Adair v. Dretke , 150 F. App'x 329 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
For the Fifth Circuit October 6, 2005
Charles R. Fulbruge III
Clerk
No. 04-51208
JOHN ADAIR,
Petitioner-Appellee-Cross-Appellant,
VERSUS
DOUG DRETKE, Director, Texas Department Of Criminal Justice,
Correctional Institutions Division,
Respondent-Appellant-Cross-Appellee.
Appeal from the United States District Court
For the Western District of Texas, San Antonio Division
(5:04-CV-353 )
Before JONES, DeMOSS, and OWEN, Circuit Judges.
PER CURIAM:*
The parties cross-appeal the magistrate judge’s grant of
habeas to petitioner John Adair and the magistrate’s order
reinstating good time credits, lost by Adair as a result of prison
disciplinary proceedings against him. We GRANT the Appellant’s
motion to supplement the record and DISMISS the appeal and Adair’s
cross-appeal as 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this opinion should not be published and is not precedent except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.
FACTUAL AND PROCEDURAL BACKGROUND
Adair was convicted of burglary of a habitation with intent to
commit theft while under the influence of an illegal drug, based
upon his guilty plea in the courts of Texas on February 1, 1989.
Adair was sentenced to fifteen years’ imprisonment and did not
challenge his conviction. Adair completed a Substance Abuse
Treatment Program (“SATP”) and was released on mandatory
supervision on May 1, 1998. Adair later tested positive for
cocaine use, in violation of parole conditions; and his parole was
revoked on September 21, 2001. Adair was again assigned to the
custody of the Texas Department of Criminal Justice (the
“Department”) and to SATP. Between September 23 and October 27,
2003, Adair was found guilty by the Department of refusing to
participate in SATP activities, including counseling sessions,
essay assignments, and completion of the treatment plan. At the
disciplinary hearings, Adair admitted his refusal to participate
and argued he was no longer required to participate because he had
refused SATP by signing a refusal of parole. The Department
determined Adair violated the Department’s rule that an inmate
assigned to a treatment program must participate in the program.
The disciplinary proceedings resulted in a forfeiture of 275 days
of good time credits.
Adair filed grievances, arguing the Department lacked
authority under Texas law to punish him for refusing to participate
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in SATP because he signed a refusal of parole. Each of Adair’s
disciplinary actions was upheld by the Department because: unit
assignments are determined by the Department, and therefore Adair’s
assignment to SATP was proper; an inmate must participate in a
treatment program while assigned to the program; the disciplinary
charges were appropriate to the offenses; the guilty verdict was
supported by a preponderance of evidence; Adair pleaded guilty; due
process requirements were satisfied; and the punishment fell within
the Department’s guidelines.
Adair did not file a petition for writ of habeas corpus with
the state courts of Texas. On April 14, 2004, he filed his
petition for writ of habeas corpus in district court, under 28
U.S.C. § 2254. Adair alleged in his petition that he was
transferred on August 6, 2003, to the LeBlanc Unit for drug
treatment as a condition for release on parole. He alleged that he
refused parole “for legal reasons,” and signed two refusal forms.
Despite his refusal, Adair received several disciplinary charges
for his refusal to participate in the SATP. Adair claimed his due
process rights were violated based upon the arbitrary revocation of
his state-created right to his good conduct time and the
Department’s alleged failure to offer him a refusal of SATP until
after he had been found guilty of the disciplinary infractions.
Adair argued that Texas Government Code § 501.0931(h) created a
liberty interest in the termination of SATP and being released from
the treatment housing unit upon an inmate’s refusal to participate
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in the SATP program. Adair also claimed his right to equal
protection was violated because he was not treated the same as
other similarly situated inmates.
The parties consented to proceed before a magistrate judge,
who entered an order granting Adair’s petition. The magistrate
judge concluded that Adair was not required to exhaust his claims
in a state habeas petition because the claims related to loss of
good time credits could not have been raised in state court and
because Adair’s filing of grievances before the Department
satisfied the exhaustion requirement. The magistrate judge ordered
the Department to restore 275 days of Adair’s good time credits
based upon the conclusion that the Department’s deprivation of
Adair’s good time credits was an arbitrary, capricious, and
irrational state action, infringing upon Adair’s state-created
right not to be arbitrarily or capriciously deprived of good time
credits and Adair’s Fourteenth Amendment substantive due process
rights.
Both parties filed Rule 59(e) motions to alter or amend the
judgment. The magistrate judge denied Adair’s Rule 59 motion and
granted, in part, the Department’s, amending the judgment to order
the Department to restore only 255 days of good time credits to
Adair. The reduction of restored time was calculated based upon
the determination that twenty days of credits was punishment for
refusal to obey an order and related to institutional security, as
opposed to refusal to obey the SATP. Based upon this distinction,
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the magistrate amended the judgment and denied restoration of those
twenty days of credits.
The Government filed a notice of appeal to both the original
and amended judgments. Adair filed a notice of appeal and a
request for Certificate of Appealability, which was denied by the
magistrate judge. Adair cross-appeals, despite the magistrate
judge’s denial of COA and even though Adair has not filed a request
for COA to this Court.
DISCUSSION
We must dismiss both the State’s appeal and Adair’s cross-
appeal as moot. “A controversy is mooted when there are no longer
adverse parties with sufficient legal interests to maintain the
litigation. A moot case presents no Article III case or
controversy, and a court has no constitutional jurisdiction to
resolve the issues it presents.” Goldin v. Bartholow, 166 F.3d
710, 717 (5th Cir. 1999) (internal citations omitted).
“Accordingly, an actual, live controversy must remain at all stages
of federal court proceedings, both at the trial and appellate
levels. That is, the requisite personal interest that must exist
at the commencement of the litigation (standing) must continue
throughout its existence (mootness).” De la O v. Hous. Auth. of El
Paso, 417 F.3d 495, 499 (5th Cir. 2005) (internal quotation marks
and citations omitted).
Whether an appeal is moot is a jurisdictional issue because it
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implicates Article III’s requirement of a live case or controversy.
Bailey v. Southerland, 821 F.2d 277, 278 (5th Cir. 1987). This
Court must raise the question of mootness sua sponte when, as here,
it is not raised by a party, and the Court reviews the question de
novo. See Donovan v. Air Transp., Dist. Lodge No. 146, 754 F.2d
621, 624 (5th Cir. 1985); see also Bailey, 821 F.2d at 278.
By motion to supplement the record, which is hereby GRANTED,
the Department informs the Court that Adair has been released to
mandatory supervision and provides Adair’s certificate
demonstrating such release. This Court has held that a federal
prisoner’s appeal from the denial of a § 2241 petition, seeking
expungement of disciplinary reports and restoration of good time,
was moot because the Court could not provide the requested relief
and the prisoner did not allege he would be subject to future
adverse consequences. Bailey, 821 F.2d at 278. Similarly here,
Adair does not allege that in the wake of his release to mandatory
supervision he will be subject to future adverse consequences
related to his petition. As the restoration of good time credits
sought by Adair and granted in part by the magistrate served to
accelerate his release date, the relief granted by the magistrate
and appeals from that judgment have no continuing relevance after
Adair’s release.
Texas law confirms that Adair’s claims and the relief sought
are now moot. His good credit time will not carry over to a
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subsequent confinement. See TEX. GOV’T CODE ANN. § 498.004(b). “On
the revocation of parole or mandatory supervision of an inmate, the
inmate forfeits all good conduct time previously accrued.” Id.;
see also Ex parte Henderson, 645 S.W.2d 469, 472 (Tex. Crim. App.
1983) (en banc). In the context of a loss of federal good time
credits, we have concluded that the possibility of a future federal
confinement would have been unaffected by lost good time credits.
Bailey, 821 F.2d at 278-79. There, the lack of a potential future
adverse affect on the petition rendered the appeal relating to the
loss of the credits moot. Id. Similarly here, under Texas law,
Adair has no claim that he might continue to suffer “collateral
consequences” from the loss of good credit time alleged in his
instant petition or that he might in the future be harmed by the
results of his prison disciplinary proceedings related to refusal
to attend SATP. See Sinclair v. Blackburn, 599 F.2d 673, 675 (5th
Cir. 1979) (citing Carafas v. LaValle, 391 U.S. 234, 237-38
(1968)); see also Alwan v. Ashcroft, 388 F.3d 507, 511 (5th Cir.
2004). Thus, Adair’s cross-appeal is moot and must be dismissed.
With respect to the Department’s appeal from the magistrate’s
order, we must also dismiss for mootness. The only relief sought
by the Department is the reversal of the magistrate’s order, that
is, the reversal of the order requiring reinstatement of a
deprivation of Adair’s good time credits. As discussed above, this
relief would have no effect on either party after Adair’s release.
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Therefore, no showing has been made of a collateral consequence on
either appellant or cross-appellant from the magistrate’s order.
Accordingly, the issues raised are moot, and no article III case or
controversy exists. Because we must dismiss for lack of
jurisdiction, we do not reach and express no opinion on the
magistrate’s orders.
MOTION TO SUPPLEMENT GRANTED; CASE ON APPEAL DISMISSED AS MOOT.
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