Pete Villegas v. Rick Thaler, Director ( 2011 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
May 3, 2011
No. 08-20822 Lyle W. Cayce
Cons. w/ 09-20008 Clerk
PETE JOE VILLEGAS,
Petitioner-Appellant
v.
RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee
Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:07-CV-4483
Before REAVLEY, GARZA, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
Pete Joe Villegas, currently federal prisoner # 20355-179, appeals the
dismissal of his 28 U.S.C. § 2254 petition, wherein he challenged the State’s
revocation of his parole from a 1996 drug conviction. The district court
dismissed the petition after determining that Villegas’s re-release on parole
*
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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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rendered it moot. Because Villegas is still subject to the State’s oversight on
parole, however, we REVERSE.
Villegas was originally released on parole in 2001. Nearly two years later
he was indicted on federal firearms charges, and the State moved to revoke his
parole. Those proceedings were suspended until after Villegas was convicted of
the federal charges in 2005. The State reconvened the revocation proceeding in
early 2006, and Villegas’s parole was revoked based on the federal conviction.
Villegas was then returned to State custody on the revocation sentence. He
unsuccessfully challenged the parole revocation in state habeas proceedings
before filing the instant § 2254 petition. While that petition was pending, the
State again released Villegas on parole. Because of a federal detainer, Villegas
was placed in federal custody due to the firearms conviction. He has a projected
release date in May 2021.
The record shows that although Villegas is now in federal prison, he is
simultaneously still on parole for the state offense. Due to his parole revocation
and the loss of credit for time previously served on parole, see TEX. GOV’T CODE
ANN. § 508.283(c), Villegas’s maximum parole discharge date has been extended
by nearly two years from March 2016 to February 2018.
The district court dismissed the § 2254 petition as moot, reasoning that
because of his release from the revocation sentence, Villegas no longer has a live
case or controversy. We granted a certificate of appealability (COA) on the issue
whether the case is not moot because the parole revocation extended Villegas’s
maximum parole discharge date.
Article III, § 2, of the Constitution requires that litigants continue to have
a personal stake in the outcome of a suit throughout all stages of federal judicial
proceedings. Spencer v. Kemna, 523 U.S. 1, 7, 118 S. Ct. 978, 983 (1998). “This
means that, throughout the litigation, the plaintiff ‘must have suffered, or be
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threatened with, an actual injury traceable to the defendant and likely to be
redressed by a favorable judicial decision.’” Id. (quoting Lewis v. Cont’l Bank
Corp., 494 U.S. 472, 477, 110 S. Ct. 1249, 1253 (1990)). With respect to an
inmate who has been released on parole, the requirement for a live case or
controversy requires the now-released inmate to demonstrate “some concrete
and continuing injury other than the now-ended incarceration or parole–some
‘collateral consequence’ of the conviction[.]” Id. at 7, 118 S. Ct. at 983.
Here, because of the revocation of his parole, Villegas’s maximum parole
discharge date was extended by nearly two years, and his parole supervision
remains in effect despite his re-release from the revocation sentence. The
extension of Villegas’s parole discharge date is a collateral, if not direct,
consequence of the parole revocation. Villegas is therefore unlike the inmate in
Spencer whose challenge to a parole revocation after he had completed the terms
of that revocation was moot. See id. at 14–17, 110 S. Ct. at 986–88.
The State concedes that the extension of Villegas’s maximum parole
release date ordinarily would prevent his challenge from being moot as long as
he continued serving his parole. The State argues, however, that Villegas’s
federal incarceration distinguishes this case and that the federal imprisonment
means that Villegas’s state sentence will never operate against him because the
state sentence will expire before he is released from federal custody. We are
unpersuaded.
There is no dispute that Villegas was released on parole subject to the
federal detainer and that he nonetheless remains subject to the State’s parole
oversight. The State cites no authority showing that the fact that Villegas is
also in federal custody on the federal sentence would diminish the State’s
oversight or preclude the State from seeking to revoke Villegas’s parole should
he violate its terms. See Piper v. Estelle, 485 F.2d 245, 246 (5th Cir. 1973)
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(holding that State was permitted to file parole revocation detainer against
inmate while inmate was serving a federal sentence for conviction obtained after
the state parole); cf. United States v. Skinner, 14 F.3d 52, 1993 WL 560262, at
* 2 (5th Cir. 1993) (“The [federal] Parole Board may, as it did in this case, place
a parole violator warrant on a [state] prisoner as a detainer then wait to execute
the warrant until the prisoner has completed his sentence for any crimes he
committed while on parole.”); see 5TH CIR. R. 47.5.3 (unpublished opinions issued
before January 1, 1996, are precedential). It is well established that the State
and Federal governments are dual sovereigns who may enforce their respective
laws and interests separately. See, e.g., Tafflin v. Levitt, 493 U.S. 455, 458, 110
S. Ct. 792, 795 (1990) (“[U]nder our federal system, the States possess
sovereignty concurrent with that of the Federal Government, subject only to
limitations imposed by the Supremacy Clause.”). Therefore, because Villegas is
subject to state parole oversight for a longer period than if there had been no
revocation, and his parole term has not ended, Villegas’s § 2254 petition
challenging the parole revocation is not moot. We therefore reverse the district
court’s judgment and remand for further proceedings on the merits of Villegas’s
petition.
Villegas argues that the district court erroneously denied him leave to
amend his § 2254 petition. We lack jurisdiction to consider this argument,
however, because it was not included within the scope of the COA. See Carty v.
Thaler, 583 F.3d 244, 266 (5th Cir. 2009).
REVERSED and REMANDED.
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