*1 COOK, Sr., Plaintiff-Appellant, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE TRANSITIONAL PLANNING
DEPARTMENT, Region Southern Insti Division, al.,
tutional et Defendants-Ap
pellees.
No. 93-8607. Court of
Fifth Circuit. *2 pro- counsel at his indigent and without
was in 1964. Cook hearing revocation bation Cir.1987). (5th The Cook’s also reversed Court was constitution- holding that Cook’s counsel investigate the failing for ineffective Id. validity of the 1964 sentence. inde- plea on the a nolo later entered Cook indictment) (under the same cency charge 1982 conviction. for time served return prose- he did so because contends Cook him, thereby keep- re-try cutor threatened jail. and Cook up ing the case tied again convict- was February Cook In ed, of a controlled possession for this time De- to Texas was sentenced substance. years. for Justice five of Criminal partment pe- nor Sr., Cook, appealed se. neither Cook Lee John April corpus relief. In for habeas titioned Gen., Jeffrey K. Jacks, Atty. Asst. John Pa- Pardons and Board Austin, TX, Gen., Morales, Attys. Sands, Dan Board) (the Cook for evaluated roles Transitional Crim. Justice Dept, of for Texas Board eligibility. The denied Dept. Planning (2) (1) pattern, criminal behavior on Cook’s TX, Midland, Dettman, for Henry Mark a substance with controlled involvement County. (4) status, (3) inhalant, multiple-offender TX, Midland, for Mid- previous a sentence. Hershberger, parole violation Steve with acknowledges that his involvement County and Painter. Cook land consid- legitimate is a a controlled substance eligibili- deciding his Board for the eration however, that argues, Cook ty parole. violated board DeMOSS Before factors, other three by rights STEWART, Judges. Circuit held on convictions were based decision this DeMOSS, Judge: to 42 complaint pursuant a filed Cook challenges as unconstitu- Defendants, Coun- § 1983. U.S.C. allowed tional treated Gary Painter ty, Texas and Sheriff prior convictions to take the board as a civil pleading de- making eligibility into consideration answer, they their answer. In filed an and' is wheth- presented The issue terminations. allege sufficiently failed to contend Cook 42 U.S.C. er such claim did district court them. The claims after brought, instead 1983 or State, The this contention. not address remedies, cor- aas exhausting state of habeas treating the case writ § 2254. U.S.C. under 28 pus claim to exhaust for failure moved to dismiss court, adopting remedies. BACKGROUND Magis- Report and Recommendation challenge trate, held that in 1964. burglary convicted Cook was procedure raised was convicted In chal- twenty years, child, and received with under which lenged both enhancement ten-year which included conducted was In this conviction. the 1964 hearing. The single parole of his conviction because voided Cook’s court’s was based the well-settled claim must be challenges rule that of habeas affecting allegedly eligibili- Strader Cir.1978).
ty for,
to,
release,
Additionally,
entitlement
chal-
accelerated
*3
pursue
initially
lenges
through
proce-
to the
he must
those
board’s rules and
Pfeiffer,
prisoner’s
v.
821
dures
affect a
habeas
Johnson
F.2d
that
release must
(5th Cir.1987).
1120,
court
also be
in
if
1123
rea-
habeas
resolu-
relief,
legal allegations
soned that Cook’s claim for
tion of the factual and
would
essentially
automatically
propri-
plaintiff
which
attack
the
is an
on
entitle the
to acceler-
Johnson,
ety
single allegedly
ated
release.
DISCUSSION 1123. The line between claims which opin The district court was of the initially pressed must be of sought relief, ion bag” a “mixed of § corpus cognizable and those 1983 is 2254, § both involved 1983 and be blurry A one. section 1983 is an action challenged cause Cook both the appropriate remedy recovering damages under which his was conduct resulting illegal proce from administrative ed of that When v. Fleming, dures. Richardson separated, generally claims can be it is (5th Cir.1981). 366, hand, 372 On the other proper to dismiss an entire on non- corpus appropriate the writ of habeas is the grounds merely exhaustion the com remedy prisoner federal challeng raises habeas and 1983 claims. ing the fact of confinement. Preiser Rod court, however, The district felt that Cook’s 484, 1827, riquez, 411 U.S. 93 S.Ct. “inextricably 1983 and habeas claims were 439 L.Ed.2d The core issue in Therefore, intertwined.” determining prisoner pursue whether a complaint. dismissed Cook’s entire relief rather than civil We challenge hold action is determine whether the is challenges the “fact or duration” his con dismissal was im- therefore rules, customs, or merely finement proper. challenging is the fact of procedures affecting “conditions” confine confinement, merely but is Aaron, Spina ment. seeking to avoid he what believes is an un- procedure by the Board. Fur- ther,
Section is an appropriate legal -Cook does not ask this Court to order a pro vehicle to attack parole hearing, injunc- unconstitutional but instead seeks cedures or conditions confinement. John tive relief to the Board from consid- son, 1123; Preiser, 821 F.2d at U.S. at the voided convictions in future However, Thus, parole hearings.1 S.Ct. at 1840-41. not chal- is prisoner challenges lenging “single the result of a hearing.” request- pleadings interpreted The district court found Cook had Cook’s trial that could be rehearing by phras- ed a parole hearing, We have for a board. appeal. ambiguity. searched record and the es are not without We are bound to phrases interpret pro pleadings liberally. there are two isolated se Read in change custody. He has acted
Likewise, in Cook’sfavor does our decision attorney. If the Grant- se his own Texas authori- him to immediate release. as not entitle merely voiding the relief he seeks will ties have notice ing Cook considering his void- prohibit the Board conviction and will not the conviction in future hear- hearings, and no ed itself him future charged with deter- ings. The Board is still appears expect them to do other- reason mining if and when Cook released wise, controversy. I fail to see the governed, as was the parole, wants, which will have what he and this lawsuit decision, in addition those initial factors end. should our sister appeal. in this We follow raised prisoner’s that a circuit *4 prior parole consideration voided
to
convictions the result of does new at a hearing or
specified time. Strader v.
1263, 1269 America, REVERSE dis We therefore UNITED STATES dismissing Plaintiff-Appellee, Cook’s com trict court’s order the case the district and REMAND remand, court should order On and Thomas L. N. MOORE Warren prohibiting entry relief Defendants-Appellants. Arnold, Board, parole proceedings, future prior two convictions held 94-40195, 94-40196 Nos. void in Cook Summary Calendar. Cir.1987).2 Additionally, we conclude from order that it also dis the district court’s Fifth against Circuit. separate 1983 claims
missed Cook’s Gary County, and Sheriff Midland legal Painter, ma which related to access to clearly cognizable are
terials. Such claims remand, 1983. On the claims
against County, Texas and Sheriff
Gary and con Painter should be reinstated district court.
sidered dissenting: Judge, injunction only a declaration or seeks any
against conviction utilization void hearing. damages seeks no
future context, junctive prohibiting consideration of his agree definitively relief we do not repeated- hearings). requested prior a new future void convictions in states, ly Complaint both in his and in appeal, he realizes he is not entitled to enjoining the board from consid- 2. We note that merely seeking he is new prior convictions will the two of his voided avoid the taint Cook's second Cook first time offender. make Complaint (plaintiff any hearings. future indecency charge, which was conviction prospective "requests that issue a in- the Court plea, not been declared nolo based Board, junction Parole State alleges this conviction was void. County two “fatally defective indictment” on the same judicial any proceeding convictions in Cook has not first as the plaintiff unfavorably”); Ap- may affect the void. to declare asked this court pellant's (appellant "knows that he cannot Brief brought have to a claim Such hearing”); Ap- Notice [a] obtain under 28 U.S.C. 2254 as a habeas peal (claiming seek he does not hearing at a time but instead seeks in- definite