Case: 18-40936 Document: 00515950185 Page: 1 Date Filed: 07/23/2021
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
July 23, 2021
No. 18-40936 Lyle W. Cayce
Summary Calendar Clerk
Robert Tracy Warterfield,
Petitioner—Appellant,
versus
Bobby Lumpkin, Director, Texas Department of Criminal Justice,
Correctional Institutions Division,
Respondent—Appellee.
Appeal from the United States District Court
for the Eastern District of Texas
USDC No. 4:17-CV-330
Before Higginbotham, Jones, and Willett, Circuit Judges.
Per Curiam:*
Robert Tracy Warterfield, Texas prisoner # 1829999, filed a 28 U.S.C.
§ 2254 application challenging his convictions for aggravated sexual assault
of a child (two counts) and indecency with a child by contact (two counts).
*
Pursuant to 5th Circuit Rule 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opinion should not be published and is not precedent except under the limited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 Circuit Rule 47.5.4.
Case: 18-40936 Document: 00515950185 Page: 2 Date Filed: 07/23/2021
No. 18-40936
As part of this pending habeas application, he also filed a purported
application for injunctive relief, which sought to enjoin Texas officials in their
interpretations of, and obligations under, a plea agreement from a prior case.
According to Warterfield’s pleadings, the alleged violations of this prior plea
agreement helped prosecutors obtain his current convictions. The district
court reconstrued the purported application for injunctive relief as a petition
for a writ of mandamus, but it denied this reconstrued petition for lack of
jurisdiction to grant the relief requested. Warterfield then filed the instant
interlocutory appeal.
This court must consider the basis of its own jurisdiction, sua sponte
if necessary. Mosley v. Cozby, 813 F.2d 659, 660 (5th Cir. 1987). For
jurisdiction to exist, the court must have a live case or controversy before it
at all times. See United States v. Heredia-Holguin, 823 F.3d 337, 340 (5th Cir.
2016) (en banc). A moot case presents no case or controversy. See id. “This
court reviews questions of jurisdiction de novo, including [whether] a case or
controversy has become moot.” Veasey v. Abbott, 888 F.3d 792, 798 (5th Cir.
2018).
The district court now has denied the underlying § 2254 application
as time-barred and dismissed the case. Warterfield’s appeal from that denial
now is pending in this court. We conclude that the district court’s resolution
of the underlying § 2254 application renders Warterfield’s interlocutory
appeal moot. Warterfield’s renewed motion for appointment of counsel also
is denied.
INTERLOCUTORY APPEAL DISMISSED AS MOOT;
MOTION FOR APPOINTMENT OF COUNSEL DENIED.
2