Kaltenbach v. Warden La St Pen

• Court: Court of Appeals for the Fifth Circuit
• Decided: March 25, 2004
• Docket: 95-31011
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 95-31011

Summary Calendar

ROBERT KALTENBACH, Plaintiff-Appellant,

JOHN WHITLEY, WARDEN versus

Defendant-Appellant.

Appeal from the United States District Court For the Western District of Louisiana (94-CV-2216)

March 7, 1996

Before HIGGINBOTHAM, DUHÉ, and BENAVIDES, Circuit Judges.

PER CURIAM:*

Robert Kaltenbach petitioned for habeas corpus relief, see 28

U.S.C. s 2254, from his Louisiana state court convictions. At the

time of his petition, he was serving the sentence corresponding to

his conviction and thus met the “in custody” requirement for

federal habeas. See Maleng v. Cook, 490 U.S. 488, 490-91 (1989).

Nevertheless, since that time, and before the district court ruled,

Louisiana released Kaltenbach from incarceration and terminated his

parole term. Louisiana has also restored all of Kaltenbach’s

* Pursuant to Local Rule 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in Local Rule 47.5.4. rights of citizenship and franchise under its first offender

statute, La. Rev. Stat. 15:572.B-.D. Kaltenbach points to no

collateral consequences of the type discussed in Carafas v.

LaVallee, 391 U.S. 234, 238 (1986), currently attaching as a result

of his conviction. Accordingly, we agree with the district court

that Kaltenbach’s petition is moot; social stigma and the fact of

the previous conviction alone are insufficient to maintain a live

controversy for Article III purposes. Naylor v. Superior Court,

558 F.2d 1363 (9th Cir. 1977), cert. denied, 435 U.S. 946 (1978);

Bjerkan v. United States, 529 F.2d 125, 126-27 (7th Cir. 1975).

Nor could Kaltenbach save his petition from mootness by, as he

suggests, adding a claim for damages; damages are not available in

an action under section 2254.

Although the district court’s opinion makes clear that

Kaltenbach’s petition was dismissed for mootness, it also recites

other possible grounds for the decision, its judgment states that

the petition was “DISMISSED WITH PREJUDICE and all relief DENIED.”

Out of an abundance of caution, we modify the order to dismiss

Kaltenbach’s petition as moot.

Affirmed as modified.