UNITED STATES of America, Appellee,
v.
Jackson HOLMES, Appellant.
No. 89-1033WM.
United States Court of Appeals,
Eighth Circuit.
April 20, 1990.
Order on Rehearing June 5, 1990.
Before LAY, Chief Judge; HEANEY, Senior Circuit Judge; MCMILLIAN, ARNOLD, JOHN R. GIBSON, FAGG, BOWMAN, WOLLMAN, MAGILL, and BEAM, Circuit Judges.
Order On Rehearing
This matter comes before the court for rehearing en banc on a petition of the government. The panel's opinion, which dealt with appellant's rights under 18 U.S.C. Sec. 4245, has been vacated.
Holmes' sentence expired in June 1989. The government stated at oral argument that on completion of Holmes' sentence, it filed a certificate under 18 U.S.C. Sec. 4246 seeking a district court hearing to determine whether Holmes continues to suffer from a mental disease or defect which would create a substantial risk of bodily injury or property damage to another if Holmes were released. The section 4246 hearing has been deferred several times at Holmes' request. The government stated that it has acceded to Holmes' wishes to delay the hearing because Holmes presently is taking an antipsychotic medication voluntarily. Additionally, the government chose to defer the section 4246 hearing because of the pendency of this rehearing and its anticipation of the decision of the United States Supreme Court in Washington v. Harper, --- U.S. ----, 110 S. Ct. 1028, 108 L. Ed. 2d 178 (1990).
The government now asserts that this matter is moot. Holmes' appeal sought a determination of his right to refuse antipsychotic medications while being held under 18 U.S.C. Sec. 4245. Because Holmes has completed his sentence and is no longer being held pursuant to that section, we agree that the matter is moot. Accordingly, we dismiss Holmes' appeal.
