Clay v. Lumpkin ( 2021 )

Case: 20-50935 Document: 00515928450 Page: 1 Date Filed: 07/07/2021
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
July 7, 2021
No. 20-50935 Lyle W. Cayce
Clerk
Kenneth Clay,
Petitioner—Appellant,
versus
Bobby Lumpkin, Director, Texas Department of Criminal Justice,
Correctional Institutions Division,
Respondent—Appellee.
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:19-CV-1241
Before Southwick, Graves, and Costa, Circuit Judges.
Per Curiam:*
Kenneth Clay, formerly Texas prisoner # 2228320, seeks a certificate
of appealability (COA) to challenge the district court’s denial of his 28
U.S.C. § 2254 petition, in which he challenged the length of his
imprisonment after being sentenced to three years for a guilty plea conviction
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 20-50935 Document: 00515928450 Page: 2 Date Filed: 07/07/2021
No. 20-50935
for possession of a controlled substance. Clay also moves for the
appointment of counsel.
To obtain a COA, Clay must make “a substantial showing of the
denial of a constitutional right.” 28 U.S.C. § 2253(c)(2); see Miller-El v.
Cockrell, 537 U.S. 322, 336 (2003). During the pendency of this appeal, Clay
was released from state custody. Clay’s claims have been rendered moot by
his release. See Spencer v. Kemna, 523 U.S. 1, 7-18 (1998); Bailey v.
Southerland, 821 F.2d 277, 278-79 (5th Cir. 1987). Therefore, this appeal is
DISMISSED AS MOOT. Clay’s motions for a COA and appointment of
counsel are, likewise, DENIED AS MOOT.
2