Berotte v. Johnson

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 99-40187 Conference Calendar

JAMES BEROTTE,

Petitioner-Appellant,

versus

GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,

Respondent-Appellee.

- - - - - - - - - - Appeal from the United States District Court for the Eastern District of Texas USDC No. 1:98-CV-1926 - - - - - - - - - - December 13, 2000

Before DAVIS, STEWART, and PARKER, Circuit Judges.

PER CURIAM:*

James Berotte, Texas prisoner # 641970, appeals the district

court’s denial of his 28 U.S.C. § 2254 petition challenging the

forfeiture of previously earned good-time credits upon the

revocation of his parole. He argues that this forfeiture

violates the Ex Post Facto Clause and seeks restoration of the

forfeited good-time credits. A certificate of appealability was

previously granted.

* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4. No. 99-40187 -2-

The respondent has filed a motion to dismiss the action as

moot due to Berotte’s re-release on parole. This argument is

meritorious. Berotte has not shown an injury-in-fact, and his

habeas claims are moot due to his re-release on parole. Spencer

v. Kemna, 523 U.S. 1, 7 (1998); see Ex parte Hallmark, 883 S.W.2d

672, 674 (Tex. Crim. App. 1994) (good-time credits apply only to

an inmate’s eligibility for parole or mandatory supervision and

do not affect the length of the inmate’s sentence). Therefore,

respondent’s motion to dismiss the appeal is GRANTED, and the

appeal is DISMISSED AS MOOT.