Kennedy v. Texas Pardons & Paroles

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT June 29, 2005

Charles R. Fulbruge III
Clerk
No. 04-10428
Summary Calendar

KARSTEN GRANT KENNEDY,

Plaintiff-Appellant,

versus

STATE OF TEXAS PARDONS AND PAROLES;
GERALD GARRETT, Chairman,

Defendant-Appellee.

--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:03-CV-291-C
--------------------

ON REMAND FROM THE SUPREME COURT OF THE UNITED STATES

Before HIGGINBOTHAM, JONES and PRADO, Circuit Judges.

PER CURIAM:*

This court affirmed on alternate grounds the dismissal of a

42 U.S.C. § 1983 lawsuit filed by Karsten Grant Kennedy, Texas

prisoner # 1036345. Kennedy v. Texas Pardons and Paroles, 111

Fed. Appx. 219 (5th Cir. Aug. 18, 2004)(No. 04-10428)(per

curiam). The Supreme Court vacated and remanded for further

consideration in light of Wilkinson v. Dotson, 125 S. Ct. 1242

*
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this opinion should not be published and is not precedent except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. 04-10428
-2-

(2005). Kennedy v. Texas Board of Pardons and Paroles, 125

S. Ct. 1637 (2005).

In Wilkinson, the Supreme Court repeated its long-held

conclusion that prisoners must challenge parole proceedings in

habeas if “they seek to invalidate the duration of their

confinement--either directly through an injunction compelling

speedier release or indirectly through a judicial determination

that necessarily implies the unlawfulness of the State’s

custody.” 125 S. Ct. at 1247. In the instant case, Kennedy

requested that the courts “force compliance of release, through

injunctive relief, as well as declaratory relief.” Because

Kennedy is requesting immediate or speedier release to mandatory

supervision, his claims are properly presented in habeas. See

Wilkinson, 125 S. Ct. at 1247; see also Cook v. Texas Dep’t of

Crim. Justice Transitional Planning Dep’t, 37 F.3d 166, 169 (5th

Cir. 1994). The judgment of the district court dismissing

Kennedy’s 42 U.S.C. § 1983 action is AFFIRMED.