maintained.” Spencer v. Kemna, 118 S. Ct. 978, 983
(1998) (quoting Carafas, 391 U.S. at 237-38)). The district
court failed, however, to observe that Tolley’s mandatory
supervision, which is the equivalent of parole, has not ended.
The case-or-controversy requirement demands that “some
concrete and continuing injury other than the now-ended
incarceration or parole -- some ``collateral consequence’ of the
conviction -- must exist if the suit is to be maintained.” 523
U.S. 1, 7-8 (1998) (quoting Carafas, 391 U.S. at 237-38).
No. 99-11157
-3-
The extension of Tolley’s parole release date until June 23,
2007, is a consequence of his parole revocation, collateral if
not direct. Unlike the petitioner in Spencer, who had already
completed his parole when he filed his petition for habeas
corpus, Tolley remains under the restrictions of mandatory
release. See id. at 6; cf. United States v. Clark, 193 F.3d
845, 847 (5th Cir. 1999) (defendant appealing extension of
supervised release failed to demonstrate “collateral consequence”
because supervised release had ended when he filed appeal).
Contrary to the magistrate judge’s assessment, it is not release
from his term of re-incarceration, but release from the
restrictions of an extended mandatory release that Tolley seeks.
Thus, Tolley has alleged that he has an actual injury traceable
to the respondent’s purported wrongful parole revocation which
can be redressed by a favorable judicial decision.
Accordingly, Tolley’s petition for habeas corpus relief is
not moot. The district court’s dismissal is VACATED, and the
case is REMANDED to the district court for further proceedings.