Muscolino v. Turner

104 F. App'x 422

• Court: Court of Appeals for the Fifth Circuit
• Decided: August 17, 2004
• Docket: 03-60547
• Status: Unpublished

Opinion

PER CURIAM: *

The State appeals the district court’s interlocutory order holding the 28 U.S.C. § 2254 petition filed by Michael Muscolino, Mississippi prisoner # K2799, in abeyance pending his exhaustion of an unexhausted claim. The State argues that the district court’s order is improper because, in effect, it allows Muscolino’s 28 U.S.C. § 2254 petition to toll the Antiterrorism and Effective Death Penalty Act’s limitations period. The State asks this court to reverse the district court’s order.

After the State filed its interlocutory appeal, the district court found that all of Muscolino’s claims had been exhausted. As the district court’s order holding the ease in abeyance is no longer in effect, we DISMISS this appeal as MOOT. See City of Erie v. Pap’s AM., 529 U.S. 277, 287, 120 S.Ct. 1382, 146 L.Ed.2d 265 (2000); United States Parole Comm’n v. Geraghty, 445 U.S. 388, 395-96, 100 S.Ct. 1202, 63 L.Ed.2d 479 (1980). Given our dismissal of this appeal, the district court is directed to administratively reopen the case.

APPEAL DISMISSED.

* Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5th Cir. R. 47.5.4.