     Case: 08-31054     Document: 00511226279          Page: 1    Date Filed: 09/07/2010




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

                                                 FILED
                                                                         September 7, 2010
                                     No. 08-31054
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

WESLEY DICK

                                                   Petitioner - Appellant

v.

BURL CAIN, WARDEN, LOUISIANA STATE PENITENTIARY,

                                                   Respondent - Appellee


                    Appeal from the United States District Court
                       for the Eastern District of Louisiana
                              USDC No. 2:05-CV-1467


Before DAVIS, SMITH, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
        Wesley Dick was denied relief under 28 U.S.C. § 2254. On appeal, we
conclude that his application is moot. Therefore, we DISMISS.
        In 2001, Wesley Dick, former Louisiana prisoner # 208490, was sentenced
to life imprisonment without benefit of probation or suspension of sentence, the
then-mandatory sentence for heroin distribution. Subsequently, the Louisiana
legislature retroactively reduced the penalty for heroin distribution to a term of
five to fifty years. See La. Rev. Stat. Ann. §§ 15:308, 40:966(B)(1).

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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      In 2006, while Dick’s Section 2254 petition was pending, a state trial court
vacated his life sentence. He was then sentenced to ten years of imprisonment
with credit for time served, resulting in his release. However, a state appellate
court vacated that new sentence and reimposed the life sentence. State v. Dick,
943 So. 2d 389, 390 (La. App. 1 Cir. 2006). The Louisiana Supreme Court
affirmed the reimposed life sentence. State v. Dick, 951 So. 2d 124, 129-33 (La.
2007).
      The district court denied Dick leave to supplement his arguments with
state law challenges to the reimposed life sentence, then dismissed Dick’s
Section 2254 application. We granted a certificate of appealability (“COA”) on
whether “the district court erred in denying relief on Dick’s claim that his
sentence was excessive under the Eighth Amendment and [whether] the district
court abused its discretion in denying his motion to supplement his § 2254
application.”
      The parties have notified the court that the Governor of Louisiana
commuted Dick’s life sentence to ten years under Section 15:308(C). Dick was
released on parole in July 2009. The State asserts the appeal is now moot.
      Because Dick was in state custody when he filed his application, he
satisfied the “in custody” requirement of Section 2254. See Spencer v. Kemna,
523 U.S. 1, 7 (1998); 28 U.S.C. § 2254(a). A live case or controversy must
continue throughout the litigation. See Spencer, 523 U.S. at 7. Whether an
appeal is moot due to the lack of a case or controversy is a jurisdictional
question. Bailey v. Southerland, 821 F.2d 277, 278 (5th Cir. 1987).
      The COA only permits Dick to pursue the arguments that his life sentence
was excessive and that the record should be supplemented. Dick’s life sentence
was commuted to ten years, and he is thus no longer serving either the original
life sentence imposed in 2001 or the life sentence reimposed in 2006. The life
sentence no longer exists.    Supplementing the record to provide evidence
regarding the sentence serves no purpose. The case or controversy for which we

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                                No. 08-31054

granted a COA is at an end. See id. (holding that appeal was moot where the
main goal of the habeas petition was release from prison).
      Dick suggests that the appeal is not moot because he is still on probation.
That is true, but Dick has offered no challenge to his current sentence or parole
term. Because the only sentence being challenged on appeal has been commuted
and a new sentence exists, the appeal is DISMISSED AS MOOT.




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