IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 09-10967

THOMAS MICHAEL WIGGINS,

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 Northern District of Texas

USDC No. 3:08-cv-02090-K

Before JONES, Chief Judge, and KING and BARKSDALE, Circuit Judges.

PER CURIAM:

*

Proceeding pro se, Thomas Michael Wiggins, former Texas prisoner

# 464921, now on mandatory supervision, challenges the denial of federal habeas

relief. Of the four issues for which Wiggins requested a certificate of

appealability (COA), our court granted it for two: whether his claims regarding

the December 2005 revocation of his mandatory supervision are not moot

because, in order to pursue an action for damages under 42 U.S.C. § 1983 related

United States Court of Appeals

Fifth Circuit

F I L E D

June 16, 2011

Lyle W. Cayce

Clerk

 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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to that revocation, he must first obtain a favorable outcome in habeas

proceedings; and whether he was improperly denied credit for the time spent in

confinement in August 2005, prior to that revocation. AFFIRMED.

I.

In October 2003, Wiggins was released on mandatory supervision, in

Nebraska, from Texas Department of Criminal Justice (TDCJ) custody. On 2

August 2005, Nebraska parole officials placed him in custody pursuant to a

complaint that he had sexually assaulted a co-worker; however, because that

person refused to testify, parole officials could not conduct a probable-cause

hearing, no charges were filed, and Wiggins was released on 31 August.

That September, however, Nebraska parole officials conducted a probablecause hearing on an alleged violation of an electronic-monitoring rule and found

probable cause that Wiggins had violated a condition of his parole. That

October, Nebraska officials requested the Texas Board of Pardons and Paroles

return Wiggins to Texas as a parole violator, and TDCJ issued a pre-revocation

warrant for his arrest. That November, Wiggins was taken into custody and

returned to TDCJ as a mandatory-supervision violator. That December, the

Board revoked his mandatory supervision.

In July 2006, Wiggins applied to TDCJ for a time-credit-dispute resolution.

TDCJ did not respond until May 2007.

Earlier, that March, Wiggins applied for habeas relief in Texas state court,

asserting, inter alia: his due-process rights were denied at his mandatorysupervision revocation proceeding because he was denied counsel and because

there was insufficient evidence for the revocation; and he was denied credit for

the approximate one-month confinement in Nebraska in 2005. The state trial

court entered findings of fact and conclusions of law and recommended that

relief be denied because: the mandatory supervision had not been improperly

revoked; the time-credits had been properly calculated; and constitutional rights

had not been denied. Ex parte Wiggins, No. W86-77710-QL(C) (Tex. Crim. D. Ct.

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No. 5, Dallas Cnty. 4 Aug. 2008). The Texas Court of Criminal Appeals denied

Wiggins’ application without written order and without hearing, based on the

findings of the state trial court. Ex parte Wiggins, No. WR-27, 103-04 (Tex.

Crim. App. 1 Oct. 2008).

Wiggins applied for federal habeas relief, pursuant to 28 U.S.C. § 2254,

presenting the same claims as in state court. Subsequently, in January 2009,

he was again released on mandatory supervision.

That April, Wiggins’ federal habeas application was referred to a

magistrate judge for report and recommendation. The magistrate judge

recommended, inter alia: Wiggins’ claims related to the mandatory-supervision

revocation in 2005 were rendered moot by his being re-released in 2009 on such

supervision; and Wiggins was not entitled to relief on his claim for credit for time

spent in confinement in Nebraska in August 2005, prior to the December 2005

revocation, because, although Texas law entitles parolees to credit for time spent

in custody on pre-revocation warrants, the record did not demonstrate that a

pre-revocation warrant had been issued in Texas until October 2005. Wiggins

v. Quarterman, No. 3:08-cv-2090-K-BH (N.D. Tex. 21 Aug. 2009). Wiggins did

not file objections to those recommendations.

The district court adopted the report and recommendation, dismissed as

moot Wiggins’ claims for relief regarding the mandatory-supervision revocation,

and otherwise denied, with prejudice, Wiggins’ request for relief. Wiggins v.

Quarterman, No. 3:08-cv-2090-K, 2009 WL 2981916, at *6 (N.D. Tex. 15 Sept.

2009).

The district court denied Wiggins’ request for a COA. Our court granted

him a COA on the two above-stated issues: whether his claims regarding the

validity of his revocation were not moot because, in order to pursue an action for

damages under 42 U.S.C. § 1983 related to revocation, he must first obtain a

favorable outcome in habeas proceedings; and whether he was improperly denied

credit for the time spent in confinement in August 2005.

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II.

Generally, the district court’s findings of fact are reviewed for clear error;

its conclusions of law, de novo. E.g., Propes v. Quarterman, 573 F.3d 225, 227

(5th Cir. 2009), cert. denied, 130 S. Ct. 3272 (2010). It is arguable that plainerror review instead applies because Wiggins did not submit objections to the

magistrate judge’s report and recommendation. See, e.g., Douglass v. United

Servs. Auto. Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc). Cutting against

applying that limited review is the district court’s arguably engaging in de novo

review. It is not necessary to decide whether our review is only for plain error

because Wiggins’ claims fail under the more liberal standard of review.

Under the Antiterrorism and Effective Death Penalty Act of 1996

(AEDPA), Pub. L. No. 104-132, 110 Stat. 1214, a federal court may not grant

habeas relief to a state prisoner on a claim adjudicated on the merits by the state

court unless the state-court decision was: (1) “contrary to, or involved an

unreasonable application of, clearly established Federal law, as determined by

the Supreme Court of the United States”; or (2) “was based on an unreasonable

determination of the facts in light of the evidence presented in the State court

proceeding”. 28 U.S.C. § 2254(d); see, e.g., Pierce v. Thaler, 604 F.3d 197, 200

(5th Cir. 2010). “Under AEDPA, a state court’s factual findings are ‘presumed

to be correct’ unless the habeas petitioner rebuts the presumption through ‘clear

and convincing evidence.’” Nelson v. Quarterman, 472 F.3d 287, 292 (5th Cir.

2006) (quoting 28 U.S.C. § 2254(e)(1)). “Because a federal habeas court only

reviews the reasonableness of the state court’s ultimate decision, the AEDPA

inquiry is not altered when, as in this case, state habeas relief is denied without

an opinion.” Schaetzle v. Cockrell, 343 F.3d 440, 443 (5th Cir. 2003) (citing

Santellan v. Cockrell, 271 F.3d 190, 193 (5th Cir. 2001)).

A.

The district court ruled that, because Wiggins had been re-released in

2009 on mandatory supervision, his claims for constitutional violations occurring

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during his revocation proceedings in 2005 are moot. Wiggins contends those

claims are not moot because a favorable outcome in habeas proceedings is

required for pursuing damages, arising from the revocation, under 42 U.S.C.

§ 1983. See, e.g., Heck v. Humphrey, 512 U.S. 477, 486-87 (1994); DeLeon v. City

of Corpus Christi, 488 F.3d 649, 654 (5th Cir. 2007).

For an action in federal court, Article III of the Constitution requires a

case or controversy. That Wiggins may need to obtain a favorable habeas

decision establishing the invalidity of his mandatory-supervision revocation

before pursuing a separate action is insufficient to maintain the requisite case

or controversy. E.g., Spencer v. Kemna, 523 U.S. 1, 7 (1998); United States v.

Clark, 193 F.3d 845, 847-48 (5th Cir. 1999).

B.

The district court denied Wiggins credit against his sentence for the time

spent confined in Nebraska in August 2005, prior to revocation of his mandatory

supervision. Wiggins maintains he has a protected liberty interest, created by

state law, in pre-revocation detention credits, relying on Ex parte Canada, 754

S.W.2d 660, 668 (Tex. Crim. App. 1988), which held that “any time spent in

confinement pursuant to the execution of a pre-revocation warrant cannot be

denied a parolee”.

Even if Wiggins has a liberty interest in such credits, he has not shown

that the confinement in Nebraska was “pursuant to the execution of a prerevocation warrant”. In other words, Wiggins has not shown clear error in the

district court’s factual finding that he was not confined pursuant to execution of

a pre-revocation warrant issued under Texas law, see Propes, 573 F.3d at 227,

nor has he rebutted the presumption of correctness accorded the state court’s

factual findings that his time credits had been properly calculated, see Nelson,

472 F.3d at 292. Further, to the extent Wiggins seeks relief based on a claim

that state law was misapplied in the light of Canada, federal habeas relief is

unavailable. E.g., Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (“[F]ederal habeas

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corpus relief does not lie for errors of state law . . . .”) (citations omitted).

Accordingly, Wiggins has not shown that the state-court decision denying him

habeas relief was: (1) “contrary to, or involved an unreasonable application of,

clearly established Federal law, as determined by the Supreme Court of the

United States”; or (2) “was based on an unreasonable determination of the facts

in light of the evidence presented in the State court proceeding”. See 28 U.S.C.

§ 2254(d).

C.

Wiggins also seeks relief on due-process claims that are outside the scope

of his COA. Our court lacks jurisdiction to consider them. E.g., Carty v. Thaler,

583 F.3d 244, 266 (5th Cir. 2009); United States v. White, 307 F.3d 336, 339 n.1

(5th Cir. 2002).

III.

For the foregoing reasons, the judgment is AFFIRMED.

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KING, Circuit Judge, concurring:

I concur in the majority’s good opinion, though with misgivings because

this case is simply not moot. Wiggins suffered, and will continue to suffer until

his sentence expires, an actual injury as a result of the revocation proceeding

because his maximum discharge date was extended by two years after his

mandatory supervision was revoked. This injury is sufficient to create a live

case or controversy. However, the certificate of appealability (COA) that was

granted in this case is very limited, and we lack jurisdiction to consider the

issue.

When Wiggins was released on mandatory supervision on October 15,

2003, his maximum discharge date (the date on which he would be released from

supervision) was set for February 20, 2013. Upon revocation of his mandatory

supervision, Wiggins lost any credit against his sentence that he earned while

on supervision. See Tex. Gov’t Code Ann. § 508.283(c). Although the magistrate

judge specifically found that the revocation of mandatory supervision “has had

no impact on petitioner’s maximum discharge date,” the record reveals that this

date was extended by two years and seventeen days, to March 10, 2015,

following the revocation of Wiggins’s supervision.

In his request for a COA from this court, Wiggins did not contest the

magistrate judge’s finding that the revocation had no impact on his maximum

discharge date, nor did Wiggins argue that his claims were not moot because his

discharge date had been extended. Instead, Wiggins requested, and this court

1

granted, a COA on the limited issue of whether Wiggins’s “habeas claims

pertaining to the revocation of his mandatory supervision are not moot because,

in order to pursue an action for damages under 42 U.S.C. § 1983 related to the

Wiggins argued that his claims were not moot because the revocation had caused the 1

forfeiture of good time credits, but he conceded that the credits did not impact his maximum

discharge date.

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revocation, he must first obtain a favorable outcome in habeas proceedings.”

While I agree with the court’s conclusion that Wiggins’s need for a favorable

ruling is insufficient to create a live case or controversy, this case is nonetheless

not moot, albeit for a different reason.

A habeas petitioner must demonstrate that he suffers continuing collateral

consequences from the revocation of his parole in order keep his habeas claims

related to the revocation from being declared moot. Spencer v. Kemna, 523 U.S.

1, 7–8 (1998). Unlike the petitioner in Spencer, whose sentence had expired

after he filed his petition, Wiggins remains “in the legal custody of the State”

while on mandatory supervision. Ex parte Canada, 754 S.W.2d 660, 663 (Tex.

Crim. App. 1988). His loss of sentence credit as a result of the revocation means

that Wiggins will be in legal custody and subject to the requirements of

mandatory supervision for an additional two years. Wiggins thus suffers a

continuing consequence of his revocation by the extension of his maximum

discharge date.

This court has previously held, in two unpublished decisions, that the

extension of a habeas petitioner’s parole discharge date is sufficient to create a

live case or controversy for claims related to revocation proceedings,

notwithstanding the petitioner’s subsequent re-release on parole. See Villegas

v. Thaler, No. 08-20822, 2011 U.S. App. LEXIS 9096, at *3–4 (5th Cir. May 3,

2011) (“The extension of [the petitioner’s] parole discharge date is a collateral,

if not direct, consequence of the parole revocation.”); Tolley v. Johnson, 228 F.3d

410 (5th Cir. 2000) (table case) (“The extension of [the petitioner’s] parole release

date . . . is a consequence of his parole revocation, collateral if not direct.”). In

Villegas, the state even “concede[d] that the extension of [a habeas petitioner’s]

parole discharge date ordinarily would prevent his challenge from being moot as

long as he continued serving his parole.” Villegas, 2011 U.S. App. LEXIS 9096,

at *4. Given that it conceded this point in Villegas, I am dismayed that the state

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acquiesced in the magistrate judge’s sua sponte conclusion that this case was

moot.

Unfortunately, our jurisdiction is limited by the COA. See Carty v. Thaler,

583 F.3d 244, 266 (5th Cir. 2009). We may expand the scope of the COA in

certain circumstances, but only if one of the parties specifically requests that we

do so. See United States v. Kimler, 150 F.3d 429, 430–31 (5th Cir. 1998).

Neither party has requested that we expand the COA in this case, and Wiggins

did not even brief the issue related to the extension of his maximum discharge

date. Therefore, we lack jurisdiction to declare this case not moot, even though

it clearly is not. For this reason, I join the court’s opinion affirming the district

court’s dismissal of Wiggins’s claims as moot.

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