Alvin M. WATERS, Appellant, v. Dr. James V. LOWRY, Appellee, 238 F.2d 398

SIMONS, Chief Judge. The appellant was convicted in the District Court of the United States for the Eastern District of Virginia and sentenced to imprisonment to an institution to be designated by the Attorney General at the April 1955 term of court. The Attorney General designated his place of confinement to be the United States Public Health Service Hospital at Lexington, Kentucky. The appellee, Dr. James V. Lowry, is the medical officer in charge of that institution.

While so imprisoned, appellant filed his petition in the District Court for the Eastern District of Kentucky for a writ of habeas corpus, which petition was denied. The appellant contends that he was a victim of entrapment, that he was mentally incompetent at the time of trial, and that the Court erred in admitting evidence. The government responded by pointing out that such grounds should have been asserted by direct appeal and were not the basis for the granting of a writ of habeas corpus. We have no occasion to consider the issues involved in the appeal from the order denying the writ.

At the hearing in this court, the appellant did not appear; the government produced a communication from the medical officer in temporary charge of the Public Health Service Hospital at Lexington, advising that the appellant had been conditionally released from such place of detention on November 21, 1956, and filed a motion here based upon such information to dismiss the appeal on the ground that the questions raised therein have now become moot. Notice of the filing of such motion was sent to the appellant by telegraph on November 24, 1956.

There being no traverse in any form to the evidence of the District Attorney that the appellant had been released from custody, the motion of the United States Attorney is sustained and the appeal is hereby, Dismissed.