Vineyard v. Keesee ( 1995 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
__________________________
No. 95-10132
(Summary Calendar)
___________________________
JOHN OTIS VINEYARD,
Petitioner-Appellant,
versus
D. L. “SONNY” KEESEE, ET AL.,
Respondents-Appellees.
____________________________________________
Appeal from the United Sates District Court
for the Northern District of Texas
(5:94-CV-49-C)
____________________________________________
(October 18, 1995)
Before GARWOOD, WIENER and PARKER, Circuit Judges.
PER CURIAM:1
Petitioner-Appellant John Otis Vineyard (“Vineyard”) appeals
the district court’s dismissal of his habeas corpus petition filed
pursuant to 28 U.S.C. § 2241 and 2254 against D. L. “Sonny” Keesee;
the Attorney General of Texas; and Wayne Scott, the Director of the
Texas Department of Criminal Justice--Institutional Division (“the
State” or “Respondents”). On appeal Vineyard raises issues
1
Local Rule 47.5 provides: “The publication of opinions that
have no precedential value and merely decide particular cases on
the basis of well-settled principles of law imposes needless
expense on the public and burdens on the legal profession.”
Pursuant to that Rule, the Court has determined that this opinion
should not be published.
implicating the Ex Post Facto Clause and the Due Process Clause of
the United States Constitution, as well as the district court’s
failure to hold an evidentiary hearing and denial of discovery.
Vineyard has also filed motions for appointment of counsel and
class certification.
I
FACTS AND PROCEEDINGS
Vineyard was found guilty by a state jury of the felony
offense of aggravated robbery and received a 25-year term of
incarceration. His sentence and conviction were affirmed on direct
appeal. Vineyard, having filed numerous state applications for
habeas relief, all of which were denied either without written
order or without a hearing, has exhausted state remedies.
In the instant federal habeas petition, Vineyard raised
fourteen allegations challenging the Texas parole statutes, his
parole status, and the revocation of his parole. Respondents
answered and moved for summary judgment, after which Vineyard filed
an opposition and his own motion for summary judgment. The
magistrate judge recommended dismissal of Vineyard’s petition with
prejudice. Vineyard filed objections which the district court
overruled when it adopted the magistrate judge’s recommendation.
Final judgment was entered accordingly. Vineyard timely filed a
notice of appeal, requesting a certificate of probable cause (CPC)
which the district court denied. Vineyard appealed.
II
ANALYSIS
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a. Certificate of probable cause
The State takes the position that a CPC is necessary. It is
not. Vineyard’s petition deals with parole revocation procedures
and issues, not with his original conviction. The issuance of a
CPC is required to take an appeal from a final order in a habeas
corpus proceeding only when “the detention complained of arises out
of process issued by a State Court.” See 28 U.S.C. § 2253. A CPC
is not needed to provide appellate jurisdiction here, as Vineyard’s
present detention does not arise out of process issued by a state
court. Vineyard is not contesting the legality of his conviction
or the validity of his initial sentence. Rather he is contesting
the manner in which his sentence is being executed by the Texas
Department of Criminal Justice, Pardons and Paroles Division, which
claim arises under 18 U.S.C. § 2241. United States v. Gabor, 905
F.2d 76, 77-78 (5th Cir. 1990).
b. Condition of parole as ex post facto violation.
Vineyard contended in the district court that he was subjected
to a number of conditions of parole that amount to ex post facto
violations; specifically, electronic monitoring, urinalysis,
driving restrictions, curfew, and the forced payment of fees. If
a legislative change alters the definition of criminal conduct or
increases the penalty by which a crime is punishable it violates
the ex post facto prohibition. Collins v. Youngblood, 497 U.S. 37,
41 (1990). Our analysis here must focus on whether the change in
Texas parole laws increased the penalty by which Vineyard’s crime
could be punished. A statute may be impermissibly retrospective,
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“even if it alters punitive conditions outside the sentence
itself.” Weaver v. Graham, 450 U.S. 24, 32 (1981). A condition of
parole could be construed as a punitive condition--that is, as a
“legal consequence” attaching to the commission of a crime--in two
different respects. First, a condition of parole could affect the
length of sentence if the condition was so onerous that it was
effectively impossible to meet. Murray v. Phelps, No. 88-3302 (5th
Cir. Feb. 3, 1989)(unpublished, reprinted as Appendix to Sheppard
v. La. Bd. of Parole, 873 F.2d 761, 764 (5th Cir. 1989)). Second,
because the Ex Post Facto Clause does not apply only to sentence
length, but to any punishment, a monetary payment--whether labeled
as payment of supervision costs, as restitution, or as a fine--that
flows from the commission of the underlying crime, rather than from
some subsequent act of the parolee, could be construed as a part of
the punishment of that crime because the payment is a condition of
the parolee’s continued release from prison. Id. Few parole
conditions other than required fees or payments would be
susceptible to this analysis. Id. At 764, n.4. Conditions
regulating the parolee’s conduct are analogous to recidivist
statutes which have not been found to violate the Ex Post Facto
clause. See id. Both habitual offender statutes and legislation
prohibiting previously convicted felons from undertaking certain
activities have withstood ex post facto scrutiny. See DeVeau v.
Braisted, 363 U.S. 144, 160 (1960) (law prohibiting previously
convicted felons from participating in waterfront labor unions not
ex post facto increase in punishment); McDonald v. Massachusetts,
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180 U.S. 311 (1901) (laws creating aggravated penalties for
recidivist criminal activity not ex post facto even though
predicate offense predates statute); United States v. Sutton, 521
F.2d 1385, 1390-91 (7th Cir. 1975) (Congress constitutionally
allowed to restrict criminals whose felonies occurred in the past
from receiving firearms.)
The electronic monitoring, urinalysis, driving restrictions,
and curfew in question are neither so onerous that they are
effectively impossible to meet, nor are they a monetary payment.
No ex post facto violations have occurred with regard to these
conditions.
Although Vineyard lists “payment of fees” along with other
allegedly unconstitutional conditions of parole, there is no
genuine issue of material fact concerning his parole fees claim.
The evidence in the record conclusively shows that nonpayment of
fees was not alleged or considered as a factor meriting parole
revocation. In fact, the record is devoid of evidence that
Vineyard ever paid fees related to his parole, and, if so, pursuant
to what authority. Even Vineyard’s pleadings are unclear
concerning which fees he contends were imposed on him in violation
of the ex post facto prohibition. Vineyard may have been required
to pay a monthly parole supervision fee pursuant to art. 42.18(j).
However, such payments can be deferred at a parolee’s request, and
inability to pay is an affirmative defense to revocation. It is
not apparant from the record if Vineyard ever payed supervision
fees. It is therefore unnecessary and, for that matter, impossible
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for the Court to determine if these unspecified fees were
unconstitutional as Vineyard claims.
C. Parole release versus certificate of discharge
Vineyard argues that an ex post facto violation occurred when
he was given a “parole release” rather than a certificate of
discharge, to which he insists he was entitled. He contends that
a Texas statutory amendment negatively affected the use of good
time credits regarding release from prison. This position is
foreclosed by unpublished Fifth Circuit precedent, which holds,
“[a]n amendment to a state’s parole eligibility procedure is not an
ex post facto law.” In re Downs, No 95-50282, slip op. at 2 (5th
Cir. June 1995) (unpublished) (copy attached), citing California
Dep’t of Corrections v. Morales, 115 S. Ct. 1597, 1599 (1995). In
that case, Downs sought leave to proceed in forma pauperis (IFP) in
an appeal attacking an unspecified “change in the way that Texas
prisoners accrue good time.” Downs, slip op. at 2. This Court
summarily denied IFP and dismissed his appeal as frivolous,
focusing instead on the imposition of sanctions against Downs for
a death threat against the district judge. The apparent broadness
with which we stated the rule is belied both by the narrow
circumstances presented by Downs, and by the Supreme Court’s
opinion in Morales, on which Downs relied. However, we must save
the question of the breadth of Downs in light of Morales for
another day, because Vineyard’s claims fails on independent grounds
of statutory construction.
The prior Texas statute, on which Vineyard relies, provided
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that good time earned could be counted to reduce the length of time
an inmate had to serve. See TEX. CODE CRIM. PROC. ANN. art. 42.12 §
23 (Vernon 1979) (repealed). In 1977, before Vineyard committed
his crime, the legislature amended the parole statute to provide
for release on mandatory supervision when an inmate’s calendar time
and good time equaled his maximum sentence. Acts 1977, 65th Leg.,
ch. 347 § 1. Release on mandatory supervision was a form of
parole, requiring the releasee to report to a parole officer and to
abide by certain conditions of release. By not repealing § 23,
however, the legislature created a conflict between the practices
of discharging a sentence and mandatory supervision. In such a
situation, rules of statutory construction require that the latest
enacted statute prevail over the one passed first. TEX. GOV. CODE
ANN. § 311.025(a) (Vernon 1988). In addition it must be presumed
that the legislature intended to give effect to the practice of
mandatory supervision when it created it. Id. § 311.021. Thus, the
provisions relating to mandatory supervision take precedence over
§ 23's allowance of a full discharge of a sentence.2
D. Due process
Vineyard next contends that he was denied due process in
connection with his parole revocation hearing. The minimum
requirements of procedural due process for revocation hearings
The inconsistency was corrected in 1985, when the legislature
formally ended the practice of discharging a sentence. See Acts
1985, 69th Leg., ch. 239 § 80(a). The repealing act provided that
it did not apply to inmates who had less than twelve months
remaining before being eligible for a discharge certificate.
Vineyard has neither contended nor shown that he met this
criterion.
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include: 1) written notice of the claimed violations of parole; 2)
the disclosure to the parolee of evidence against him; 3) the
opportunity to be heard in person and to present witnesses and
documentary evidence; 4) the qualified right to confront and cross-
examine adverse witnesses; 5) a neutral and detached hearing body;
and 6) a written statement by the fact finders as to the evidence
relied on and reasons for revoking parole. Morrissey v. Brewer, 408
U.S. 471, 489 (1972).
An admission of a violation waives the Morrissey protections,
provided that the violation is a “possible ground[] for revoking
parole under state standards.” Id. at 490; United States v.
Holland, 850 F.2d 1048, 1050-51 (5th Cir. 1988) (probation
violation). In addition, a parolee “who admits the allegations
against him must still be given an opportunity to offer mitigating
evidence suggesting that the violation does not warrant
revocation.” Holland, 850 F.2d at 1051.
A “Report of Violation” dated September 2, 1993, indicates
that Vineyard admitted (1) violating electronic monitoring twice,
and (2) drinking alcoholic beverages. Subsequently, at his
preliminary revocation hearing, Vineyard denied the violations that
he had previously admitted, but admitted violating the rule that
prohibited driving without permission. An attorney work sheet
indicates that when interviewed on September 23, 1993, Vineyard
denied committing various violations but that he “had already
admitted to these” violations on September 2, 1993.
Vineyard’s certificate of parole specifically states that he
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must have the Board’s “written permission to drive,” and that any
violation of the conditions of parole “shall be sufficient cause
for revocation.” The record of Vineyard’s parole revocation
proceedings indicates that he was given the opportunity to offer
mitigating evidence but did not do so. Vineyard has clearly waived
any due process violations.
d. Evidentiary hearing; discovery
Vineyard also contends that the district court erred by not
conducting an evidentiary hearing nor permitting discovery.. He
does not specifically allege what discovery or an evidentiary
hearing would have revealed.
An evidentiary hearing was not necessary here because the
record before the district court was adequate for a disposition of
the case. See Joseph v. Butler, 838 F.2d 786, 788 (5th Cir. 1988)
(§ 2254 case). Neither was discovery required. Little authority
exists regarding the ambit of, and procedure for, discovery in §
2241 cases. The Federal Rules of Civil Procedure are not normally
applicable to § 2241 proceedings, but 28 U.S.C. § 2246 authorizes
interrogatories in limited circumstances. A district court, when
presented with a § 2241 petition that establishes a prima facie
case for relief, “may use or authorize the use of suitable
discovery procedures, including interrogatories, reasonably
fashioned to elicit facts necessary to help the court to dispose of
the matter.” Harris v. Nelson, 394 U.S. 286, 290 (1969) (internal
quotation omitted) (citing 28 U.S.C. § 2243); see also Hernandez v.
Garrison, 916 F.2d 291, 293 (5th Cir. 1990) (rules of pretrial
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discovery are not applicable to habeas corpus proceedings unless
necessary to help the court dispose of the matter as law and
justice require).
In § 2254 proceedings, district court have the discretion to
permit discovery on a showing of good cause under Rule 6 of the §
2254 Rules. Still, conclusional allegations are not enough to
warrant discovery under Rule 6; a petitioner must set forth
specific allegations of fact. Id; see also Willie v. Maggio, 737
F.2d 1372, 1395 (5th Cir.), cert. denied, 469 U.S. 1002 (1984).
Vineyard has not shown the existence of specific factual
disputes warranting discovery.. He has not presented a petition
that establishes a prima facie case for relief; neither has shown
that discovery is required to dispose of the matter as law and
justice require.
e. Appointment of counsel; class certification
Vineyard also requests, without stating why or offering
specific support, the appointment of counsel and class
certification. He made similar requests in the district court,
both of which were denied. Claims such as these, which are not
adequately argued in the body of a brief, are deemed abandoned on
appeal. See Brinkmann v. Dallas County Sheriff Abner, 813 F.2d
744, 748 (5th Cir. 1987). To the extent he is seeking the
appointment of counsel on appeal, he has not demonstrated that his
appeal presents exceptional circumstances warranting such an
appointment. See Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir.
1982) (§ 1983 case).
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III
CONCLUSION
Based on the foregoing, the district court’s judgment is
affirmed, and Vineyard’s motions for appointment of counsel and
class certification are denied.
AFFIRMED. MOTIONS DENIED.
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