Case: 09-50695 Document: 00511056220 Page: 1 Date Filed: 03/18/2010
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
March 18, 2010
No. 09-50695
Summary Calendar Charles R. Fulbruge III
Clerk
WINDELL HAYES, JR.,
Plaintiff-Appellant
v.
STATE OF TEXAS; JUDGE ROBERT PERKINS, Judge 331st District Court;
DA STEPHINE MCFARLAND, Assistant DA Travis County; DAVID
DEWHURST, President of Senate; RISSIE OWENS, Board of Pardons and
Parole Chair; BRYAN COLLIER, Parole Division Director; DPS DIRECTOR;
GREG ZANEY, appointed counsel; CHRISTINA MELTON CRAIN, TDCJ
Director; GREG HAMILTON, Travis County Sheriff; TOM CRADDICK, Speaker
of the House,
Defendants-Appellees
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:08-CV-182
Before KING, STEWART, and HAYNES, Circuit Judges.
PER CURIAM:*
Windell Hayes, Jr., former Texas prisoner # 1250640, filed a pro se and in
forma pauperis (IFP) civil rights complaint seeking monetary damages against
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 09-50695
the State of Texas; Robert Perkins, a Texas district court judge; Stephine 1
McFarland, a Travis County assistant district attorney; David Dewhurst, the
President of the Texas Senate; Rissie Owens, the chairman of the Board of
Pardons and Parole; Bryan Collier, the director of the parole division; the
unnamed director of the Texas Department of Public Safety (DPS); Greg Zaney,
appointed counsel; Christina Melton Crain, whom Hayes designated as director
of the Texas Department of Criminal Justice (TDCJ); Greg Hamilton, the sheriff
of Travis County; and Tom Craddick, the speaker of the Texas House of
Representatives. Hayes appeals the dismissal of the complaint as frivolous
under 28 U.S.C. § 1915(e)(2)(B)(i).
Hayes, who was convicted of indecency with a child in 1991, alleges that
the Texas sex-offender registration laws violate the Ex Post Facto and Double
Jeopardy Clauses of the Constitution; that he was improperly denied “street
time” credits; that a 2004 conviction for failure to register was invalid; and that
the Texas Court of Criminal Appeals and the district court violated his due
process rights.
A district court must sua sponte dismiss a prisoner’s IFP § 1983 complaint
if the action is malicious or frivolous, fails to state a claim, or seeks monetary
relief from a defendant who is immune. § 1915(e)(2)(B). A claim may be
dismissed as frivolous if it does not have an arguable basis in fact or law. Geiger
v. Jowers, 404 F.3d 371, 373 (5th Cir. 2005). This court reviews a district court’s
dismissal as frivolous for abuse of discretion. Id.
The district court determined that all of the defendants, but for Collier and
Owens, were either immune from suit or were not personally involved in the
alleged violations. Hayes did not challenge the district court’s findings, and, as
such, all claims against those defendants are deemed abandoned. See
Brinkmann v. Dallas County Deputy Sheriff Abner, 813 F.2d 744, 748 (5th Cir.
1
“Stephine” McFarland is likely Stephanie McFarland. R. 77 n.1.
2
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No. 09-50695
1987). Accordingly, the remaining defendants on appeal are Collier (for the
claim that conditions imposed on Hayes while on supervised release violated his
constitutional rights) and Owens (for the claim that Hayes was denied “street
time” credits).
Retroactive application of laws requiring sex-offender registration and
notification do not violate the Ex Post Facto Clause. Smith v. Doe, 538 U.S. 84,
103-04 (2003). Moreover, Hayes has not set forth a viable double jeopardy claim
because he has not established that he received “multiple punishments for the
same offense.” United States v. Brown, 571 F.3d 492, 497 (5th Cir. 2009).
Likewise, Hayes’s claim that he was denied “street time” credit is meritless
because prior to 2001 (when Hayes’s supervision was revoked), Texas law
required the Texas Board of Pardons and Paroles to disregard the street time a
prisoner accumulated while released on parole, and, as such, Hayes had no
liberty interest in those credits. See T EX. G OV’T C ODE A NN.§ 508.283 (Vernon
1998); Thompson v. Cockrell, 263 F.3d 423, 425-28 (5th Cir. 2001).
The district court dismissed, pursuant to Heck v. Humphrey, 512 U.S. 477,
486-87 (1994), Hayes’s claim that his 2004 conviction was invalid. Hayes failed
to challenge the district court’s reasons for the dismissal of this claim by failing
to challenge the Heck bar. Because Hayes failed to identify any error in the
district court’s analysis, it is the same as if he had not appealed the issue. See
Brinkmann, 813 F.2d at 748. Although pro se briefs are afforded liberal
construction, Haines v. Kerner, 404 U.S. 519, 520 (1972), arguments must be
briefed in order to be preserved. Yohey v. Collins, 985 F.2d 222, 224-25 (5th Cir.
1993). Hayes’s claim is therefore deemed abandoned. See Brinkmann, 813 F.2d
at 748. Moreover, because Hayes failed to challenge the district court’s finding
that all defendants relevant to Hayes’s 2004 conviction were either immune from
suit or not personally involved, this claim is deemed abandoned for stronger
reasons. See Brinkmann, 813 F.2d at 748.
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No. 09-50695
Hayes’s conclusory allegations that the Texas Court of Criminal Appeals
and the district court violated his due process rights are insufficient to establish
the denial of a constitutional right. Koch v. Puckett, 907 F.2d 524, 530 (5th Cir.
1990). Accordingly, the district court properly dismissed Hayes’s § 1983
complaint as frivolous.
Hayes’s appeal has no arguable merit, is frivolous, and is dismissed. 5 TH
C IR. R. 42.2; see Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983). Because
Hayes was incarcerated at the time that he filed the instant complaint, the
district court’s dismissal of Hayes’s action as frivolous counts as a strike for
purposes of § 1915(g). See Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir.
1996). Should Hayes be returned to prison and accumulate three strikes, he
would not be permitted to proceed IFP in any civil action or appeal filed while
incarcerated or detained in any facility unless he is under imminent danger of
serious physical injury. See § 1915(g). Hayes is also warned that, as a non-
prisoner, he is subject to sanctions if he makes any further frivolous filings.
Hayes’s motion for appointment of counsel is denied.
APPEAL DISMISSED AS FRIVOLOUS; MOTION DENIED; SANCTION
WARNINGS ISSUED.
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