IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

TOMMY PRESTON MARSHBURN, )

#234323, )

Petitioner, )

)

v. ) 3:05-CV-1451-G

) ECF

NATHANIEL QUARTERMAN, Director, )

Texas Department of Criminal Justice, )

Correctional Institutions Division, )

Respondent. )

FINDINGS, CONCLUSIONS AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the District Court in

implementation thereof, the subject cause has been referred to the United States Magistrate

Judge. The findings, conclusions and recommendation of the Magistrate Judge are as follows:

FINDINGS AND CONCLUSIONS:

Type Case: This is a petition for a writ of habeas corpus brought by a state inmate

pursuant to 28 U.S.C. § 2254. 

Parties: Petitioner is presently confined at the Allred Unit of the Texas Department of

Criminal Justice -- Correctional Institutions Division (TDCJ-CID) in Iowa Park, Texas. 

Respondent is the Director of TDCJ-CID. The Court issued process in this case.

Statement of the Case: Petitioner is presently confined pursuant to the judgment and

sentence of Criminal District Court No. 5 of Dallas County, Texas, in Cause Number C72-

11739-HL. Ex parte Marshburn, No. 60,814-01 at 28. Petitioner pled guilty to the offense of

robbery and was sentenced to seventy-five years imprisonment. Id.

 

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In this habeas corpus action, Petitioner contends TDCJ-CID mistakenly changed the start

date on his sentence from November 5, 1970, to March 29, 1973, and denied him credit for time

served during that time period. He alleges that “[o]n June 24, 1975, [he] pleaded guilty . . . for

the offense of robbery and was sentenced by the judge to 75 years, and as part of the plea bargain

agreement the sentence was to be credited with time beginning [on] November 5, 1970.” 

(Petition (Pet.) at 7a).

In his Advisory to the Court filed on July 21, 2006, Respondent informs the Court that on

July 12, 2006, the state court filed a Judgment Nunc Pro Tunc in State of Texas v. Tommy

Preston Marshburn, No. C-72-11739-HL, reflecting a sentence start date of March 29, 1973. 

Findings and Conclusions: The entry of the Judgment Nunc Pro Tunc requires this

Court to examine whether it has jurisdiction over the instant action. See Fed. R. Civ. P. 12(h)(3)

(stating that "[w]henever it appears by suggestion of the parties or otherwise that the court lacks

jurisdiction of the subject matter, the court shall dismiss the action").

"Article III of the Constitution limits federal 'Judicial Power,' that is, federal-court

jurisdiction, to 'Cases' and 'Controversies.' " United States Parole Comm'n v. Geraghty, 445 U.S.

388, 395 (1980). Under the case-or-controversy requirement, “[t]he parties must continue to

have a ‘personal stake in the outcome’ of the lawsuit.” Spencer v. Kemna, 523 U.S. 1, 7 (1998)

(quoting Lewis v. Continental Bank Corp, 494 U.S. 472, 477-78 (1990)). “This means that,

through out the litigation, the plaintiff ‘must have suffered, or be threatened with, an actual

injury traceable to the defendant and likely to be redressed by a favorable judicial decision.’” Id.

(quoting Lewis, 494 U.S. at 477). 

A case becomes moot "when the issues presented are no longer 'live' or the parties lack a

 

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legally cognizable interest in the outcome." Geraghty, 445 U.S. at 396 (quoting Powell v.

McCormack, 395 U.S. 486, 496 (1969)). When a petitioner does not attack the validity of his

conviction, but merely contests the imposition and duration of his confinement, the case becomes

moot when he has been released. Lane v. Williams, 455 U.S. 624, 631 (1982). In other words,

when a petitioner does not attack his conviction, continuing collateral consequences required to

demonstrate a concrete injury are not presumed and must be proven. Spencer, 523 U.S. at 14. 

Petitioner does not challenge the validity of his underlying conviction. As noted above,

he complains only that TDCJ-CID erred in changing the start date of his sentence from

November 5, 1970, to March 29, 1973. Because the trial court recently issued a Judgment Nunc

Pro Tunc reflecting a sentence start date of March 29, 1973, Petitioner cannot show that an

actionable controversy continues in this case. As a result, there is nothing further for this Court

to remedy. The petition should be dismissed as moot. 

 

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RECOMMENDATION:

For the foregoing reasons, it is recommended that the District Court dismiss the petition

for a writ of habeas corpus for want of jurisdiction the same being moot.

The Clerk will transmit a copy of this recommendation to Petitioner

Signed this 10th day of August, 2006.

_____________________________________

PAUL D. STICKNEY

UNITED STATES MAGISTRATE JUDGE

NOTICE

In the event that you wish to object to this recommendation, you are hereby notified that

you must file your written objections within ten days after being served with a copy of this

recommendation. Pursuant to Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir.

1996) (en banc), a party's failure to file written objections to these proposed findings of fact and

conclusions of law within such ten day period may bar a de novo determination by the district

judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds

of plain error, from attacking on appeal the unobjected to proposed findings of fact and

conclusions of law accepted by the district court.

 

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