136 F. App'x 675
5th Cir.
2005

Justin Wiley DICKENS, Petitioner-Appellant v. Doug DRETKE, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.

No. 04-70029.

United States Court of Appeals, Fifth Circuit.

Decided June 24, 2005.

413 F.3d 675

Jan Elizabeth Hemphill, Dallas, TX, for Petitioner-Appellant.

Robert Patrick Abbott, Coppell, TX, Tomee Morgan Carden Crocker, Office of the Attorney General for the State of Texas, Austin, TX, for Respondent-Appellee.

Before WIENER, BENAVIDES, and STEWART, Circuit Judges.

PER CURIAM:*

Petitioner-Appellant Justin Wiley Dickens seeks a certificate of appealability (“COA“) on three issues that the district court deemed unworthy of collateral review. Dickens seeks a COA from this Court on three claims, all of which challenge his death sentence. Dickens first argues that the evidence at the punishment phase of trial was legally insufficient to prove beyond a reasonable doubt that he would commit criminal acts of violence in the future so as to constitute a continuing threat to society. Dickens also argues that his state trial, appeal, and habeas counsel were ineffective because they failed to invoke the International Covenant on Civil and Political Rights, an international treaty ratified by the United States Senate which prohibits the execution of offenders for crimes committed when the offender was under the age of 18.

In light of the United States Supreme Court‘s recent decision in Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005),1 Texas Governor Rick Perry has commuted Dickens‘s death sentence to life imprisonment. As Dickens petition for a COA challenges only his death sentence, and not his underlying conviction, his petition is now moot because Governor Perry has granted him the relief that he requested.

PETITION DISMISSED.

UNITED STATES of America, Plaintiff-Appellee v. Arturo Nunez-De LA CRUZ, Defendant-Appellant.

No. 05-50009.

United States Court of Appeals, Fifth Circuit.

Decided June 24, 2005.

413 F.3d 676

Joseph H. Gay, Jr, Assistant U.S. Attorney, U.S. Attorney‘s Office Western District of Texas, San Antonio, TX, for Plaintiff-Appellee.

Henry Joseph Bemporad, Federal Public Defender‘s Office Western District of Texas, San Antonio, TX, for Defendant-Appellant.

Before GARZA, DeMOSS, and CLEMENT, Circuit Judges.

PER CURIAM:1

IT IS ORDERED that Appellee‘s unopposed motion to vacate the sentence is GRANTED.

IT IS FURTHER ORDERED that Appellee‘s unopposed motion to remand the case to the Western District of Texas, El Paso Division for resentencing is GRANTED.

IT IS FURTHER ORDERED that Appellee‘s alternative request for an extension of time to file the Appellee‘s brief 14 days from the denial of Appellee‘s motion to vacate and remand is MOOT.

UNITED STATES of America, Plaintiff-Appellee v. Jesus Jose AVALOS-OAXACA, Defendant-Appellant.

No. 05-50044.

United States Court of Appeals, Fifth Circuit.

Decided June 24, 2005.

413 F.3d 676

Joseph H. Gay, Jr., Assistant U.S. Attorney, for Plaintiff-Appellee.

Philip J. Lynch, Federal Public Defender‘s Office Western District of Texas, San Antonio, TX, for Defendant-Appellant.

Before JONES, BARKSDALE, and PRADO, Circuit Judges.

PER CURIAM:1

IT IS ORDERED that Appellee‘s unopposed motion to vacate the sentence is GRANTED.

IT IS FURTHER ORDERED that Appellee‘s unopposed motion to remand the case to the Western District of Texas, El Paso Division for resentencing is GRANTED.

IT IS FURTHER ORDERED that Appellee‘s alternative request for an extension of time to file the Appellee‘s brief 14 days from the denial of Appellee‘s motion to vacate and remand is MOOT.

Notes

1
543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1 (2005). 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. 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.
*
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.