* Pursuant to 5 TH C IR . 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this opinion should not be published and is not precedent except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 5 TH C IR . R. 47.5.4. United States Court of Appeals

Fifth Circuit



## FILED

October 6, 2005

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

For the Fifth Circuit

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 magistra t e judge’s grant of

h abeas to petitioner John Adair and the magistrate’s orde r

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.2 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 ma ndatory

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 Depa rtment 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 partic ipate

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 mus t 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 participate3

in SATP because he signed a refusal of parole. Each of Adair’s

disciplinary actions was upheld by the Department be cause: 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 appr opriate 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 rece ived 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 argu ed 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 participate4

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 c onsented 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

g ood time credits could not have been raised in state cour t 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 u pon the conclusion that the Department’s deprivation of

Adair’s good time credi ts 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 ti me credits to

Adair. The reduction of restored time was calculated based upon

the determination that twen ty 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,5

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 crossappeal 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 constit utional jurisdiction to

resolve the issues it presents.” G oldin v. Bartholow

, 166 F.3d

710, 717 (5th Cir. 1999) (i n ternal citations omitted).

“Accordingly, an actual, live controversy must remain at all stages

of federal co urt proceedings, both at the trial and appellate

levels. That is, the requisite personal interest that must exist

a t the commencement of the litigation (standing) must continu e

throughout its existence (mootness).” D e 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 it6

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

. S ee 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. B ailey

, 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

a re now moot. His good credit time will not carry over to a7

subsequent confinement. S ee T EX

. G OV ’ T C ODE A NN

. § 498.004(b). “On

the revocation of parole or mandatory supervision of an inmate, the

inmate forfeits all good con duct time previously accrued.” I d .;

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. I d

. 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 t hat he might in the future be harmed by the

results of his prison disciplinary proceedings related to refusal

to attend SATP. S ee 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 rever sal 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.8

Therefore, no showing has been made of a collateral consequence on

either appellant or cross-appellant fromthe 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.