UNITED STATES COURT OF APPEALS
For the Fifth Circuit
NO. 93-8607
JOHN LEE COOK, SR.,
Plaintiff-Appellant,
versus
TEXAS DEPARTMENT OF CRIMINAL JUSTICE
TRANSITIONAL PLANNING DEPARTMENT,
Southern Region Institutional Division, ET AL.,
Defendants-Appellees.
Appeal from the United States District Court
for the Western District of Texas
( October 21, 1994 )
Before REAVLEY, DeMOSS, and STEWART, Circuit Judges.
DeMOSS, Circuit Judge:
John Lee Cook challenges as unconstitutional a parole board
procedure that allowed the board to take voided prior convictions
into consideration when making eligibility determinations. The
issue presented is whether such a claim is cognizable under 28
U.S.C. § 1983 or must instead be brought, after exhausting state
remedies, as a habeas corpus claim under 28 U.S.C. § 2254.
BACKGROUND
Cook was convicted of burglary in 1964. In 1982, Cook was
convicted of indecency with a child, and received twenty years,
which included a ten-year enhancement for the 1964 conviction. In
1987, this Court voided Cook's 1964 conviction because Cook was
indigent and without counsel at his probation revocation hearing in
1964. Cook v. Lynaugh, 821 F.2d 1072 (5th Cir. 1987). The Court
also reversed Cook's 1982 conviction, holding that Cook's counsel
was constitutionally ineffective for failing to investigate the
validity of the 1964 sentence. Id. at 1079. Cook later entered a
nolo plea on the indecency charge (under the same indictment) in
return for time served on the 1982 conviction. Cook contends he
did so because the prosecutor threatened to re-try him, thereby
keeping the case tied up in court and Cook in jail.
In February 1993, Cook was again convicted, this time for
possession of a controlled substance. He was sentenced to Texas
Department of Criminal Justice for five years. Cook neither
appealed the conviction nor petitioned for habeas corpus relief.
In April 1993, the Texas Board of Pardons and Paroles (the Board)
evaluated Cook for parole eligibility. The Board denied parole
based on Cook's (1) criminal behavior pattern, (2) involvement with
a controlled substance or inhalant, (3) multiple-offender status,
and (4) parole violation on a previous sentence. Cook acknowledges
that his involvement with a controlled substance is a legitimate
consideration for the Board in deciding his eligibility for parole.
Cook argues, however, that the parole board violated his
constitutional rights by considering the other three factors, which
were based on convictions held void by decision of this court.
2
Cook filed a complaint pursuant to 42 U.S.C. § 1983.
Defendants, Midland County, Texas and Sheriff Gary Painter treated
Cook's pleading as a civil rights complaint and filed an answer.
In their answer, they contend Cook failed to sufficiently allege
claims against them. The district court did not address this
contention. The State, treating the case as a writ of habeas
corpus, moved to dismiss for failure to exhaust state remedies.
The district court, adopting the Report and Recommendation of the
Magistrate, held that Cook's challenge to the parole board
procedure raised both § 1983 and habeas corpus claims because Cook
challenged both the procedure under which his parole hearing was
conducted and the result of his single parole hearing. The
district court's holding was based on the well-settled rule that
when a prisoner challenges a single allegedly defective hearing
affecting eligibility for, or entitlement to, accelerated release,
he must pursue those claims initially through habeas corpus.
Johnson v. Pfeiffer, 821 F.2d 1120, 1123 (5th Cir. 1987). The
court reasoned that Cook's claim for injunctive relief, which
essentially is an attack on the propriety of a single allegedly
defective hearing may not be asserted until habeas corpus remedies
have been exhausted. Accordingly, the district court dismissed
Cook's habeas claims for failure to exhaust state remedies;
dismissed the § 1983 claims without prejudice; and conditionally
stayed the statute of limitations, provided Cook sought habeas
corpus relief in the state court within ninety days. We now
reverse.
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DISCUSSION
The line between claims which must initially be pressed by
writ of habeas corpus and those cognizable under § 1983 is a blurry
one. A section 1983 action is an appropriate remedy for recovering
damages resulting from illegal administrative procedures.
Richardson v. Fleming, 651 F.2d 366, 372 (5th Cir. 1981). On the
other hand, the writ of habeas corpus is the appropriate federal
remedy for a state prisoner challenging the fact of confinement.
Preiser v. Rodriquez, 411 U.S. 475, 484 (1973). The core issue in
determining whether a prisoner must pursue habeas corpus relief
rather than a civil rights action is to determine whether the
prisoner challenges the "fact or duration" of his confinement or
merely the rules, customs, and procedures affecting "conditions" of
confinement. Spina v. Aaron, 821 F.2d 1126, 1128 (5th Cir. 1987).
Section 1983 is an appropriate legal vehicle to attack
unconstitutional parole procedures or conditions of confinement.
Johnson, 821 F.2d at 1123; Preiser, 411 U.S. at 498. However, when
a prisoner challenges the result of a single defective parole
hearing that claim must be pursued by writ of habeas corpus. See
Strader v. Troy, 571 F.2d 1263, 1269 (4th Cir. 1978).
Additionally, broad-based challenges to the parole board's rules
and procedures that affect a prisoner's release must also be
pursued in habeas corpus, if resolution of the factual and legal
allegations would automatically entitle the plaintiff to
accelerated release. Johnson, 821 F.2d at 1123. In considering
whether a broad-based claim has such an effect, a distinction must
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be made between claims that would merely enhance eligibility for
accelerated release and those that would create entitlement to such
relief. Serio v. Members of La. State Bd. of Pardons, 821 F.2d
1112, 1119 (5th Cir. 1987). A claim that has an indirect impact on
the determination of whether a claimant eventually receives parole
may still be cognizable under § 1983. Johnson, 821 F.2d at 1123.
The district court was of the opinion that Cook sought a
"mixed bag" of relief, which involved both § 1983 and § 2254,
because Cook challenged both the procedure under which his parole
hearing was conducted and the result of that hearing. When claims
can be separated, it is generally not proper to dismiss an entire
complaint on non-exhaustion grounds merely because the complaint
raises both habeas and § 1983 claims. The district court, however,
felt that Cook's § 1983 and habeas claims were "inextricably
intertwined." Therefore, the district court dismissed Cook's
entire complaint.
We hold that Cook's challenge to the parole board procedure is
cognizable under § 1983, and that dismissal was therefore improper.
Cook is not challenging the fact of his conviction or confinement,
but is merely seeking to avoid what he believes is an
unconstitutional procedure by the Board. Further, Cook does not
ask this Court to order a new parole hearing, but instead seeks
injunctive relief to prevent the Board from considering the voided
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prior convictions in future parole hearings.1 Thus, Cook is not
challenging a "single defective hearing."
Likewise, our decision in Cook's favor does not entitle him to
immediate release. Granting Cook the relief he seeks will merely
prohibit the Board from considering his voided prior convictions in
future parole hearings. The Board is still charged with
determining if and when Cook is released on parole, which will be
governed, as was the initial decision, by factors in addition to
these raised in this appeal. We follow our sister circuit in
holding that a prisoner's challenge to parole board consideration
of voided prior convictions is cognizable under § 1983, when the
prisoner does not challenge the result of the hearing or request a
new hearing at a specified time. Strader v. Troy, 571 F.2d 1263,
1269 (4th Cir. 1978).
We therefore REVERSE the district court's order dismissing
Cook's complaint and REMAND the case to the district court. On
1
The district court found that Cook had requested a rehearing
by the parole board. We have searched the record and the briefs on
appeal. Although there are two isolated phrases in Cook's trial
pleadings that could be interpreted as a request for a new parole
hearing, the phrases are not without ambiguity. We are bound to
interpret pro se pleadings liberally. Read in context, we do not
agree that Cook definitively requested a new parole hearing. Cook
repeatedly states, both in his Complaint and in his briefs on
appeal, that he realizes he is not entitled to a new parole hearing
and that he is merely seeking to avoid the taint of his voided
prior convictions in any future hearings. [See Complaint
(plaintiff "requests that the Court issue a prospective injunction
against the State Parole Board, and Midland County to prevent the
use of the two void prior convictions in any judicial proceeding
that may affect the plaintiff unfavorably"); Appellant's Brief
(appellant "knows that he cannot obtain [a] new parole hearing");
Notice of Appeal (claiming he does not seek a new parole hearing at
a definite time but instead seeks injunctive relief prohibiting
consideration of his prior void convictions in future hearings).
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remand, the court should order entry of injunctive relief
prohibiting the Board, in future parole proceedings, from
considering Cook's two prior convictions held void in Cook v.
Lynaugh, 821 F.2d 1072 (5th Cir. 1987).2 Additionally, we conclude
from the district court's order that it also dismissed Cook's
separate § 1983 claims against Midland County, Texas and Sheriff
Gary Painter, which related to access to legal materials. Such
claims are clearly cognizable under § 1983. On remand, the claims
against Midland County, Texas and Sheriff Gary Painter should be
reinstated and considered by the district court.
2
We note that enjoining the board from considering the two
voided prior convictions will not make Cook a first time offender.
Cook's second conviction on the indecency charge, which was based
on Cook's nolo plea, has not been declared void. Although Cook
alleges this conviction was based on the same "fatally defective
indictment" as the first indecency conviction, Cook has not asked
this court to declare the conviction void. Such a claim by Cook
would have to be brought as a habeas corpus claim under 28 U.S.C.
§ 2254 (1994).
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No. 93-8607, John Lee Cook, Sr. v. Texas Department of Criminal
Justice Transitional Planning Department, Southern Regional
Institutional Division, et al.
REAVLEY, Circuit Judge, dissenting:
Cook only seeks a declaration or injunction against
utilization of a void conviction in any future parole hearing. He
seeks no damages or change in his custody. He has acted pro se as
his own attorney. If the Texas authorities have notice of the
voiding of the 1964 conviction and will not use the conviction
itself against him in future hearings, and no reason appears to
expect them to do otherwise, I fail to see the controversy. Cook
would have what he wants, and this lawsuit should end.
wjl\opin\93-8607.opn
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