713 F.3d 264
5th Cir.
2013

Mandell RHODES, Jr., Petitioner-Appellant v. Rick THALER, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.

No. 12-40008.

United States Court of Appeals, Fifth Circuit.

April 3, 2013.

264

tiffs appeal. We review for abuse of discretion. See Fielding v. Hubert Burda Media, Inc., 415 F.3d 419, 428 (5th Cir. 2005). As the party opposing dismissal and requesting discovery, the plaintiffs bear the burden of demonstrating the necessity of discovery. See Freeman v. United States, 556 F.3d 326, 341-42 (5th Cir. 2009). They are “not entitled to jurisdictional discovery if the record shows that the requested discovery is not likely to produce the facts nеeded to withstand a Rule 12(b)(1) motion.” Id. at 342. Moreover, the burden is greater where, as in the present case, “the party seeking discovery is attempting to disprove the applicability of an immunity-derived bar to suit because immunity is intended to shield the defendant from the burdens of defending the suit, including the burdens of discovery.” Id. The plaintiffs have not met this burden. They alleged only that there may be a government policy governing BOLOS, and alleged no well-pleaded facts or evidence to refute the government‘s assertion to the district court that no such policy exists. As such, we cannot conclude that the district court abused its discretion in denying the plaintiffs’ request.

CONCLUSION

For the foregoing reasons, we REVERSE the district court‘s dismissal of Davila‘s FTCA claim against the government arising out of his January 7, 2009 interrogation and arrest (Count 2); AFFIRM the district court‘s dismissal of the plaintiffs’ Fourth Amendment claims against the NPS Rangers arising out of the Big Bend traffic stop (Counts 5 and 6); and AFFIRM the district court‘s dismissal of all four FTCA claims arising out of the Big Bend traffic stop (Counts 7, 9, and 10).

Mandell Rhodes, Jr., Tennessee Colony, TX, pro se.

Craig William Cosper, Assistant Attorney General, Office of the Attorney General, Postconviction Litigation Division, Austin, TX, for Respondent-Appellee.

Before KING, HIGGINBOTHAM, and CLEMENT, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

Under Texas law, a person who serves a month in prison has that month of “calendar time” credited toward his sentеnce. A person who serves a month on parole may likewise earn a month of “[s]treet-time credit,” a form of calendar time which also counts toward a sentence.1 We consider whether, in Texas, a person convicted of aggravated rape who was paroled by mistake is entitled to street-time credit for the period between his release and the revocation of his relеase.

I.

Mandell Rhodes, Jr. was convicted of aggravated rape in 1980. Texas paroled him in 2004,2 but he returned to prison in 2006 after violating a condition of his release. Rhodes claims that he is being denied street-time credit for the two years that he was on parole, credit that he claims “could be used to accelerate his automatic release to mandatory supervision.” ‍​​‌​​​​​‌​‌​‌‌‌​‌​‌‌​​​​​​‌​‌‌‌‌‌‌​‌‌‌​‌​‌​​​‌​​‍According to Rhodеs, Texas law requires that when an inmate is released in error through no fault of his own, he is entitled to be credited with all earned street-time credit upon his return to prison. The denial of such credit, he contеnds, is a denial of due process.

Rhodes sought habeas relief in federal district court.3 The district court denied his petition, for reasons that we will explain. Rhodes obtained a Certificate of Appealability (COA), which grants us jurisdiction to decide this appеal.4 Per the COA, we consider Rhodes‘s argument that his street time should have been restored because he was erroneously released to parole.

II.

Rhodes is in custody pursuant to the judgment of a Texas court. In the usual case, we could grant him federal habeas relief only if he cleared the hurdle of 28 U.S.C. § 2254(d). That provision ordinarily forecloses relief unless a state-court decision “was contrary tо, or involved an unreasonable application of Federal law,” or “was based on an unreasonable determination of the facts in light of the evidence presented in the State Court proceeding.”5 But it is of no moment whether Rhodes could overcome this deferential standard of review, for even were we to review afresh the decision of the district court, Rhodes‘s claim lacks merit.

III.

As rеlevant here, we may grant Rhodes‘s petition only if one of his constitutional rights has been violated.6 He contends that he was deprived of street-time credit without due process, in violation of the Fourtеenth Amendment. Rhodes cannot prevail on this argument unless he has a “liberty interest” in his claimed street-time credit;7 if he does not have a liberty interest in that street-time credit, he was due no more process than he received.8

Whether Rhodes has such a liberty interest turns on Texas state law.9 In 2001, we held in Thompson v. Cockrell that a Texas prisoner had a protected liberty interest in receiving credit for the time between his erroneous release from custody and the revocation of that release.10 We did so based in part on the Texas Court ‍​​‌​​​​​‌​‌​‌‌‌​‌​‌‌​​​​​​‌​‌‌‌‌‌‌​‌‌‌​‌​‌​​​‌​​‍of Criminal Appeals‘s (CCA‘s) decision in Ex parte Morris.11 In Morris, the CCA held that a prisoner was “entitled to be granted credit on his formal sentence for the calendar time when he was at liberty on parole.”12 But as the district court recognized—and Rhodes conceded below—Morris is no longer good law.

In 2003, the CCA expressly overruled Morris (and similar cases) in Ex parte Hale.13 The CCA further explained that “[t]he law that should apply to [a person paroled in error] is the law that governs releasees.”14 Accordingly, to determine whether Rhodes has a liberty interest in the street-time credit he demands, we must evaluate Texas‘s law of releasees.15

We turn to the law in effect when Texas revoked Rhodes‘s release.16 Because revocation occurred in 2006, Texas‘s “street-time credit statute,” TEX. GOV‘T CODE § 508.283, controls.17 Section 508.283(b) provides:

If the parole, mandatory supervision, or conditional pardon of a person described by Section 508.149(a) is revoked, the person may be required to serve the remaining portion of the sentence on which the pеrson was released. The remaining portion is computed without credit for the time from the date of the person‘s release to the date of revocation.18

As emphasized above, § 508.283 excludes from street-time credit those persons described in § 508.149(a).19 According to the CCA, § 508.149(a) encompasses persons—like Rhodes—who have been convicted of aggravated rape.20 Thus, Rhodes cannоt establish a violation of his right to due process because, as a person described by § 508.149(a), he is not entitled to street-time credit.

Rhodes disagrees. Citing § 508.283(b), he contends that Texas ‍​​‌​​​​​‌​‌​‌‌‌​‌​‌‌​​​​​​‌​‌‌‌‌‌‌​‌‌‌​‌​‌​​​‌​​‍may not forfeit his earnеd street-time credit unless he was actually paroled. Rhodes was not lawfully on parole, he argues, because he never signed a valid parole contract. However, in light of Hale‘s direction that persons paroled in error be treatеd as though they were releasees for purposes of § 508.283, this argument lacks force.21

*

*

*

Rhodes is entitled to federal habeas relief only if he was deprived of street-time credit without due process. Bеcause he had no protected liberty interest in the street-time credit that he claims to have accrued, his due-process right was not violated. We therefore AFFIRM the district court‘s denial of his habeas petition.22

PATRICK E. HIGGINBOTHAM

UNITED STATES CIRCUIT JUDGE

Notes

1
Ex parte Spann, 132 S.W.3d 390, 392 n. 2 (Tex. Crim. App. 2004) (“Street-time credit refеrs to calendar time a person receives towards his sentence for days spent on parole or mandatory supervision.“).
2
As the district court noted, “Rhodes contended that his release on рarole was in error because he had been convicted of aggravated rape and thus could only be released by an ‘extraordinary full board vote,’ rather than the vote of a panel. He stated that for inmates convicted of aggravated rape, two-thirds of the full board, or five of the seven board members, had to vote in favor of release, but his case was heard by a three-mеmber panel, two of whom voted for release.”
3
The government concedes that Rhodes exhausted state remedies.
5
28 U.S.C. § 2254(d).
6
See id. § 2241; Thompson, 263 F.3d at 425.
8
See Ky. Dep‘t of Corr., 490 U.S. at 460 (“[A]n individuаl claiming a protected [liberty] interest must have a legitimate claim of entitlement to it.“); but cf. Teague v. Quarterman, 482 F.3d 769, 776 (5th Cir. 2007) (holding that an “addendum to Texas‘s mandatory supervision scheme, with its narrowly limited modicum of discretion, [does not] dеprive all inmates of their constitutional expectancy of early release“).
9
See Ky. Dep‘t of Corr., 490 U.S. at 460 (explaining that liberty interests may arise from ‍​​‌​​​​​‌​‌​‌‌‌​‌​‌‌​​​​​​‌​‌‌‌‌‌‌​‌‌‌​‌​‌​​​‌​​‍the Due Process Clause or from state law); Thompson, 263 F.3d at 426 (holding that the Clause does not create a liberty interest in calendar-time credit).
15
Thompson notwithstanding, our rule of orderliness does not prevent this inquiry. See Jacobs v. Nat‘l Drug Intelligence Ctr., 548 F.3d 375, 378 (5th Cir. 2008) (“It is a well-settled Fifth Circuit rule of orderliness that one panel of our court may not ovеrturn another panel‘s decision, absent an intervening change in the law, such as by a statutory amendment, or the Supreme Court, or our en banc court.” (emphasis added)); cf. Farnham v. Bristow Helicopters, Inc., 776 F.2d 535, 537 (5th Cir. 1985) (“A panel of this court cannot ‘overturn’ the decision of another panel. In diversity cases, however, we are to follow subsequent state court decisions that are clearly contrary to a previous decision of this cоurt.“).
16
See Ex parte Hernandez, 275 S.W.3d 895, 897 (Tex. Crim. App. 2009) (evaluating the law in effect at the time of parole revocation).
17
Ex parte Noyola, 215 S.W.3d 862, 864 (Tex. Crim. App. 2007) (explaining that the statute “applies to all revocations of parole that occur on or after September 1, 2001“).
18
TEX. GOV‘T CODE § 508.283(b) (emphasis added).
19
See id. § 508.283(c).
20
See Ex parte Ervin, 187 S.W.3d 386, 387-89 (Tex. Crim. App. 2005). Section 508.149(a) describes several types of offenders, including those “serving a sentence for or ... previously convicted of ... a felony under Section 22.011 ... [or] a first degree felony under Section 22.021” of the Texas Penal Code. TEX. GOV‘T CODE § 508.149(a)(6), (8). Ervin held that § 508.149(a) “includes the predecessors to the enumerated offenses” listed therein. 187 S.W.3d at 389. Section 21.09 is a predecessor of Sections 22.011 and 22.021 of the Penal Code. Id. at 388. Thus, § 508.149(a) includes violations of the now-repealed § 21.09 of the Penal Code, under which Rhodes was convicted. The Ervin court did not indicate that only certain types of felonies under § 21.09 were included under § 508.149(a), and Rhodes dоes not contend that we should so limit ‍​​‌​​​​​‌​‌​‌‌‌​‌​‌‌​​​​​​‌​‌‌‌‌‌‌​‌‌‌​‌​‌​​​‌​​‍its reach. In any event, the CCA expressed that it “[could not] believe that the legislature intended” to omit aggravated rape from the scope of § 508.149(a). Id.
21
We therefore need not decide (1) whether Rhodes‘s petition was timely filed; (2) whether he is eligible for mandatory release; or (3) whether he was actually released in error.
22
This is not a case in which a person released in error was returned to custody before violating a condition of that release. Cf. Ex parte Rowe, 277 S.W.3d 18, 18-19 (Tex. Crim. App. 2009) (per curiam) (holding that person who was “erroneously released from custody through no fault of his own,” and “violated no laws nor any terms of release that would have applied to him had he been properly” paroled, was entitled to street-time credit).
Read the detailed case summary