IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 00-50285 Summary Calendar

REMIGIO A. MARTINEZ,

Plaintiff-Appellant,

versus

NANCY HEES; TX. BOARD OF PARDONS; S.O. WOODS, JR.; KATHY CLEERE; STEPHEN L. ROGERS, Warden; VERONICA BALLARD,

Defendants-Appellees.

- - - - - - - - - - Appeal from the United States District Court for the Western District of Texas USDC No. A-98-CV-696-SS - - - - - - - - - - December 1, 2000

Before GARWOOD, HIGGINBOTHAM and PARKER, Circuit Judges.

PER CURIAM:*

Remigio A. Martinez, Texas prisoner # 799604, appeals the

district court’s dismissal of his

action for

failure to state a claim. In his complaint, Martinez challenged

the issuance of a pre-revocation warrant of arrest for his

alleged violation of the terms of his mandatory supervision

stemming from his conviction for carrying a weapon on school

property. He admits that while he was serving his term of

* 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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. No. 00-50285 -2-

mandatory supervision, he committed robbery and theft. He

pleaded guilty to the theft charge prior to the expiration of his

term of mandatory supervision and was sentenced to nine months of

incarceration. Subsequent to the expiration of his term of

mandatory supervision, but while he remained incarcerated on the

theft charge, he was bench warranted to Bexar County to stand

trial on the robbery charge. The day after this bench warrant

was issued, the pre-revocation warrant he challenges was issued.

The pre-revocation warrant was withdrawn after Martinez was

sentenced on the robbery charge, and his mandatory supervision

was not revoked. On appeal, Martinez argues that the issuance of

the pre-revocation warrant violated his rights under the Due

Process and Double Jeopardy Clauses.

Because Martinez was incarcerated for the theft charge and

as a result of the bench warrant issued in the robbery case, he

has not established that he was punished or that his liberty was

infringed as a result of the allegedly mistaken issuance of the

pre-revocation warrant after his discharge date for the

underlying conviction passed. Therefore, he has not shown the

denial of a constitutional right, see Doe v. Rains County Ind.

Sch. Dist.,

(5th Cir. 1995), and the judgment

of the district court is AFFIRMED.