     Case: 12-10851       Document: 00512288710         Page: 1     Date Filed: 06/26/2013




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                                            FILED
                                                                           June 26, 2013
                                     No. 12-10851
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

MICHAEL WAYNE BOHANNAN,

                                                  Petitioner-Appellant,

v.

WILLIAM STEPHENS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                                  Respondent-Appellee.


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 4:09-CV-662


Before WIENER, ELROD, and GRAVES, Circuit Judges.
PER CURIAM:*
       Michael Wayne Bohannan, Texas prisoner # 1841746, was convicted of two
counts of aggravated rape with a deadly weapon, and he instituted the instant
28 U.S.C. § 2254 proceedings to challenge, among other things, a revocation of
his release. This court granted Bohannan a certificate of appealability (COA) on
whether the extension of his discharge date was a collateral consequence
sufficient to maintain his § 2254 challenge to his revocation.


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.
     Case: 12-10851        Document: 00512288710          Page: 2     Date Filed: 06/26/2013

                                        No. 12-10851

       Bohannan has since been convicted on a new charge and is currently
under the custody of the Texas Department of Criminal Justice, Correctional
Institutions Division, serving a life sentence.                Because Bohannan’s new
conviction and concomitant incarceration effectively terminated his release, this
action no longer presents a live case or controversy.1 See Tex. Gov’t Code
§ 508.001(5); Spencer v. Kemna, 523 U.S. 1, 7, 12–13 (1998); United States v.
Clark, 193 F.3d 845, 847–48 (5th Cir. 1999).                  We decline to consider the
Respondent’s timeliness argument because no COA was issued on it. See
Simmons v. Epps, 654 F.3d 526, 535 (5th Cir. 2011), cert. denied, 132 S. Ct. 2374
(2012). We also deny Bohannan’s motion to strike Respondent’s brief.
       DISMISSED as MOOT; MOTION DENIED.




       1
         Even assuming, arguendo, that Bohannan’s new life sentence does not moot his § 2254
challenge to his revocation, we would nonetheless affirm the district court’s denial of relief
because Bohannan’s previously scheduled release date would have passed before he could
obtain a new revocation hearing. See United States v. Kirklin, 701 F.3d 177, 179 (5th Cir.
2012). In Kirklin, a direct appeal from the revocation of supervised release, we declined to
grant relief on a plain sentencing error after concluding that the error did not affect Kirklin’s
substantial rights because he was scheduled for release in less than thirty days. Id. We
explained that “[b]y the time it would be possible for Kirklin to be given a new sentencing
hearing, even more time would have passed.” Id. at 179–80. Similarly, here, Bohannan’s
previously scheduled release is due to expire in approximately two weeks, on July 9, 2013, and
by the time he could obtain a new hearing even more time would have passed.

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