596 F.2d 658 (5th Cir. 1979), 78-2538, Cook v. Hanberry

• Docket Nº: 78-2538
• Citation: 596 F.2d 658
• Party Name: Carl E. COOK, Petitioner-Appellant, v. Jack A. HANBERRY, Warden, United States Penitentiary, Atlanta, Georgia, Respondent-Appellee.
• Case Date: June 06, 1979
• Court: United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Page 658

596 F.2d 658 (5th Cir. 1979)

Carl E. COOK, Petitioner-Appellant,

v.

Jack A. HANBERRY, Warden, United States Penitentiary,

Atlanta, Georgia, Respondent-Appellee.

No. 78-2538

^[*]

United States Court of Appeals, Fifth Circuit

June 6, 1979

Certiorari Denied June 11, 1979.

See 99 S.Ct. 2866.

Page 659

Carl E. Cook, pro se.

William A. Harper, U. S. Atty., Barbara A. Harris, Asst. U. S. Atty., Atlanta, Ga., for respondent-appellee.

Appeal from the United States District Court for the Northern District of Georgia.

Before COLEMAN, FAY and RUBIN, Circuit Judges.

PER CURIAM:

For purposes of clarification, our prior opinion dated March 29, 1979 is revised as follows:

A federal prisoner currently serving sentences for bank robbery and assaulting a fellow inmate with a deadly weapon, Cook filed a pro se petition, styled under 28 U.S.C. § 2255, seeking his release or a transfer from the Atlanta Federal Penitentiary where he was then incarcerated to a facility on the West Coast where he had previously been confined. He has since been moved to Lompoc Federal Correctional Institute in California.

The general rule in federal cases requires that an actual controversy exist at all stages of appellate review, "and not simply at the date the action is initiated." Roe v. Wade, 1973, 410 U.S. 113, 125, 93 S.Ct. 705, 712, 35 L.Ed.2d 147, 161. Insofar as Cook's petition sought relief in the form of return to a West Coast facility, the issue has become moot. See McRae v. Hogan, 5 Cir. 1978, 576 F.2d 615, 616-17.

The prisoner asserts the additional claim, not moot, that he is entitled to release because the treatment accorded him by the

Page 660

prison officials violated the Eighth Amendment.

Assuming Arguendo that his allegations of mistreatment demonstrate cruel and unusual punishment, the petitioner still would not be entitled to release from prison. The appropriate remedy would be to enjoin continuance of any practices or require correction of any conditions causing him cruel and unusual punishment. ¹ See Preiser v. Rodriguez, 1973, 411 U.S. 475, 499, 93 S.Ct. 1827, 1841, 36 L.Ed.2d 439, 455; Williams v. Edwards, 5 Cir. 1977,547 F.2d 1206, 1212; Mead v. Parker, 9 Cir. 1972, 464 F.2d 1108, 1111; Konigsberg v. Ciccone, W.D.Mo.1968, 285 F.Supp. 585, 589, Aff'd, 8 Cir. 1969, 417 F.2d 161, Cert. denied, 1970, 397 U.S....