## I N THE UNI TED STATES COURT OF APPEALS FOR THE FI F TH CI RCUI T

No. 12-10851 Summary Calendar

MICHAEL WAYNE BOHANNAN, Petitioner-Appellant,

v.
WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF C RIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, Respondent-Appellee.

A ppeal from the United States District Court f or the Northern District of Texas USDC No. 4:09-CV-662

Before WIENER, ELROD, and GRAVES, Circuit Judges. PER CURIAM: * 

### Michael Wayne Bohanna n , T e x a s p r i s o n e r # 1 841746, was c onvicted of two counts of aggravated rape with a deadly weapon, 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 wheth e r t h e extension of his d ischarge d ate was a collateral consequence sufficient to maintain his § 2254 challenge to his revocation. U n i t e d S t a te s C o u r t o f A p p e al s F i f t h C i rc u i t 

## F I L E D June 26, 2013 Ly l e W . Cay ce Clerk

* Purs uant to 5 T H C I R

. R

. 47. 5, the court has d eterm ined that this op inion should not be p ublis hed and is not p reced ent excep t und er the lim ited circum s tances s et forth in 5 T H C I R

. R. 47. 5. 4. 

### Case: 12-10851 Document: 00512288710 Page: 1 Date Filed: 06/26/2013

### No. 12-10851

Bohannan has since been convicted on a n e w c h arge and is currently unde r t he custody of the Texas D epartment of Criminal Justice, Correctional Institutions Division, serving a life sentence. Because B o hannan’s new conviction and concomitant incarceration effectively terminated h is r elease, this action no longer presents a live case or controversy. 1 

### See T e x
. G o v ’ t Code § 508.001(5); Spencer v
. Kemna , 523 U.S. 1, 7, 12–13 (1998); United States v. Clark , 193 F.3d 845, 8 4 7

– 4 8 ( 5 t h Cir. 1 999). We decline to consider the R e s p o n d e nt’s timeliness argument because no COA was issued on it. See Simmons v
. Epps , 654 F .3d 526, 5 35 (5th Cir. 2011), cert. denied , 132 S. Ct. 2374 (2012). We also deny Bohannan’s motion to strike Respondent’s brief. DISMISSED as MOOT; MOTION DENIED.

1 Even as s um ing, a rguendo , that Bohannan’s new lif e s entence d oes not m oot his § 2254 challenge to his revocation, we w ould nonetheles s af firm the d is t r i c t c o u r t’s d enial of relief becaus e Bohannan’s p revious ly s ched uled releas e d a te w ould have p as s ed bef ore he could obtain a new revocation hearing. See U ni ted Sta tes v
. Ki rkl in , 701 F .3d 177, 179 ( 5th Cir. 2012)

. In Ki rkl i n , a d irect ap peal f rom the revocation of s up ervis ed releas e, w e d eclined to grant relief on a p lain s entencing error af ter conclud ing that the error did not af f ect K irk lin’s
s ubs tantial rights becaus e he w as s ched uled f or r e l e a s e in les s than thirty d ays
. Id. We
e x p l a i ned that “[ b] y the tim e it w ould be p os s ible for K irk lin to be given a new sentencing hearing, even more tim e w ould have p as sed

. ” Id. at 179– 8 0

. S i m ilarly, here, Bohannan’s p revious ly s ched uled releas e is d ue to exp ire in ap p roxim ately tw o w eek s , on July 9, 2013, and by the tim e he could obtain a new hearing even m ore tim e w ould have p as s ed

. 

### 2 Case: 12-10851 Document: 00512288710 Page: 2 Date Filed: 06/26/2013