Muscolino v. Turner, et al

* 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this opinion should not be published and is not precedent except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.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-60547
Conference Calendar
MICHAEL MUSCOLINO,
Petitioner-Appellee,
versus
DAVID TURNER; JIM HOOD,
Respondents-Appellants.
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Appeal from the United States District Court
for the Southern District of Mississippi
USDC No. 4:02-CV-434
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Before HIGGINBOTHAM, DAVIS, and PICKERING, Circuit Judges.
PER CURIAM:*
The State appeals the district court’s interlocutory order
holding the 28 U.S.C. § 2254 petition filed by Michael Muscolino,
Mississippi prisoner #K2799, in abeyance pending his exhaustion
of an unexhausted claim. The State argues that the district
court’s order is improper because, in effect, it allows
Muscolino’s 28 U.S.C. § 2254 petition to toll the Antiterrorism
and Effective Death Penalty Act’s limitations period. The State
asks this court to reverse the district court’s order.
United States Court of Appeals
Fifth Circuit
F I L E D
August 17, 2004
Charles R. Fulbruge III
Clerk

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No. 03-60547
-2-
After the State filed its interlocutory appeal, the district
court found that all of Muscolino’s claims had been exhausted.
As the district court’s order holding the case in abeyance is no
longer in effect, we DISMISS this appeal as MOOT. See City of
Erie v. Pap’s A.M., 529 U.S. 277, 287 (2000); United States
Parole Comm’n v. Geraghty, 445 U.S. 388, 395-96 (1980). Given
our dismissal of this appeal, the district court is directed to
administratively reopen the case.
APPEAL DISMISSED.

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