Day v. US Parole Commission ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS May 7, 2003
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-40248
Summary Calendar
GEORGE ALLEN DAY
Petitioner - Appellant
v.
UNITED STATES PAROLE COMMISSION
Respondent - Appellee
--------------------
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 1:02-CV-354
--------------------
Before KING, Chief Judge, and WIENER and CLEMENT, Circuit Judges.
PER CURIAM:*
George Allen Day, a former federal prisoner, appeals the
district court’s dismissal of his 28 U.S.C. § 2241 petition,
challenging the October 2001 decision to deny him parole and
seeking immediate release. Day concedes that, subsequent to
filing the instant petition, he was released from prison.
However, he asserts that dismissal of his petition was error
because he met the jurisdictional requirement of being “in
custody” at the time he filed the petition.
*
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that this opinion should not be published and is not precedent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. 03-40248
-2-
Day misapprehends the district court’s dismissal. His
petition was dismissed as moot, not for lack of jurisdiction.
Day’s petition challenged only the procedures by which the Parole
Commission denied him parole in October 2001 and requested relief
in the form of immediate release from prison. The petition
presents no live case or controversy following Day’s release from
prison, and it was thus properly dismissed as moot. See Spencer
v. Kemna, 523 U.S. 1, 7-18 (1998); Rocky v. King, 900 F.2d 864,
867 (5th Cir. 1990). The appeal is without arguable merit and is
therefore DISMISSED as frivolous. See Howard v. King, 707 F.2d
215, 219-20 (5th Cir. 1983); 5TH CIR. R. 42.2.
APPEAL DISMISSED.