* Pursuant to 5 TH C IR . R. 47.5, the court has determ ined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5 TH C IR . R. 47.5.4. United States Court of Appeals Fifth Circuit 

## FILED June 6, 2006 Charles R. Fulbruge III Clerk IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-50063 Summary Calendar WILSON E. BROWN, Peti tionerAppellant,
versus DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION, RespondentAppellee.

------------------------------------------------------------------ Appeal from the United States District Court fo r the Western District of Texas (03-CV-363)

------------------------------------------------------------------ Before BARKSDALE, STEWART and CLEMENT, Circuit Judges. PER CURIAM: * Wilso n E. Brown, Texas pri soner # 519699, has filed an application fo r a certi ficat e of appealability (COA) to appeal the district court’s dismissal of his sty led 42 U.S.C. § 1983 civil rights action asserting unconstitutionality of procedures applied by the Texas Board of Pardons and Paroles (the board) to deny him parole in 2001, relative to his conviction of aggravated sexual assault. The-2-

district court construed Brown’s action as a habeas corpus peti tion and held that relief was barred by t he statute of limitations, 28 U.S.C. § 2244(d). The district court was correct in holding that Brown’s claim that the board used erroneous
or inaccurate info rmation to deny him parole aft er a single defective hearing is a habeas corpus claim that is ti me-barred, rather than a §1983 claim. S ee Serio v. Members, La. State Bd. of Pardons , 821 F.3d 1112, 1117-18 (5th Cir. 1987). Therefore Brown’s application for a COA relative to this claim is DENIED. Brown also contends that he is entitled to relief because the board retroacti vely applied 1995 procedures in denying him par ol e. He argues that thi s vio lat ed his civil right s under the Ex Post Facto, Due Process, and Equal Protection Clauses. Brown is not entitled to relief under the Due Process Clause because Texas has not created a libe rty int erest i n parole that is protected by this clause. See Orellana v. Kyle , 65 F.3d 29, 32 (5th Cir. 1995). Furthermore, Brown failed to state a cognizable equal-protection claim because he did not show that sex offenders are a suspect class or that they have been denied a fundamental right. See Rublee v. Fleming , 160 F.3d 213, 217 (5th Cir. 1998). Also , subjecting such offenders to different parole procedures is reasonably related to legit imat e penological int erests. S ee, e.g., Finley v. Staton , 542 F.2d 250, 250 (5th Cir. 1976). Accordingly, Brown is not entitled to § 1983 relief on this claim. Wit hout specifically adverting to Brown’s ex post f acto claim, the defendants have asserted that he is not entitled to relief because a Texas inmat e has no libert y int erest in obtai ning parole. The district court di smissed the action as ti me-barred wit hout discussing Brown’s constitutional claims. However, “[a] law need not impair a vested right to vio lat e the Ex Post Facto prohibition.” Orellana , 65 F.3d at 32 (citing Weaver v. Graham , 450 U.S. 24, 29-30 (1981)). “‘The presence or absence of-3-

an affirmat ive, enforceable right is not relevant’” t o th e viabilit y o f an ex post facto claim. I d
. (quoti ng Weaver , 450 U.S. at 30). The Supreme Court recently he ld t hat a prisoner can maint ain a § 1983 claim seeking to invalidat e state parole procedures, and that Heck v. Humphrey , 512 U.S. 477 ( 1994), i s not an impediment to such a claim. Wilkinson v. Dotson , 544 U.S. 74, 125 S. Ct. 1242, 1246-49 (2005). The Court reasoned that “[s]uccess fo r Dotson
. . . means at mo st new eligibilit y review, which at
mo st will speed consideration of a new parole application.” I d
. at 1248. Thus it appears that the district court erred by not treating Brown’s parole-procedure claim as a § 1983 claim. Brown’s ex post f

acto claim wo uld not be untimely under Texas’s two-year rule fo r § 1983 claims. C ooper v. Brookshire , 70 F.3d 377, 380 n.20 (5th Cir. 1995); see T EX . C IV . P RAC . & REM . C ODE A NN . § 16.003(a) (Vernon). Therefore, the judgment is VACATED in part, and the case is REMANDED fo r the district court to address Brown’s ex post facto claim as a § 1983 allegation, pursuant to Wilkinson . As to thi s claim, COA is DENIED as unnecessary.