Gray v. Johnson

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. No. 97-41492 USDC No. G-97-CV-586

TRAVIS DALE GRAY,

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 Southern District of Texas ---------------------

April 13, 1998

Before WIENER, BARKSDALE, and EMILIO M. GARZA, Circuit Judges.

BY THE COURT:

Texas state prisoner Travis Dale Gray, no. 542293, has

requested from this court a certificate of appealability (COA) to

appeal the district court’s denial of his 28 U.S.C. § 2254

petition for federal habeas relief. He also requests in forma

pauperis (IFP) status on appeal.

Gray argues that the Texas Department of Criminal Justice

(TDCJ) has erroneously computed the length of his term of

imprisonment and that he should be entitled to mandatory

supervised release on January 23, 1999. Any potential dispute

between Gray and TDCJ "has not ripened into the definite and

concrete controversy" necessary for the adjudication of Gray’s O R D E R No. 97-41492 - 2 -

claim. Cross v. Lucius, 713 F.2d 153, 159 (5th Cir. 1983). The

controversy is more hypothetical than real and, as such, does not

present a federal court with the Article III case or controversy

requisite to its jurisdiction.

Although the district court did not specify whether its

dismissal was with or without prejudice, such a dismissal is

usually with prejudice. See Fed. R. Civ. P. 41(b). Gray’s

requests for a COA and IFP are GRANTED and the judgment of the

district court is MODIFIED to be WITHOUT PREJUDICE to allow him

to bring his claim once the controversy is ripe. The judgment is

AFFIRMED as MODIFIED.