IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
February 1, 2008
No. 06-41196 Charles R. Fulbruge III
Clerk
BILLY RAY WALLACE
Petitioner-Appellant
v.
NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION
Respondent-Appellee
Appeal from the United States District Court
for the Eastern District of Texas
Before HIGGINBOTHAM, DAVIS, and SMITH, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
Billy Ray Wallace was convicted of capital murder and was sentenced to
life imprisonment on December 10, 1981. He was incarcerated in a Texas prison.
The Texas parole rules changed between sentencing and when he became
eligible for parole. He alleges that had the rules not changed, he would have
received parole and that the rule change violated the Ex Post Facto Clause of the
Constitution. Following state denial of relief, the district court denied his
habeas petition. We granted his Certificate of Appealability.
No. 06-41196
I
Wallace was sentenced to life in 1981 and incarcerated in Tennessee
Colony, Texas in the Coffield Unit. When Wallace was sentenced, the Texas
Code of Criminal Procedure provided,
In matters of parole and release to mandatory supervision, the
board members and commissioners may act in panels comprised of
three persons in each panel. The composition of the respective
panels shall be designated by the board. A majority of each panel
shall constitute a quorum for the transaction of its business, and its
decisions shall be by a majority vote.1
When he became eligible for parole, the procedural requirements for parole
were stricter, stating,
To release on parole an inmate who was convicted of a capital felony
. . . all members of the board must vote on the release on parole of
the inmate, and at least two-thirds of the members must vote in
favor of the release on parole. A member of the board may not vote
on the release unless the member first receives a copy of a written
report from the department on the probability that the inmate
would commit an offense after being released on parole.2
Wallace alleges that the eighteen-member board denied him parole but
that two of the board members with supervisory authority over Coffield inmates
voted to approve parole for Wallace. If the panel had consisted of three
members, he asserts, he would have obtained the majority vote required for
parole under the 1981 rules.
Wallace first objected to the denial of parole before a state district court,
filing a habeas writ and an amended writ. That court forwarded the writ to the
Texas Court of Criminal Appeals, which denied the writ without a written order.
Wallace filed for federal habeas relief on October 4, 2004. The district court
1
TEX. CODE CRIM. PROC. ANN. art. 42.12 §14A(e) (West 1981).
2
TEX. GOV’T CODE ANN. §508.046 (West 2001).
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No. 06-41196
adopted a magistrate judge’s recommended findings of fact and conclusions of
law and denied relief. The court denied Wallace’s Certificate of Appealability.
He filed notice of appeal with this court, and we granted a Certificate of
Appealability.
II
Pursuant to the Antiterrorism and Effective Death Penalty Act of 1996,3
where a state court has rejected a petitioner’s habeas claims, a federal court may
grant habeas relief only where the state court decision
(1) resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented in the
State court proceeding.4
Wallace contends that the state court’s decision is contrary to or an
unreasonable application of clearly established law. He argues that rules
increasing the size of parole voting panels violate the Ex Post Facto Clause and
that the state court’s implicit finding that the rule would not retroactively
increase the period of incarceration was an unreasonable application of the law.
We review the district court’s decision de novo, applying the same
standard of review that the district court applied.5 A state court decision is
“contrary to . . . clearly established precedent if the state court applies a rule
3
AEDPA applies because Wallace petitioned the district court on October 4, 2004.
AEDPA went into effect on April 24, 1996. See Williams v. Cain, 125 F.3d 269, 273-74 (5th
Cir. 1997); see also id. at 274 (holding that “the relevant date for determining the applicability
of the AEDPA to habeas corpus petitions is the date that the actual habeas corpus petition is
filed”).
4
28 U.S.C. § 2254(d).
5
Foster v. Johnson, 293 F.3d 766, 776 (5th Cir. 2002).
3
No. 06-41196
that contradicts the governing law set forth in [the Supreme Court’s] cases.”6 “A
state-court decision will also be contrary to . . . clearly established precedent if
the state court confronts a set of facts that are materially indistinguishable from
a decision of [the Supreme Court] and nevertheless arrives at a result different
from [Supreme Court] precedent.”7 “A state-court decision involves an
unreasonable application of [Supreme Court] precedent if the state court
identifies the correct governing legal rule from [the] Court’s cases but
unreasonably applies it to the facts of the particular state prisoner’s case.”8
Under the Ex Post Facto Clause, “[l]egislatures may not retroactively alter
the definition of crimes or increase the punishment for criminal acts.”9 A statute
violates the Ex Post Facto Clause only if it retroactively “effects [a] change in the
definition of respondent’s crime”10 or “increases the ‘punishment’ attached to
respondent’s crime.”11 Only the latter analysis applies to Wallace.
We are not persuaded that the district court erred in holding that the
Texas Court of Criminal Appeals’ denial of relief was not contrary to clearly
established federal law or an unreasonable application of the law.
In Portley v. Grossman,12 a criminal defendant pled guilty and served his
sentence.13 The Parole Commission released the defendant, but the Commission
6
Williams v. Taylor, 529 U.S. 362, 405 (2000).
7
Id. at 406.
8
Id. at 407.
9
Collins v. Youngblood, 497 U.S. 37, 43 (1990) (citing Beazell v. Ohio, 269 U.S. 167,
169-70 (1925)).
10
Cal. Dep’t of Corr. v. Morales, 514 U.S. 499, 505 (1995).
11
Id.
12
444 U.S. 1311 (1980).
13
Id.
4
No. 06-41196
revoked his parole after a state court convicted him on two new offenses.14 The
Commission revoked his parole under new reparole guidelines not in existence
when he was originally sentenced.15 The Supreme Court held that there was no
ex post facto violation because the guidelines in question operated “only to
provide a framework for the Commission’s exercise of its statutory discretion”16;
the Commission’s “determination to grant or deny parole was committed to
agency discretion”17 when the defendant was originally sentenced and when the
Commission voted to revoke parole. The Court concluded that the guidelines
“neither deprive[d] applicant of any pre-existing right nor enhance[d] the
punishment imposed.”18
Although Wallace objects to the state code rather than to agency
guidelines, and the discretion granted to the board under the code varies from
Portley’s facts, similar reasoning applies. In 1981, the Texas code stated that the
board members and commissioners “may act in panels comprised of three
persons.”19 This language is discretionary and does not create any “pre-existing
right” to release.20 Because of the discretionary nature of the 1981 code, the
1995 code does not “produce[] a sufficient risk of increasing the measure of
punishment attached to the covered crimes.”21 Although the question of whether
14
Id.
15
Id.
16
Id. at 1312.
17
Id. (quotations omitted).
18
Id. at 1312-13.
19
TEX. CODE CRIM. PROC. ANN. art. 42.12 §14A(e) (West 1981).
20
Portley, 444 U.S. at 1312.
21
Morales, 514 U.S. at 509.
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No. 06-41196
a state court decisions is “contrary to” federal law turns on Supreme Court law,22
the law of this circuit affirms how Portley and Morales apply to the Texas code
and is worthy of discussion.
The 1981 code provided only that three-member (rather than eighteen-
member) panels may vote on parole and release. “‘Parole is not a right, but
rather only an expectation that may be granted by the Commission.’”23 As we
held in Simpson v. Ortiz, “The Parole Commission determines a prisoner’s
suitability for parole, not his eligibility, for the latter is determined by the length
of one’s sentence.”24 While changes to parole eligibility could retroactively
increase punishment, determinations of suitability for parole, as determined by
an eighteen- or a three-person panel, are discretionary.
Simpson re-affirmed our holding in Sheary v. United States25 that changes
in Parole Commission guidelines on the suitability of parole do not violate the
Ex Post Facto Clause.26 This is consistent with Portley’s holding that changes
to discretionary parole guidelines do not have ex post facto implications.27 Rules
affecting eligibility for parole may violate the clause, but discretionary rules
affecting suitability do not.28 The rule at issue here addresses suitability, not
eligibility, for parole. As discussed above, Tex. Government Code § 508.046
provides,
22
See, e.g., Taylor, 529 U.S. at 405.
23
Simpson v. Ortiz, 995 F.2d 606, 610 (5th Cir. 1993) (quoting Stroud v. United States
Parole Commission, 668 F.2d 843, 847 (5th Cir.1982)).
24
Id.
25
822 F.2d 556, 558 (5th Cir. 1987).
26
995 F.2d at 610 (citing Sheary, 822 F.2d at 558).
27
444 U.S. at 1312.
28
Id.
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No. 06-41196
To release on parole an inmate who was convicted of a capital felony
. . . all members of the board [of Pardons and Paroles] must vote on
the release on parole of the inmate, and at least two-thirds of the
members must vote in favor of the release on parole. A member of
the board may not vote on the release unless the member first
receives a copy of a written report from the department on the
probability that the inmate would commit an offense after being
released on parole.
In other words, once a prisoner is eligible for parole, the board votes on his
suitability for parole. Simpson held that “[t]he Parole Commission determines
a prisoner’s suitability for parole, not his eligibility.”29 The code that Wallace
contests addresses parole board decisionmaking; it relates directly to the
Commission’s determination of suitability for parole and does not have ex post
facto implications.
The difference between the facts of this case and Portley, as well as our
holdings in Sheary and Simpson, is that the parole provisions at issue in those
cases were clearly “guidelines,” whereas the Texas Government Code does not
describe its rules as guidelines. Aside from the label, the rules are in all
respects “guidelines,” as they address voting procedures for the board’s
discretionary vote on the suitability of parole.
That said, parole board “discretion does not displace the Ex Post Facto
Clause’s protections.”30 Increasing the number of board members who must vote
on parole may create more than a “speculative, attenuated risk of affecting a
prisoner’s actual term of confinement”31 in certain circumstances, unlike changes
29
Id.
30
Garner v. Jones, 529 U.S. 244, 253 (2000).
31
Morales, 514 U.S. at 508-09.
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No. 06-41196
in the “frequency of parole suitability proceedings”32 and other procedural
guidelines affecting parole.
Although the 1981 and 1995 code language does not alone show a
significant risk of increased confinement, a court must look to the specific facts
of the case, if a claimant has presented such facts, to determine whether a new
law produces a “sufficient risk”33 of increased confinement. As the Supreme
Court held in Garner v. Jones,
When the rule does not by its own terms show a significant risk, the
respondent must demonstrate, by evidence drawn from the rule’s
practical implementation by the agency charged with exercising
discretion, that its retroactive application will result in a longer
period of incarceration than under the earlier rule.34
Wallace claims that the meeting minutes he presented to the state court
showed that Brenolyn Rogers-Johnson and Sandy Walker – Board members who
had supervisory control over Coffield Unit inmates – voted in favor of Wallace’s
parole. There is no indication from the state record, however, that Wallace
produced evidence that these Board members voted on both panels or that they
would have been assigned to the later panel if it were a three-person panel.
Wallace produced only speculative evidence that the new rules produced a risk
of increased confinement.
AFFIRMED.
32
Garner, 529 U.S. at 251.
33
Morales, 514 U.S. at 509.
34
529 U.S. at 255.
8