Case: 13-11005 Document: 00512527989 Page: 1 Date Filed: 02/10/2014
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
United States Court of Appeals
Fifth Circuit
FILED
No. 13-11005 February 10, 2014
Lyle W. Cayce
BABU S. KALLUVILAYIL, Clerk
Plaintiff-Appellant
v.
THE TEXAS BOARD MEMBERS OF PARDONS AND PAROLES; L. A. ECK-
MASSINGILL, Assistant Regional Supervisor, Gatesville Institutional Parole
Officer; CLASSIFICATION AND RECORDS HEADQUARTERS, TIME
SECTION; WILLIAM R. THORNTON, JR., Parole Officer II,
Defendants-Appellees
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 1:13-CV-98
Before OWEN, ELROD, and HAYNES, Circuit Judges.
PER CURIAM: *
Babu S. Kalluvilayil, Texas prisoner # 584945, moves for leave to proceed
in forma pauperis (IFP) on appeal and for the appointment of counsel. He filed
this 42 U.S.C. § 1983 action against the board members of the Texas Board of
Pardons and Paroles and other state officials, alleging that the defendants
denied him mandatory supervision and parole. He asserted that under the law
* 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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No. 13-11005
applicable to him, mandatory supervision was automatic, not discretionary,
and he challenged alleged unconstitutional procedures used by the Board.
The district court concluded that because Kalluvilayil was incarcerated
pursuant to a life sentence, he was not eligible for release to mandatory
supervision, citing Arnold v. Cockrell, 306 F.3d 277, 279 (5th Cir. 2002), and
Ex parte Franks, 71 S.W.3d 327 (2001). The district court further concluded
that Kalluvilayil could not state a due process violation based on the Texas
Board of Pardons and Paroles’ procedures. Therefore, the district court
dismissed Kalluvilayil’s complaint as frivolous and for failure to state a claim
pursuant to 28 U.S.C. § 1915(e)(2)(B). Denying Kalluvilayil’s motion for leave
to proceed IFP on appeal, the district court certified that the appeal was not
taken in good faith.
By moving to proceed IFP, Kalluvilayil is challenging the district court’s
certification that his appeal is not taken in good faith. See Baugh v. Taylor,
117 F.3d 197, 202 (5th Cir. 1997). Our inquiry into an appellant’s good faith
“is limited to whether the appeal involves legal points arguable on their merits
(and therefore not frivolous).” Howard v. King, 707 F.2d 215, 220 (5th Cir.
1983) (internal quotation marks and citation omitted). We may dismiss the
appeal under 5th Circuit Rule 42.2 if it is frivolous. See Baugh, 117 F.3d at
202 n.24; 5TH CIR. R. 42.2.
Kalluvilayil argues that he is eligible for mandatory supervision and has
a protected liberty interest to release on mandatory supervision according to
the law in effect at the time of his offense and conviction. He contends that it
is an ex post facto violation to apply the revised discretionary mandatory
supervision provisions to him.
Kalluvilayil was convicted of murder and sentenced to life imprisonment
in 1991 for a 1990 offense. Kalluvilayil v. State, 1992 WL 141385 (Tex. App.
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1992). Although the law in effect at the time of his offense provided for release
to mandatory supervision, in 2001, the Texas Court of Criminal Appeals
(TCCA) held that “a life sentenced inmate is not eligible for release to
mandatory supervision” under the 1981 version of the relevant statute, then
codified at Article 42.12, Section 15(c), V.A.C.C.P, which the TCCA noted had
“not substantively changed” since 1981. Ex parte Franks, 71 S.W.3d at 327.
In a § 2254 proceeding, this court, relying on Franks, held that a Texas inmate
serving a life sentence was not eligible for release under the mandatory
supervision statute and had no constitutionally protected interest. Arnold, 306
F.3d at 279.
The district court did not err in relying on Arnold and Franks to support
its determination that Kalluvilayil was not eligible for and did not have a
protected liberty interest in release to mandatory supervision because he was
serving a life sentence. Even if Kalluvilayil is eligible for parole, “there is no
right or constitutional expectancy of early release on parole in Texas, because
parole is within the total and unfettered discretion of the State.” Teague v.
Quarterman, 482 F.3d 769, 774 (5th Cir. 2007).
Kalluvilayil cites no authority for his argument that he has some sort of
constitutional right to be released from imprisonment so that he can be
deported. It was not unreasonable for the district court to dismiss
Kalluvilayil’s action without giving him the opportunity for discovery and a
hearing because his allegations failed to state a claim. Regarding the denial
of his post-judgment motion, Kalluvilayil has not shown that the district
court’s dismissal of his complaint was erroneous. The district court did not err
in dismissing Kalluvilayil’s complaint as frivolous and for failure to state a
claim. See Geiger v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005).
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The district court’s certification that Kalluvilayil’s appeal is not taken in
good faith is upheld, Kalluvilayil’s motions for IFP and appointment of counsel
are denied, and this appeal is dismissed as frivolous. See Baugh, 117 F.3d at
202 & n.24; 5TH CIR. R. 42.2.
We hereby inform Kalluvilayil that the dismissal of this appeal as
frivolous counts as a strike for purposes of 28 U.S.C. § 1915(g). See Adepegba
v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996). The dismissal of his complaint
by the district court as frivolous and for failure to state a claim also counts as
a strike. Id. at 387-88. We caution Kalluvilayil that once he accumulates three
strikes, he may not proceed IFP in any civil action or appeal filed while he is
incarcerated or detained in any facility unless he is under imminent danger of
serious physical injury. See § 1915(g).
IFP DENIED; APPOINTMENT OF COUNSEL DENIED; APPEAL
DISMISSED; SANCTION WARNING ISSUED.
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