Dick v. Cain

Filing

UNPUBLISHED OPINION FILED. [08-31054 Dismissed as Moot] Judge: WED , Judge: JES , Judge: LHS. Mandate pull date is 09/28/2010 [08-31054]

Dick v. Cain

Doc. 0

Case: 08-31054

Document: 00511226279

Page: 1

Date Filed: 09/07/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 08-31054 S u m m a r y Calendar September 7, 2010 Lyle W. Cayce Clerk

W E S L E Y DICK P e t it io n e r - Appellant v. B U R L CAIN, WARDEN, LOUISIANA STATE PENITENTIARY, R e s p o n d e n t - Appellee

A p p e a l from the United States District Court fo r the Eastern District of Louisiana U S D C No. 2:05-CV-1467

B e fo r e DAVIS, SMITH, and SOUTHWICK, Circuit Judges. P E R CURIAM:* W e s le y Dick was denied relief under 28 U.S.C. § 2254. On appeal, we c o n c lu d e that his application is moot. Therefore, we DISMISS. I n 2001, Wesley Dick, former Louisiana prisoner # 208490, was sentenced t o life imprisonment without benefit of probation or suspension of sentence, the t h e n -m a n d a to r y sentence for heroin distribution. Subsequently, the Louisiana le g is la t u r e retroactively reduced the penalty for heroin distribution to a term of fiv e to fifty years. See La. Rev. Stat. Ann. §§ 15:308, 40:966(B)(1).
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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
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Dockets.Justia.com

Case: 08-31054

Document: 00511226279 Page: 2 No. 08-31054

Date Filed: 09/07/2010

I n 2006, while Dick's Section 2254 petition was pending, a state trial court v a c a t e d his life sentence. He was then sentenced to ten years of imprisonment w it h credit for time served, resulting in his release. However, a state appellate c o u r t vacated that new sentence and reimposed the life sentence. State v. Dick, 9 4 3 So. 2d 389, 390 (La. App. 1 Cir. 2006). The Louisiana Supreme Court a ffir m e d the reimposed life sentence. State v. Dick, 951 So. 2d 124, 129-33 (La. 2 0 0 7 ). The district court denied Dick leave to supplement his arguments with s t a t e law challenges to the reimposed life sentence, then dismissed Dick's S e c tio n 2254 application. We granted a certificate of appealability ("COA") on w h e t h e r "the district court erred in denying relief on Dick's claim that his s e n te n c e was excessive under the Eighth Amendment and [whether] the district c o u r t abused its discretion in denying his motion to supplement his § 2254 a p p lic a t io n ." The parties have notified the court that the Governor of Louisiana c o m m u t e d Dick's life sentence to ten years under Section 15:308(C). Dick was r e le a s e d on parole in July 2009. The State asserts the appeal is now moot. B e c a u s e Dick was in state custody when he filed his application, he s a t is fie d the "in custody" requirement of Section 2254. See Spencer v. Kemna, 5 2 3 U.S. 1, 7 (1998); 28 U.S.C. § 2254(a). A live case or controversy must c o n t in u e throughout the litigation. See Spencer, 523 U.S. at 7. Whether an a p p e a l is moot due to the lack of a case or controversy is a jurisdictional q u e s t io n . Bailey v. Southerland, 821 F.2d 277, 278 (5th Cir. 1987). T h e COA only permits Dick to pursue the arguments that his life sentence w a s excessive and that the record should be supplemented. Dick's life sentence w a s commuted to ten years, and he is thus no longer serving either the original life sentence imposed in 2001 or the life sentence reimposed in 2006. The life s e n te n c e no longer exists. Supplementing the record to provide evidence

r e g a r d in g the sentence serves no purpose. The case or controversy for which we 2

Case: 08-31054

Document: 00511226279 Page: 3 No. 08-31054

Date Filed: 09/07/2010

g r a n t e d a COA is at an end. See id. (holding that appeal was moot where the m a in goal of the habeas petition was release from prison). Dick suggests that the appeal is not moot because he is still on probation. That is true, but Dick has offered no challenge to his current sentence or parole t e r m . Because the only sentence being challenged on appeal has been commuted a n d a new sentence exists, the appeal is DISMISSED AS MOOT.

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