Michael Bohannan v. William Stephens, Director

PER CURIAM: * Michael Wayne Bohannan, Texas prisoner # 1841746, was convicted of two counts of aggravated rape with a deadly weapon, *574 and he instituted the instant 28 U.S.C. § 2254 proceedings to challenge, among other things, a revocation of his release. This court granted Bohannan a certificate of appealability (COA) on whether the extension of his discharge date was a collateral consequence sufficient to maintain his § 2254 challenge to his revocation. Bohannan has since been convicted on a new charge and is currently under the custody of the Texas Department of Criminal Justice, Correctional Institutions Division, serving a life sentence. Because Bohannan’s new conviction and concomitant incarceration effectively terminated his release, this action no longer presents a live case or controversy. 1 See Tex. Gov’t Code § 508.001(5); Spencer v. Kemna, 523 U.S. 1, 7, 12-13, 118 S.Ct. 978, 140 L.Ed.2d 43 (1998); United States v. Clark, 193 F.3d 845, 847-48 (5th Cir.1999). We decline to consider the Respondent’s timeliness argument because no COA was issued on it. See Simmons v. Epps, 654 F.3d 526, 535 (5th Cir.2011), cert. denied, — U.S. —, 132 S.Ct. 2374, 182 L.Ed.2d 1025 (2012). We also deny Bohannan’s motion to strike Respondent’s brief. DISMISSED as MOOT; MOTION DENIED. Footnotes [*] Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under *574 the limited circumstances set forth in 5th Cir. R. 47.5.4. [1] Even assuming, arguendo, that Bohannan's new life sentence does not moot his § 2254 challenge to his revocation, we would nonetheless affirm the district court’s denial of relief because Bohannan’s previously scheduled release date would have passed before he could obtain a new revocation hearing. See United States v. Kirklin, 701 F.3d 177, 179 (5th Cir.2012). In Kirklin, a direct appeal from the revocation of supervised release, we declined to grant relief on a plain sentencing error after concluding that the error did not affect Kirklin's substantial rights because he was scheduled for release in less than thirty days. Id. We explained that ”[b]y the time it would be possible for Kirklin to be given a new sentencing hearing, even more time would have passed." Id. at 179-80. Similarly, here, Bohannan’s previously scheduled release is due to expire in approximately two weeks, on July 9, 2013, and by the time he could obtain a new hearing even more time would have passed.