UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

ROBERT C. GARNETT, SR.,

Petitioner-Appellant,

v.

GARY GOLDER, Warden,

Respondent-Appellee.

No. 05-1248

(District of Colorado)

(D.C. No. 05-Z-422)

ORDER

Before BRISCOE, LUCERO and MURPHY, Circuit Judges.

Appellant, Robert C. Garnett, filed an application for a writ of habeas corpus pursuant to 28 U.S.C. § 2241 on May 24, 2005, challenging the calculation of his statutory discharge date. The district court concluded Garnett had failed to exhaust his state remedies and dismissed the application. Garnett now seeks a certificate of appealability ("COA") to enable him to appeal the district court's dismissal of his § 2241 application. See 28 U.S.C. § 2253(c)(2). Garnett's motion to proceed in forma pauperis on appeal is granted.

The brief Garnett filed with this court indicates he is no longer incarcerated. Accordingly, Garnett was ordered to show cause as to why his application for a COA should not be dismissed as moot. See Spencer v. Kemna, 523 U.S. 1, 7 (1998). After reviewing the entire record on appeal, including Garnett's response to the order to show cause, this court concludes that the application for COA is moot. Accordingly, we dismiss Garnett's appeal.

Entered for the Court

ELISABETH A. SHUMAKER, Clerk

By

Deputy Clerk