United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
December 21, 2004
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 03-50743
TONY RAY COLEMAN,
Petitioner-Appellant,
versus
DOUG DRETKE, DIRECTOR, TEXAS
DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee.
Appeal from the United States District Court for
the Western District of Texas
_________________________________________________________
Before REAVLEY, BENAVIDES and PRADO, Circuit Judges.
REAVLEY, Circuit Judge:
Tony Ray Coleman appeals the district court’s denial of his application for
writ of habeas corpus and contends that the state must provide due process before
imposing sex offender registration and therapy as conditions to the release on
mandatory supervision of a prisoner who has never been convicted of a sex crime.
1
We agree that it must.
I. Background
Coleman was convicted of burglary of a habitation in 1986 and sentenced to
thirty years incarceration. He was paroled in 1991. While on parole, the state
indicted Coleman for aggravated sexual assault of a child and indecency with a child
by contact. He pleaded guilty to and was convicted of only misdemeanor assault.
The state revoked his parole following the assault conviction and he was
reincarcerated.
On January 17, 2001, Coleman was released on mandatory supervision on the
condition that he reside in a halfway house until employed.1 On February 27, 2001,
the parole panel imposed two additional conditions on his release, requiring him to
register as a sex offender and attend sex offender therapy. Coleman was not given
advance notice or a hearing to contest the imposition of these conditions. He
1
“Mandatory supervision” is “the release of an eligible inmate so that the inmate
may serve the remainder of the inmate’s sentence not on parole but under the supervision
of the pardons and paroles division.” TEX. GOV’T CODE § 508.001(5) (Vernon 2004).
The parole panel must release an inmate on mandatory supervision when his calendar
time plus accrued good-conduct time equals the maximum term to which he was
sentenced. Id. § 508.147(a). Release on parole, on the other hand, is discretionary with
the panel. Id. §§ 508.001(6); 508.141. Once released, an inmate on mandatory
supervision is considered to be on parole. Id. § 508.147(b). Because the distinction
between mandatory supervision and parole is not highly relevant to the issues at hand, we
will use the simpler term “parole” for the remainder of this opinion.
2
registered, but failed to enroll or participate in therapy. As a result, his parole was
revoked on July 9, 2001.
Coleman challenged the revocation in a pro se habeas petition, alleging
violations of the Due Process and Ex Post Facto Clauses of the federal Constitution.
The Texas Court of Criminal Appeals denied the petition without written order on
May 29, 2002. Coleman then filed his federal habeas petition under 28 U.S.C. §
2254, also pro se. On June 4, 2003, the district court denied the petition. This court
granted Coleman a certificate of appealability on his due process claims.2
II. Procedural Default
The state contends that Coleman procedurally defaulted two of his claims by
failing to include them in his state habeas petition or properly supplement the
petition. Coleman responds that his claims were fairly presented in his state petition
and his self-styled “reply” to the state’s general denial. We review whether a habeas
2
We reject the state’s argument that Coleman should have brought the present suit
under 42 U.S.C. § 1983 rather than as a habeas petition. Generally, § 1983 suits are the
proper vehicle to attack unconstitutional conditions of confinement. Cook v. Tex. Dep’t
of Criminal Justice Transitional Planning Dep’t, 37 F.3d 166, 168 (5th Cir. 1994). A
habeas petition, on the other hand, is the proper vehicle to challenge the fact of
confinement and seek release from custody. Id. Here, Coleman argues that the
conditions placed on his parole were unconstitutional, and thus his failure to abide by
those conditions should not have resulted in his reconfinement. Because he seeks release,
Coleman correctly brought suit under the habeas statute. Id.
3
petitioner’s claims have been procedurally defaulted de novo.3
Procedural default can occur in two ways. First, “[i]f a state court clearly and
expressly bases its dismissal of a prisoner’s claim on a state procedural rule, and that
procedural rule provides an independent and adequate ground for dismissal, the
prisoner has procedurally defaulted his federal habeas claim.”4 Second, if the
prisoner fails to exhaust available state remedies, and the state court to which the
prisoner would have to present his claims in order to exhaust them would find the
claims procedurally barred, the prisoner has defaulted those claims.5
The Texas Court of Criminal Appeals did not “clearly and expressly” base its
denial of Coleman’s application on a procedural rule, so the first kind of procedural
default is not present here.6 The state argues that Coleman did not exhaust his state
remedies, because he never properly presented two of his claims to the state court.
A prisoner fairly presents a claim to the state court when she asserts the claim “in
3
Boyd v. Scott, 45 F.3d 876, 877 (5th Cir. 1994).
4
Nobles v. Johnson, 127 F.3d 409, 420 (5th Cir. 1997); see also Harris v. Reed,
489 U.S. 255, 263 (1989) (holding that “a procedural default does not bar consideration
of a federal claim on . . . habeas review unless the last state court rendering a judgment in
the case clearly and expressly states that its judgment rests on a procedural bar.” (internal
quotation marks ommitted)).
5
Nobles, 127 F.3d at 420.
6
The court denied the application on without written order and did not articulate
its reasoning.
4
terms so particular as to call to mind a specific right protected by the Constitution”
or alleges “a pattern of facts that is well within the mainstream of constitutional
litigation.”7
We conclude that Coleman’s reply adequately presented his claims to the state
court. Coleman made those claims in his reply filed with the state trial court twelve
days before it issued its recommendation and forwarded the habeas record to the
Texas Court of Criminal Appeals. The Court of Criminal Appeals received his reply
one month before it denied his petition. The state courts thus had ample time to
consider all of Coleman’s claims, and no evidence indicates that they regarded his
reply as untimely. The state courts’ failure to expressly rule on those claims does not
prevent the claim from being exhausted.8 Coleman successfully exhausted his state
remedies has not defaulted any claims.
III. Procedural Due Process
Coleman argues that the parole panel’s imposition of sex offender registration
and therapy as conditions to his parole, without providing him the opportunity to
contest his sex offender status, violated his right to due process. We review the
7
Evans v. Court of Common Pleas, 959 F.2d 1227, 1231-33 (2d Cir. 1992)
(internal quotation marks omitted); see Gartrell v. Lynaugh, 833 F2d 527, 528-29 (5th
Cir. 1987).
8
Ridgway v. Baker, 720 F.2d 1409, 1412-13 (5th Cir. 1983).
5
district court’s denial of habeas relief on this legal issue de novo.9 Where, as here,
the state court has adjudicated the merits of a state petition on a question of law, we
must affirm the state’s denial of habeas relief unless the decision was “contrary to, or
involved an unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States.”10 A state court’s decision is
“contrary to” federal law if the court “arrive[d] at a conclusion opposite to that
reached by [the Supreme] Court on a question of law or decides a case differently
than [the] Court has on a set of materially indistinguishable facts.”11
The Court’s precedent dictates that Coleman’s right to procedural due process
depends on a two-step inquiry. We must first determine whether Coleman had a
liberty interest in not having sex offender conditions placed on his parole, and, if so,
whether the state provided constitutionally sufficient procedures before imposing
them.12 The state does not dispute that it provided no process in imposing the
conditions, and that Coleman, not having been convicted of a sex offense, has never
had an opportunity to contest his sex offender status. Thus, if federal law, clearly
9
Moody v. Johnson, 139 F.3d 477, 480 (5th Cir. 1998).
10
28 U.S.C. § 2254(d)(1); Corwin v. Johnson, 150 F.3d 467, 471 (5th Cir. 1998).
11
Williams v. Taylor, 529 U.S. 362, 412-13 (2000).
12
Kentucky Dep’t of Corr. v. Thompson, 490 U.S. 454, 460 (1989).
6
established by the Court, requires the conclusion that Coleman had a liberty interest
in being free from sex offender conditions, we must grant him relief.
A liberty interest may arise from two sources—the Due Process Clause itself
or state law.13 Liberty interests may be circumscribed, however, when an individual
has been convicted of a crime.14 Convicted criminals’ liberty interests are subject to
“the nature of the regime to which they have been lawfully committed.”15 Even so,
“prisoners do not shed all constitutional rights at the prison gate.”16 Despite the
restrictions imposed by incarceration, the Due Process Clause guarantees a prisoner
some process before the government can impose conditions that are “‘qualitatively
different’ from the punishment characteristically suffered by a person convicted of
[the] crime, and [which have] ‘stigmatizing consequences.’”17
Restrictions also attend parole, “an established variation on imprisonment of
13
Sandin v. Conner, 515 U.S. 472, 477-84 (1995).
14
Chapman v. United States, 500 U.S. 453, 465 (1991); Wolff v. McDonnell, 418
U.S. 539, 556 (1974).
15
Wolff, 418 U.S. at 556; see Morrissey v. Brewer, 408 U.S. 471, 478 (1972)
(stating that parolees must abide by conditions of parole).
16
Sandin, 515 U.S. at 485.
17
Sandin, 515 U.S. at 479 n.4 (quoting Vitek v. Jones, 445 U.S. 480, 493-94
(1980)).
7
convicted criminals.”18 These conditions of release are necessary to achieve parole’s
purpose of reintegrating the individual into society while preventing further antisocial
acts.19 However, as in the prison context, a condition may present such a “dramatic
departure from the basic conditions” of a parolee’s sentence that the state must
provide some procedural protections prior to its imposition.20
Coleman argues that, under the Court’s decision in Vitek v. Jones, the sex
offender conditions placed on his parole present such a dramatic departure from the
basic conditions of parole that the Due Process Clause of the Fourteenth Amendment
mandates procedural protections.21 In Vitek, the Court found unconstitutional a state
law that allowed prison officials to identify inmates as mentally ill and transfer them
to mental institutions for involuntary confinement and treatment without a hearing.22
Because of the associated stigma, the Court held that involuntary commitment to an
18
Morrissey, 408 U.S. at 477.
19
Id. at 478-80.
20
See Felce v. Fiedler, 974 F.2d 1484 (7th Cir. 1992) (holding that state may not
condition parole on parolee’s involuntary treatment with psychotropic medication absent
procedural protections); cf. Sandin, 515 U.S. at 485; Vitek v. Jones, 445 U.S. 480, 491-
92; Morrissey, 408 U.S. at 481 (“Whether any procedural protections are due depends on
the extent to which an individual will be condemned to suffer grievous loss.” (internal
quotation marks ommitted)).
21
See Vitek, 445 U.S. 491-94.
22
Id. at 494.
8
institution went beyond the ordinary loss of freedom suffered by inmates.23 The
Court noted that “[a]mong the historic liberties protected by the Due Process Clause
is the right to be free from, and to obtain judicial relief for, unjustified intrusions on
personal security.”24 Based on the combination of stigma and compelled behavior
modification treatment, the court held that the inmate had been deprived of a
protected liberty interest, and thus the state was required to provide procedural
protections.25
Applying Vitek in the sex offender arena, the Ninth and Eleventh Circuits have
held that prisoners who have not been convicted of a sex offense have a liberty
interest created by the Due Process Clause in freedom from sex offender
classification and conditions.26 We agree. The facts of the present case are
23
Id. at 492.
24
Id. (internal quotation marks omitted).
25
Id. at 494.
26
Kirby v. Siegelman, 195 F.3d 1285, 1292 (11th Cir. 1999) (holding that a state’s
classification of a prisoner as a sex offender and requirement that he complete sex
offender treatment as a precondition to parole eligibility implicated a liberty interest
under the Due Process Clause); Neal v. Shimoda, 131 F.3d 818, 831 (9th Cir. 1997)
(holding that a state must provide a hearing before classifying a prisoner as a sex offender
and requiring the prisoner to complete a treatment program as a condition to parole
eligibility); cf. Chambers v. Colo. Dep’t of Corr., 205 F.3d 1237, 1243 (10th Cir. 2000)
(holding that the state’s imposition of sex offender status on an inmate never convicted of
a sex offense, combined with a reduction in good time credits if the inmate did not
participate in treatment, implicated a state-created liberty interest).
9
materially indistinguishable from Vitek. As in Vitek, the state imposed stigmatizing
classification and treatment on Coleman without providing him any process.27 The
state’s sex offender therapy, involving intrusive and behavior-modifying techniques,
is also analogous to the treatment provided for in Vitek.28 Although many parolees
On the other hand, the Eighth Circuit has held that the state need not afford a
prisoner any process before requiring him to register under the state’s predatory offender
registration statute. Gunderson v. Hvass, 339 F.3d 639 (8th Cir. 2003). Gunderson is
distinguishable from the present case, however, because the prisoner there complained
only of harm to his reputation. Id. at 644; see generally Paul v. Davis, 424 U.S. 693, 712
(1976) (holding that harm to reputation alone does not implicate a liberty interest
protected by the Due Process Clause). In the present case, the panel required Coleman to
register and attend sex offender therapy. Indeed, in Gunderson, the court noted that due
process protections may be required where harm to reputation is coupled with “some
other tangible element.” Id.; see also Vitek, 445 U.S. at 494 (holding that “the
stigmatizing consequences of a transfer to a mental hospital . . . coupled with the
subjection of the prisoner to mandatory behavior modification as a treatment for mental
illness, constitute the kind of deprivations of liberty that require procedural protections.”).
27
See Vitek, 445 U.S. at 492 (describing stigma as a phenomenon creating
“adverse social consequences to the individual”); Neal, 131 F.3d at 829 (“We can hardly
conceive of a state’s action bearing more ‘stigmatizing consequences’ than the labeling of
a prison inmate as a sex offender.”).
28
The Council on Sex Offender Treatment is charged with developing strategies to
treat Texas sex offenders. TEX. OCC. CODE § 110.151 (Vernon 2004). The Council
provides information regarding treatment strategies at
http://www.tdh.state.tx.us/hcqs/plc/csottreatment.htm#information. Such strategies range
from counseling and medication to treatment with a penile plethysmograph (a “strain
gauge [which is] strapped to an individual’s genitals while sexually explicit pictures are
displayed in an effort to determine his sexual arousal patterns.” Harrington v. Almy, 977
F.2d 37, 44 (1st Cir. 1992)).
It is unclear exactly what procedures Coleman would be subjected to during his
course of treatment. Coleman asserts that he would be subject to psychiatric medication
and treatment with plethysmographs, as discussed on the Council’s website. Because the
state has not contested this assertion, we accept Coleman’s characterization of Texas’ sex
10
are required to participate in some form of counseling or treatment as a condition on
their release, we find that, due to its highly invasive nature, Texas’s sex offender
therapy program is “qualitatively different” from other conditions which may attend
an inmate’s release.29 Accordingly, the Due Process Clause, as interpreted in Vitek,
provides Coleman with a liberty interest in freedom from the stigma and compelled
treatment on which his parole was conditioned, and the state was required to provide
procedural protections before imposing such conditions.30 Because the state court
offender therapy.
29
See Morrissey, 408 U.S. at 478 (discussing common parole conditions).
30
The state argues that, because the Supreme Court has never specifically held that
the imposition of sex offender conditions without a hearing on a parolee who was never
convicted of a sex offense violates due process, the state’s denial of Coleman’s habeas
petition cannot be contrary to, or an unreasonable application of, the Court’s precedent.
The state’s argument interprets the habeas statute too narrowly. Such a view would
preclude habeas relief in any case with facts that did not exactly replicate the facts of a
Supreme Court decision. The inquiry, instead, is whether the Court has reached a
decision on a set of “materially indistinguishable facts.” Williams, 529 U.S. at 413; see
Yarborough v. Alvarado, __ U.S. __, 124 S.Ct. 2140, 2151 (2004) (“Certain principles
are fundamental enough that when new factual permutations arise, the necessity to apply
the earlier rule will be beyond doubt.”).
The state further notes that the Court has held that due process does not require a
hearing regarding a convicted sex offender’s current dangerousness before the offender
can be required to register. Conn. Dep’t of Pub. Safety v. Doe, 538 U.S. 1 (2003). The
Doe Court, however, far from holding that a liberty interest is not implicated where sex
offender conditions are imposed on those not convicted of a sex offense, noted that the
registration law applied only to those with sex offense convictions. See id. at 7 (“[T]he
law’s requirements turn on an offender’s conviction alone—a fact that a convicted
offender has already had a procedurally safeguarded opportunity to contest.”), and at 9
(Scalia, J., concurring) (noting that “a convicted sex offender has no [] right to additional
11
held otherwise, its conclusion contravened clearly established federal law, and we
therefore reverse the district court’s denial of habeas relief.
III. Substantive Due Process
Coleman also contends that Texas’s imposition of sex offender registration
and therapy absent a sex offense conviction constitutes arbitrary state action that
“shocks the conscience” and thus violates his substantive due process rights.31
Coleman refers this court to the sex offender treatment outlined in the Council for
Sex Offender Treatment’s website.32 As described on the website, “[s]ex offender
treatment is different than traditional psychotherapy in that treatment is mandated,
confrontational, structured, victim centered, focused on behaviors, and
confidentiality is not maintained.” Treatment can include “interventions with
psychopharmacological agents,” polygraph exams to determine sexual history, and
use of penile plethysmographs to “modify deviant sexual arousal and enhance
‘process’ enabling him to establish that he is not dangerous”) (emphasis added). Because
the present case deals with a petitioner who never had the original “procedurally
safeguarded opportunity to contest,” we do not believe Doe provides much guidance.
31
See Rochin v. California, 342 U.S. 165, 172-73 (1952).
32
COUNCIL ON SEX OFFENDER TREATMENT INFORMATION ON THE TREATMENT OF
SEX OFFENDERS, http://www.tdh.state.tx.us/hcqs/plc/csottreatment.htm#information (last
updated Oct. 25, 2004); see supra note 28.
12
appropriate sexual arousal.”33
While these therapeutic measures are certainly intrusive, we do not believe
that clearly established federal law, as determine by the Supreme Court, requires the
conclusion that Texas’s sex offender therapy “shocks the conscience.”34 In County
of Sacramento v. Lewis, the Supreme Court reiterated its reluctance to expand the
concept of substantive due process.35 While the core of substantive due process is
protection from arbitrary government action, “only the most egregious official
conduct” is arbitrary in the constitutional sense.36 The Court noted that behavior
most likely to “shock the conscience” and thus support a substantive due process
claim is “conduct intended to injure in some way unjustifiable by any government
33
In Harrington v. Almy, the First Circuit reversed summary judgment against a
state employee alleging a substantive due process violation based on his employer’s
requirement that he undergo treatment with a plethysmograph to retain his job. 977 F.2d
37. The court stated that “[a] reasonable finder of fact could conclude that requiring the
plethysmograph involves a substantive due process violation. The procedure, from all
that appears, is hardly routine. One does not have to cultivate particularly delicate
sensibilities to believe [that the process is] degrading. . . . The procedure involves bodily
manipulation of the most intimate sort.” Id. at 44.
34
Berthiaume v. Caron, 142 F.3d 12, 17 (1st Cir. 1998) (noting that the
plethysmograph is widely used in the scientific community to treat pedophelia and
rejecting plaintiff’s substantive due process challenge to a professional regulatory board’s
requirement that plaintiff submit to a plethysmograph where the board had “good reason”
to suspect that plaintiff was a pedophile).
35
523 U.S. 833, 842 (1998).
36
Id. at 846.
13
interest.”37 In the present case, sex offender treatment serves the government interest
in protecting members of the community from future sex offenses.38 In addition, as
invasive as the therapy appears, we doubt that the parole panel imposed the therapy
condition with the intent to injure Coleman.
IV. Conclusion
The Texas Department of Criminal Justice is authorized by Texas law to
impose reasonable conditions on parole to serve the interests of protecting the
community and rehabilitating the parolee.39 When those conditions impact a liberty
interest of the parolee, they may be imposed only with justification. The Department
may condition Coleman’s parole on sex offender registration and therapy only if he is
determined to constitute a threat to society by reason of his lack of sexual control.
Absent a conviction of a sex offense, the Department must afford him an appropriate
hearing and find that he possesses this offensive characteristic before imposing such
conditions. This court was told at oral argument that evidence of Coleman’s lack of
37
Id. at 849.
38
McKune v. Lile, 536 U.S. 24, 33 (2002) (“Therapists and correctional officers
widely agree that clinical rehabilitative programs can enable sex offenders to manage
their impulses and in this way reduce recidivism.”).
39
TEX. GOV’T CODE § 508.221 (Vernon 2004); TEX. CODE CRIM. PROC. art. 42.12
§ 11(a) (Vernon Supp. 2004-2005).
14
sexual control exists. None appears in the record, however, and no contention is
made that Coleman has been afforded a hearing meeting the requirements of due
process.
We therefore hold that the sex offender conditions placed on Coleman’s
parole are invalid, and we remand the cause to the district court for disposition
consistent with this opinion. The state is not precluded from further efforts to add
these same conditions to Coleman’s parole upon proper notice and consistent with
this opinion.
Reversed and remanded.
15