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

                                                 FILED
                                                                         December 23, 2009

                                       No. 08-30649                    Charles R. Fulbruge III
                                                                               Clerk

WILLIE LEE MOORE TONEY,

                                                   Petitioner–Appellee
v.

JAMES MILLER, Warden,

                                                   Respondent–Appellant




                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:06-CV-1111


Before JONES, Chief Judge, and PRADO and HAYNES, Circuit Judges.
PER CURIAM:*
       Petitioner Willie Lee Moore Toney was convicted in Louisiana state court
of two counts of robbery, and was sentenced to thirty-five years’ imprisonment.
The district court granted Toney’s petition for a writ of habeas corpus under 28
U.S.C. § 2254, and ordered the state court either to retry Toney within 120 days
or dismiss the charges.
       The State appealed. The State filed a motion to stay the district court’s
order pending a ruling on the appeal, and we denied the motion. As the state

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 08-30649

trial court was preparing for a retrial, Toney and the State reached a plea
agreement: Toney pled guilty to one count of robbery and received a sentence of
ten years’ imprisonment, with credit for time served. Toney had already been
in prison for ten years, so he was released. The State dropped all other charges.
       We ordered the State to file a brief addressing whether developments in
state court had rendered this appeal moot. The State responded that this
appeal is not moot because our decision either will require Toney to be
“reincarcerated” or will adversely affect the State’s “right” to punish Toney. We
disagree. The State has already punished Toney; he has served ten years and
has been released. The State has no further right to punish Toney for these
charges, regardless of how we rule. The State seems to be saying that it can
reach a plea agreement with a defendant, while at the same time pursuing an
appeal which, if successful, will substitute a longer sentence in the place of the
one defined in the plea agreement. This is simply not the way our criminal
justice system works.
       Because Toney pled guilty to one charge and the State dropped the other
charges, there is no longer a live case or controversy. This appeal is moot, and
any decision rendered by this Court would be an impermissible advisory
opinion.1 See SEC v. Med. Comm. for Human Rights, 404 U.S. 403, 406–07
(1972).
       Accordingly, we DISMISS this appeal.




       1
         Importantly, if Toney’s initial conviction had stood, this case would not be moot simply
because he had completed his sentence. The Supreme Court has recognized that even when
incarceration is over, secondary or collateral harms caused by a criminal conviction are
sufficient to prevent a case from being dismissed as moot. Sibron v. New York, 392 U.S. 40,
55 (1968). However, the concerns expressed by the Sibron Court are not present in this case
because Toney pled guilty to the robbery.

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