Jackie Martin West v. United States , 886 F.2d 331 ( 1989 )

886 F.2d 331

Unpublished Disposition
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
Jackie Martin WEST, Petitioner-Appellant,
v.
UNITED STATES of America, Respondent-Appellee.

No. 88-6396.

United States Court of Appeals, Sixth Circuit.

Sept. 29, 1989.

Before MERRITT and RYAN, Circuit Judges, and BAILEY BROWN, Senior Circuit Judge.

ORDER

1

This pro se federal prisoner appeals the district court's order dismissing his motion to vacate, set aside or correct sentence filed pursuant to 28 U.S.C. Sec. 2255. The appeal has been referred to a panel of the court pursuant to Rule 9(a), Rules of the Sixth Circuit. Upon consideration of the record and the briefs, the panel unanimously agrees that oral argument is not needed. Fed.R.App.P. 34(a).

2

In June 1980, Jackie M. West pleaded guilty to one count of conspiracy to transport stolen property in violation of 18 U.S.C. Sec. 371. He was sentenced to serve a term of sixty months. After serving twenty months, he was released on parole. His parole was revoked and he served another twenty months before being released on parole a second time. Parole was revoked again in January 1988; West was given a presumptive release date of March 1989. He was finally released from federal custody on May 16, 1989.

3

Upon review we note that West's release from custody has rendered the appeal moot. See Lane v. Williams, 455 U.S. 624, 631 (1981). West did not expressly seek to enter a new plea or to proceed to trial on the criminal charge; he sought only to attack his sentence. While the appeal has been pending, West has completed serving his sentence. Under these circumstances, the case is moot. See 455 U.S. at 630-31.

4

Traditionally, a controversy which becomes moot before final appellate adjudication is remanded to the district court with instructions to vacate judgment and dismiss the case. Constangy, Brooks & Smith v. NLRB, 851 F.2d 839, 842 (6th Cir.1988). However, where mootness results from circumstances attributable to one of the parties, the appeal may be dismissed outright. Karcher v. May, 484 U.S. 72 (1987); Constangy, 851 F.2d at 842. The present case became moot due to defendant's release, an event attributable to respondent.

5

Accordingly, the appeal is hereby dismissed as moot. Rule 9(b)(5), Rules of the Sixth Circuit.