McLean v. Dir. TDCJ-CID

1

BRENT ALAN MCLEAN, #663292 v. DIRECTOR, TDCJ-CID

Civil Action Nos. 4:20cv470, 4:20cv543

United States District Court, E.D. Texas, Sherman Division

March 20, 2023

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

KIMBERLY C. PRIEST JOHNSON UNITED STATES MAGISTRATE JUDGE.

Pro Se Petitioner Brent Alan McLean, a former inmate confined in the Texas prison system, filed a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. The petition was referred to United States Magistrate Judge Kimberly C. Priest Johnson for findings of fact, conclusions of law, and recommendations for the disposition of the case pursuant to 28 U.S.C. § 636, and the Amended Order for the Adoption of Local Rules for the Assignment of Duties to the United States Magistrate Judge.

I. PROCEDURAL BACKGROUND

Petitioner is challenging the denial of his release to mandatory supervision. Petitioner does not challenge the validity of any conviction here. To provide necessary context, however the Court will provide a brief overview of his underlying convictions.

On August 11, 1993, Petitioner was convicted in Collin County, Texas, in three separate cases for felony driving while intoxicated (“DWI”), and was sentenced to twenty-five years' confinement in each case, sentences to run concurrently, Cause No. 296-80649-93 (Dkt. #31-23, pp. 20-22); Cause No. 296-80650-93 (Dkt. #31-19, pp. 22-24); Cause No. 296-80651-93 (Dkt. #31-16, pp. 47-49). (Dkt. #53-1, p. 3). Petitioner's projected mandatory supervision release date was October 3, 2019, and his maximum discharge date was February 23, 2023. (Dkt. #53-1, p. 3).

On December 12, 2000, Petitioner was released from custody to parole supervision. (Dkt. #53-1, p. 4).

On April 29, 2005, Petitioner was convicted in Denton County, Texas for sexual performance by a child and was sentenced to fifteen years' confinement, Cause No. F-2005-0312-B. (Dkt. #30-20, pp. 38-40; Dkt. #53-1, p. 3). Petitioner's parole supervision was revoked on May 10, 2005. (Dkt. #53-1, p. 4). At the time Petitioner committed the offense of sexual performance by a child, the offense was eligible for release on mandatory supervision. See Tex. Gov't Code § 508.149 (West 2001).^[1]Thus, on October 14, 2016, Petitioner was again released to mandatory supervision. (Dkt. #53-1, p. 5). Petitioner's maximum discharge date was August 27, 2020. (Dkt. #53-1, p. 3).

On September 28, 2017, Petitioner was convicted in Dallas County, Texas for failure to register as a sex offender and was sentenced to five years' confinement, Cause No. F-17-18392-M. (Dkt. #53-1, p. 3). His maximum discharge date was April 3, 2022. (Dkt. #53-1, p. 3). Petitioner's mandatory supervision was revoked on October 25, 2017, and he was transferred to TDCJ custody on October 31, 2017. (Dkt. #53-1, p. 5).

On August 7, 2019, during a time audit for discretionary mandatory supervision release, TDCJ noticed an error in their classification of Petitioner's sentence for failure to register as a sex offender. (Dkt. #31-19, p. 62). TDCJ corrected their records to reflect that the sentence is ineligible for discretionary mandatory supervision because of his prior conviction for sexual performance by a child.^[2] See Tex. Gov't Code § 508.149(a)(15). (Dkt. #31-19, p. 62).

When Petitioner was not released to mandatory supervision on October 3, 2019 (as he had expected based on his Collin County DWI sentences), Petitioner filed three applications for state habeas corpus relief, arguing that his Collin County DWI convictions were his “holding” offenses, which controlled his release date to mandatory supervision.^[3]The Texas Court of Criminal Appeals (“TCCA”) denied all three state habeas applications.^[4](Dkt. #31-17; Dkt. #31-20; Dkt. #39-1).

On May 15, 2020,^[5]Petitioner, while confined at the Estelle Unit, filed the instant federal petition challenging the denial of his release to mandatory supervision. The petition was originally filed in the United States District Court for the Northern District of Texas, Dallas Division, but it was transferred to this Court on June 15, 2020. (Dkt. #5). The thrust of Petitioner's argument is that his Collin County DWI convictions were his “holding” offenses, which controlled his release date to mandatory supervision. As relief, Petitioner asks the Court “to re-instate his legal, statutory mandatory release date in his [Collin County DWI] holding conviction, i.e., 10-01-2019, and order the Texas Board of Pardons and Parole to honor said legal release date; releasing him immediately to mandatory supervision.” (Dkt. #3, p. 7). On March 31, 2021, the Director filed a response, arguing that Petitioner's claims are time-barred, and alternatively, Petitioner is ineligible for release on mandatory supervision. (Dkt. #29). Petitioner filed a reply on May 28, 2021. (Dkt. #36).

In August 2022, Petitioner filed a “Motion to Amend Application” (Dkt. #49), which the Court construed as a motion to supplement his petition. (Dkt. #51). A few months later, Petitioner filed an “Emergency Motion for Release from Continued Confinement.” (Dkt. #50). Petitioner stated that he was released to mandatory supervision on April 25, 2022. (Dkt. #49, p. 1). He also asserted that, while released to mandatory supervision, he absconded but turned himself in on June 21, 2022. (Dkt. #50, p. 1). He claimed that he was reinstated to mandatory supervision on July 8, 2022, but, as of November of 2022, he remained in the Dallas County Jail because there were no available beds at a halfway house. (Dkt. #50, p. 1).

On January 20, 2023, the Court ordered the Director to file a supplemental response addressing the impact, if any, these new factual developments have on Petitioner's habeas petition. (Dkt. #51, p. 2). The Court also ordered the Director to file any supplemental records relevant to the disposition of this cause. (Dkt. #51, pp. 2-3).

On February 22, 2023, the Director filed a supplemental response (Dkt. #53), along with the Affidavit of Charley Valdez (Dkt. #53-1), Program Supervisor V for the Classification and Records Department of the Texas Criminal Justice/Correctional Institutions Division. Valdez's affidavit reflects that: on April 3, 2022, Petitioner discharged his sentence for failure to a sex offender and became eligible for mandatory supervision release; and, on April 26, 2022, Petitioner was released to mandatory supervision.^[6] (Dkt. #53-1, pp. 3, 6). An arrest warrant was issued on June 21, 2022, and executed on June 27, 2022. (Dkt. #53-1, p. 2). The warrant was withdrawn on August 5, 2022, and Petitioner was continued on mandatory supervision with a maximum discharge date for his DWI convictions of February 23, 2023. (Dkt. #53-1, p. 2).

The Director asserts these new factual developments have now rendered Petitioner's federal habeas claims moot. (Dkt. #53). The Director thus argues Petitioner's habeas petition should be dismissed for lack of jurisdiction. (Dkt. #53).

II. ANALYSIS

An action is rendered moot “when the court cannot grant the relief requested by the moving party.” Salgado v. Fed. Bureau of Prisons, 220 Fed.Appx. 256, 257 (5th Cir. Feb. 22, 2007) (citing Bailey v. Southerland, 821 F.2d 277, 278 (5th Cir. 1987) (holding case mooted by petitioner's release from prison)). The issue of whether a case is moot presents a jurisdictional matter because it implicates the Article III requirement that an actual controversy exists at all stages of federal court proceedings. Herndon v. Upton, 985 F.3d 443, 446 (5th Cir. 2021) (citing United States v. Vega, 960 F.3d 669, 672 (5th Cir. 2020)) (citing Spencer v. Kemna, 53 U.S. 1, 7 (1998)); see also Bailey, 821 F.2d at 278. A moot case “presents no Article III case or controversy, and a court has no constitutional jurisdiction to resolve the issues it presents.” Adair v. Dretke, 150 Fed.Appx. 329, 331 (5th Cir. 2005) (quoting Goldin v. Bartholow, 166 F.3d 710, 717 (5th Cir. 1999)). “‘A case becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party.'” Herndon, 985 F.3d at 446 (quoting Knox v. Serv. Emps. Int'l Union, Loc. 1000, 567 U.S. 298, 307 (2012)). A petition for a writ of habeas corpus is not automatically moot when a petitioner is released from prison, but it is moot when the main thrust of the petition is to be released from prison and the petitioner has been released. Bailey, 821 F.2d at 278.

In the present case, Petitioner does not attack the validity of any conviction. He simply contends that he has been denied release to mandatory supervision and requests to be released to mandatory supervision. As explained above, subsequent to the filing of his federal petition, Petitioner discharged his sentence for failure to register as a sex offender, became eligible for mandatory supervision, and was released to mandatory supervision. He thus obtained the relief sought. Accordingly, Petitioner's habeas petition is now moot and the Court lacks subject matter jurisdiction over this action. See, e.g., Bailey, 821 F.2d at 278 (“The main thrust of Bailey's petition is to be released from his confinement. Because Bailey was released in April 1986, however, this court can no longer provide him with that relief.”); Frischenmeyer v. Quarterman, 187 Fed.Appx. 378 (5th Cir. 2006) (unpublished) (dismissing appeal and certificate of appealability as moot by citing Bailey to explain that “Frischenmeyer was released on mandatory supervision on May 9, 2006. Frischenmeyer's claims have been rendered moot by his release.”). Minor v. Dir., TDCJ-CID, No. 6:19CV251, 2019 WL 7790437, at *2 (E.D. Tex. Dec. 30, 2019) (“Because Minor has already been released from confinement, this Court cannot provide him the release [to mandatory supervision] he seeks.”), ...