LEONARD L. MCLAIN, PETITIONER-APPELLANT,
v.
DR. GEORGE J. BETO, DIRECTOR, TEXAS DEPARTMENT OF CORRECTIONS, RESPONDENT-APPELLEE
AI-generated. These summaries, headnotes, and key points are machine-generated and may contain errors or omissions. Always verify against the full opinion text below. Not legal advice.
The appeal is dismissed as moot because the petitioner has been retried and convicted on a new charge, rendering the original habeas corpus issue irrelevant.
Following a prior habeas corpus ruling that ordered a retrial within 120 days or release, the state sought and received an extension to retry the peti…
The full statement of facts, procedural history, and disposition for this case are member content.
Join FLexlaw to unlock all legal intelligence© FLexlaw, Inc. — AI-generated enrichments are proprietary. All rights reserved.
Explore caselaw by topic → Browse Retrial cases and more on FLexlaw
PER CURIAM:
For the second time we are called upon to consider the validity of habeas corpus proceedings with reference to Leonard L. McLain. Our prior decision is reported, McLain v. Beto, 5 Cir., 1971, 441 F. 2d 703. We there affirmed the judgment of the District Court which had granted the writ and directed that McLain be released if not retried by the State of Texas within 120 days.
The judgment of the District Court, granting the writ, was dated January 30, 1970. The appeal was decided in this Court on April 13, 1971. On October 4, 1971, the District Court entered an order granting an extension of time in which to retry McLain. He then filed a motion to compel the enforcement of the writ and for reconsideration of the order granting an extension. These motions were denied and this appeal is from that denial.
After the appeal was filed, the State of Texas did retry McLain. A jury again found him guilty of the murder of an aged woman and fixed his punishment at imprisonment for 99 years.
We pretermit the question of whether the orders appealed from were purely interlocutory and not appealable, as contended by Texas, because we are of the opinion that in any event the appeal is now moot.
The order previously affirmed did not direct that McLain would thereafter be immune to prosecution for murder, a crime for which there' is no statute of limitations in Texas. It did direct that he should be released from prison if not retried within 120 days. Later, the District Court granted an extension until October 18, 1971, reciting in its order “that the case had been delayed upon request of defense counsel”.
The point of the matter is that Mc-Lain has now, in fact, been retried and convicted. He is now detained as a result of that conviction, not the former one. There no longer remains any controversy as to the legality of the original conviction, the subject of the prior ha-beas corpus proceedings. For mootness, the appeal is dismissed. McLain is, of course, free to raise any valid constitutional objections to his second conviction, a matter which is not now before us.
Appeal dismissed.
Cases With Similar Vibessemantic neighbors from the corpus
Citator
Authorities Cited
- Isbell Enters., Inc. v. Citizens Cas. Co. OF NEW York, 431 F.2d 409 (5th Cir. 1970)
- McLAIN v. Beto, 441 F.2d 703 (5th Cir. 1971)