                                                       United States Court of Appeals
                                                                Fifth Circuit
                                                             F I L E D
               IN THE UNITED STATES COURT OF APPEALS           May 7, 2003
                       FOR THE FIFTH CIRCUIT
                                                         Charles R. Fulbruge III
                                                                 Clerk

                           No. 03-40248
                         Summary Calendar


GEORGE ALLEN DAY

                     Petitioner - Appellant

     v.

UNITED STATES PAROLE COMMISSION

                     Respondent - Appellee

                       --------------------
          Appeal from the United States District Court
                for the Eastern District of Texas
                       USDC No. 1:02-CV-354
                       --------------------

Before KING, Chief Judge, and WIENER and CLEMENT, Circuit Judges.

PER CURIAM:*

     George Allen Day, a former federal prisoner, appeals the

district court’s dismissal of his 28 U.S.C. § 2241 petition,

challenging the October 2001 decision to deny him parole and

seeking immediate release.   Day concedes that, subsequent to

filing the instant petition, he was released from prison.

However, he asserts that dismissal of his petition was error

because he met the jurisdictional requirement of being “in

custody” at the time he filed the petition.

     *
        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that this opinion should not be published and is not precedent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. 03-40248
                                  -2-

     Day misapprehends the district court’s dismissal.    His

petition was dismissed as moot, not for lack of jurisdiction.

Day’s petition challenged only the procedures by which the Parole

Commission denied him parole in October 2001 and requested relief

in the form of immediate release from prison.    The petition

presents no live case or controversy following Day’s release from

prison, and it was thus properly dismissed as moot.     See Spencer

v. Kemna, 523 U.S. 1, 7-18 (1998); Rocky v. King, 900 F.2d 864,

867 (5th Cir. 1990).     The appeal is without arguable merit and is

therefore DISMISSED as frivolous.     See Howard v. King, 707 F.2d

215, 219-20 (5th Cir. 1983); 5TH CIR. R. 42.2.

     APPEAL DISMISSED.
