IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-50433
Summary Calendar
KENDALL M. ALLISON,
Plaintiff-Appellant,
versus
JACK KYLE, Chairman, Board of Pardons and Paroles;
MELINDA BOZARTH, Division Director, Texas Board
of Pardons and Paroles,
Defendants-Appellees.
Appeal from the United States District Court for the
Western District of Texas
(September 21, 1995)
Before GARWOOD, WIENER, and PARKER, Circuit Judges.
PER CURIAM:
Plaintiff-appellant Kendall M. Allison (Allison), a Texas
state prisoner proceeding pro se and in forma pauperis (IFP), filed
this civil rights suit pursuant to 42 U.S.C. § 1983 against Jack
Kyle, Chairman, Texas Board of Pardons and Paroles, and Melinda
Bozarth, Division Director, Texas Board of Pardons and Paroles.
Allison alleged that application of the 1987 and 1992 parole review
procedures violated the Due Process Clause and that the change in
rules governing the scheduling of parole reconsideration hearings
violated the Ex Post Facto Clause. Allison sought a declaratory
judgment stating that he was being denied due process and an
injunction ordering the defendants to review him for parole
annually. He did not seek damages. A magistrate judge recommended
dismissing Allison’s suit, with prejudice, as frivolous pursuant to
28 U.S.C. § 1915(d). Allison objected to the magistrate judge’s
report and recommendation. Adopting the magistrate judge’s report
and recommendation, the district court dismissed Allison’s suit
pursuant to section 1915(d). Allison filed a timely notice of
appeal.
A complaint filed IFP may be dismissed as frivolous if it
lacks an arguable basis in law or fact. 28 U.S.C. § 1915(d); Eason
v. Thaler, 14 F.3d 8, 9 (5th Cir. 1994). A complaint lacks an
arguable basis in law if it is “based on an indisputably meritless
legal theory,” such as if the defendants are clearly immune from
suit or if the complaint alleges the violation of a legal interest
that clearly does not exist. Neitzke v. Williams, 490 U.S. 319,
327 (1989). This Court reviews a section 1915(d) dismissal for
abuse of discretion. Graves v. Hampton, 1 F.3d 315, 317 (5th Cir.
1993).
The initial question is whether Allison’s claims are
cognizable under section 1983. “Section 1983 is an appropriate
legal vehicle to attack unconstitutional parole procedures or
conditions of confinement.” Cook v. Texas Dep’t of Criminal
Justice Transitional Planning Dep’t, 37 F.3d 166, 168 (5th Cir.
1994). However, if a prisoner is challenging the result of a
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specific defective parole hearing or is challenging a parole
board’s rules and procedures that affect his release and resolution
would automatically entitle him to accelerated release, then the
challenge must be pursued by writ of habeas corpus. Id. The
distinction is between claims that would “merely enhance
eligibility for accelerated release and those that would create
entitlement to such relief.” Id. (citation omitted). A claim that
has an indirect impact on whether a claimant eventually receives
parole may still be cognizable under section 1983. Id.
Allison stated in his complaint that he was not alleging that
his conviction was unlawful and was not seeking a speedier release
from confinement. He is seeking annual parole hearings in the
future, and he is not seeking monetary damages. Allison is seeking
to have the Parole Board comply with what he contends are due
process and ex post facto requirements in its parole review
procedures. It appears that a favorable determination on these
issues would not automatically entitle Allison to accelerated
release. Therefore, his claims are properly raised under section
1983.
Allison asserts that he is entitled to annual parole review
hearings. Liberally construed, Allison’s brief argues that new
parole review procedures deny him due process. He asserts that the
Board reviewed his record for possible parole in 1992 and did not
schedule a reconsideration hearing to be held until 1998.
“‘[N]either habeas nor civil rights relief can be had absent
the allegation by a plaintiff that he or she has been deprived of
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some right secured to him or her by the United States Constitution
or the laws of the United States.’” Hilliard v. Bd. Of Pardons and
Parole, 759 F.2d 1190, 1192 (5th Cir. 1985) (citation omitted). At
least in the context of challenges to conditions of confinement,
liberty interests created by state statutes which are protected by
the Due Process Claim “will be generally limited to freedom from
restraint which, while not exceeding the sentence in such an
unexpected manner as to give rise to protection by the Due Process
Clause of its own force, nonetheless imposes atypical and
significant hardship on the inmate in relation to the ordinary
incidents of prison life.” Sandin v. Conner, 115 S.Ct. 2293, 2300
(1995) (internal citations omitted).
This Court recently stated that a challenge to parole review
procedures which affect the duration of confinement “might have
implicated the narrow range of prisoner liberty interests remaining
after Sandin” but for the fact that Texas law does not create a
liberty interest in parole that is protected by the Due Process
Clause. Orellana v. Kyle, No. 95-50252 (5th Cir. Aug. 11, 1995)
(unpublished) (citing Creel v. Keene, 928 F.2d 707, 712 (5th Cir.),
cert. denied, 501 U.S. 1210 (1991); Gilbertson v. Texas Bd. of
Pardons & Paroles, 993 F.2d 74, 75 (5th Cir. 1993)). “It follows
that because [the prisoner] has no liberty interest in obtaining
parole in Texas, he cannot complain of the constitutionality of
procedural devices attendant to parole decisions.” Orellana at 6.
The district court properly disposed of Allison’s claim regarding
alleged due process violations resulting from the parole review
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process.
Allison argues that because he was convicted in 1969,
application of the 1987 and 1992 Parole Rules that altered the
period between parole reconsideration hearings constitutes an ex
post facto violation. Liberally construed, Allison’s brief argues
that the Parole Board is illegally employing procedures enacted
after the date of the commission of his offense and conviction,
which results in an extension of the period between his parole
reviews.
A law need not impair a vested right to violate the ex post
facto prohibition. See Weaver v. Graham, 450 U.S. 24, 29-30
(1981). “The presence or absence of an affirmative, enforceable
right is not relevant. . . . Critical to relief under the Ex Post
Facto Clause is not an individual’s right to less punishment, but
the lack of fair notice and government restraint when the
legislature increases the punishment beyond what was prescribed
when the crime was consummated.” Id. At 30.
Allison asserts that he was convicted in 1969 for robbery and
was given a life sentence. He was released on parole in 1982. In
1983 he was convicted of aggravated robbery and was sentenced to 99
years’ imprisonment. In 1991 his 99-year sentence was reduced to
35 years. In 1992 Allison’s case was reviewed for parole, which
was denied, and Allison was given a six-year setoff for review in
March 1998. He argues that because his TDC number did not change
from that issued when he was serving the sentence for the 1969
conviction, his parole eligibility should be governed by the laws
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in effect in 1969, which required annual parole review. The
district court analyzed the Parole Rules and former Texas Code of
Criminal Procedure article 42.12, and determined that there was no
ex post facto violation.
Assuming without deciding that Allison’s parole review is
governed by the laws in place in 1969, there is no ex post facto
violation. Article 42.121 provided in pertinent part, “[w]ithin
one year after a prisoner’s admittance to the penal or correctional
institution and at such intervals thereafter, as it may determine,
the Board shall secure and consider all pertinent information
regarding each prisoner[.]” The article did not mandate annual
parole review. See Creel v. Kyle, 42 F.3d 955, 957 (5th Cir.),
cert. denied, 115 S.Ct. 1706 (1995). This is the same language
review by this Court on a similar ex-post-facto challenge in Creel,
42 F.3d at 957. This Court found that a 1985 amendment to parole
rules concerning the timing of reconsideration hearings did not
change the law in effect in 1971 and, thus, there was no ex post
facto violation. Id. At 957; see also California Dep’t of
Corrections v. Morales, 115 S.Ct. 1597, 1605 (1995) (change in
California law regarding frequency of parole hearings created “only
the most speculative and attenuated risk of increasing the measure
of punishment,” and, thus, did not violate the Ex Post Facto
Clause).
This provision was later designated as Article 42.12, § 15(e).
See Creel v. Kyle, 42 F.3d 955, 957 (5th Cir. 1995). Section 15(e)
was deleted in 1985. Id. Today, article 42.18 governs parole
review procedures, but “makes no mention of the intervals between
reviews for parole eligible individuals.” Id.
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In 1969, article 42.12 allowed the Board to review Allison’s
case for parole at such intervals as it would determine. The 1987
and 1992 parole review rules provide that a case reviewed for
parole consideration may be denied and “set for further review on
a future specific month and year (setoff)[.]” 37 Tex. Admin. Code
§ 145.7 (West Supp. 1987); 37 Tex. Admin. Code § 145.12 (West Supp.
1992). The Board gave Allison a setoff until March 1998, a future
month and date. The review provisions in the 1987, 1992, and
current Administrative Code are consistent with the statutory
requirements in place at the time Allison was convicted. The
district court did not abuse its discretion by dismissing Allison’s
ex post facto claim as frivolous.
AFFIRMED
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