IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 95-50433

Summary Calendar

 

KENDALL M. ALLISON,

Plaintiff-Appellant,

versus

JACK KYLE, Chairman, Board of Pardons and Paroles;

MELINDA BOZARTH, Division Director, Texas Board

of Pardons and Paroles,

Defendants-Appellees.

 

Appeal from the United States District Court for the

Western District of Texas

 

(September 21, 1995)

Before GARWOOD, WIENER, and PARKER, Circuit Judges.

PER CURIAM:

Plaintiff-appellant Kendall M. Allison (Allison), a Texas

state prisoner proceeding pro se and in forma pauperis (IFP), filed

this civil rights suit pursuant to 42 U.S.C. § 1983 against Jack

Kyle, Chairman, Texas Board of Pardons and Paroles, and Melinda

Bozarth, Division Director, Texas Board of Pardons and Paroles.

Allison alleged that application of the 1987 and 1992 parole review

procedures violated the Due Process Clause and that the change in

rules governing the scheduling of parole reconsideration hearings
2

violated the Ex Post Facto Clause. Allison sought a declaratory

judgment stating that he was being denied due process and an

injunction ordering the defendants to review him for parole

annually. He did not seek damages. A magistrate judge recommended

dismissing Allison’s suit, with prejudice, as frivolous pursuant to

28 U.S.C. § 1915(d). Allison objected to the magistrate judge’s

report and recommendation. Adopting the magistrate judge’s report

and recommendation, the district court dismissed Allison’s suit

pursuant to section 1915(d). Allison filed a timely notice of

appeal.

A complaint filed IFP may be dismissed as frivolous if it

lacks an arguable basis in law or fact. 28 U.S.C. § 1915(d); Eason

v. Thaler, 14 F.3d 8, 9 (5th Cir. 1994). A complaint lacks an

arguable basis in law if it is “based on an indisputably meritless

legal theory,” such as if the defendants are clearly immune from

suit or if the complaint alleges the violation of a legal interest

that clearly does not exist. Neitzke v. Williams, 490 U.S. 319,

327 (1989). This Court reviews a section 1915(d) dismissal for

abuse of discretion. Graves v. Hampton, 1 F.3d 315, 317 (5th Cir.

1993).

The initial question is whether Allison’s claims are

cognizable under section 1983. “Section 1983 is an appropriate

legal vehicle to attack unconstitutional parole procedures or

conditions of confinement.” Cook v. Texas Dep’t of Criminal

Justice Transitional Planning Dep’t, 37 F.3d 166, 168 (5th Cir.

1994). However, if a prisoner is challenging the result of a
3

specific defective parole hearing or is challenging a parole

board’s rules and procedures that affect his release and resolution

would automatically entitle him to accelerated release, then the

challenge must be pursued by writ of habeas corpus. Id. The

distinction is between claims that would “merely enhance

eligibility for accelerated release and those that would create

entitlement to such relief.” Id. (citation omitted). A claim that

has an indirect impact on whether a claimant eventually receives

parole may still be cognizable under section 1983. Id.

Allison stated in his complaint that he was not alleging that

his conviction was unlawful and was not seeking a speedier release

from confinement. He is seeking annual parole hearings in the

future, and he is not seeking monetary damages. Allison is seeking

to have the Parole Board comply with what he contends are due

process and ex post facto requirements in its parole review

procedures. It appears that a favorable determination on these

issues would not automatically entitle Allison to accelerated

release. Therefore, his claims are properly raised under section

1983.

Allison asserts that he is entitled to annual parole review

hearings. Liberally construed, Allison’s brief argues that new

parole review procedures deny him due process. He asserts that the

Board reviewed his record for possible parole in 1992 and did not

schedule a reconsideration hearing to be held until 1998.

“‘[N]either habeas nor civil rights relief can be had absent

the allegation by a plaintiff that he or she has been deprived of
4

some right secured to him or her by the United States Constitution

or the laws of the United States.’” Hilliard v. Bd. Of Pardons and

Parole, 759 F.2d 1190, 1192 (5th Cir. 1985) (citation omitted). At

least in the context of challenges to conditions of confinement,

liberty interests created by state statutes which are protected by

the Due Process Claim “will be generally limited to freedom from

restraint which, while not exceeding the sentence in such an

unexpected manner as to give rise to protection by the Due Process

Clause of its own force, nonetheless imposes atypical and

significant hardship on the inmate in relation to the ordinary

incidents of prison life.” Sandin v. Conner, 115 S.Ct. 2293, 2300

(1995) (internal citations omitted).

This Court recently stated that a challenge to parole review

procedures which affect the duration of confinement “might have

implicated the narrow range of prisoner liberty interests remaining

after Sandin” but for the fact that Texas law does not create a

liberty interest in parole that is protected by the Due Process

Clause. Orellana v. Kyle, No. 95-50252 (5th Cir. Aug. 11, 1995)

(unpublished) (citing Creel v. Keene, 928 F.2d 707, 712 (5th Cir.),

cert. denied, 501 U.S. 1210 (1991); Gilbertson v. Texas Bd. of

Pardons & Paroles, 993 F.2d 74, 75 (5th Cir. 1993)). “It follows

that because [the prisoner] has no liberty interest in obtaining

parole in Texas, he cannot complain of the constitutionality of

procedural devices attendant to parole decisions.” Orellana at 6.

The district court properly disposed of Allison’s claim regarding

alleged due process violations resulting from the parole review
5

process.

Allison argues that because he was convicted in 1969,

application of the 1987 and 1992 Parole Rules that altered the

period between parole reconsideration hearings constitutes an ex

post facto violation. Liberally construed, Allison’s brief argues

that the Parole Board is illegally employing procedures enacted

after the date of the commission of his offense and conviction,

which results in an extension of the period between his parole

reviews.

A law need not impair a vested right to violate the ex post

facto prohibition. See Weaver v. Graham, 450 U.S. 24, 29-30

(1981). “The presence or absence of an affirmative, enforceable

right is not relevant. . . . Critical to relief under the Ex Post

Facto Clause is not an individual’s right to less punishment, but

the lack of fair notice and government restraint when the

legislature increases the punishment beyond what was prescribed

when the crime was consummated.” Id. At 30.

Allison asserts that he was convicted in 1969 for robbery and

was given a life sentence. He was released on parole in 1982. In

1983 he was convicted of aggravated robbery and was sentenced to 99

years’ imprisonment. In 1991 his 99-year sentence was reduced to

35 years. In 1992 Allison’s case was reviewed for parole, which

was denied, and Allison was given a six-year setoff for review in

March 1998. He argues that because his TDC number did not change

from that issued when he was serving the sentence for the 1969

conviction, his parole eligibility should be governed by the laws
This provision was later designated as Article 42.12, § 15(e).

See Creel v. Kyle, 42 F.3d 955, 957 (5th Cir. 1995). Section 15(e)

was deleted in 1985. Id. Today, article 42.18 governs parole

review procedures, but “makes no mention of the intervals between

reviews for parole eligible individuals.” Id.

6

in effect in 1969, which required annual parole review. The

district court analyzed the Parole Rules and former Texas Code of

Criminal Procedure article 42.12, and determined that there was no

ex post facto violation.

Assuming without deciding that Allison’s parole review is

governed by the laws in place in 1969, there is no ex post facto

violation. Article 42.121 provided in pertinent part, “[w]ithin

one year after a prisoner’s admittance to the penal or correctional

institution and at such intervals thereafter, as it may determine,

the Board shall secure and consider all pertinent information

regarding each prisoner[.]” The article did not mandate annual

parole review. See Creel v. Kyle, 42 F.3d 955, 957 (5th Cir.),

cert. denied, 115 S.Ct. 1706 (1995). This is the same language

review by this Court on a similar ex-post-facto challenge in Creel,

42 F.3d at 957. This Court found that a 1985 amendment to parole

rules concerning the timing of reconsideration hearings did not

change the law in effect in 1971 and, thus, there was no ex post

facto violation. Id. At 957; see also California Dep’t of

Corrections v. Morales, 115 S.Ct. 1597, 1605 (1995) (change in

California law regarding frequency of parole hearings created “only

the most speculative and attenuated risk of increasing the measure

of punishment,” and, thus, did not violate the Ex Post Facto

Clause).
7

In 1969, article 42.12 allowed the Board to review Allison’s

case for parole at such intervals as it would determine. The 1987

and 1992 parole review rules provide that a case reviewed for

parole consideration may be denied and “set for further review on

a future specific month and year (setoff)[.]” 37 Tex. Admin. Code

§ 145.7 (West Supp. 1987); 37 Tex. Admin. Code § 145.12 (West Supp.

1992). The Board gave Allison a setoff until March 1998, a future

month and date. The review provisions in the 1987, 1992, and

current Administrative Code are consistent with the statutory

requirements in place at the time Allison was convicted. The

district court did not abuse its discretion by dismissing Allison’s

ex post facto claim as frivolous.

AFFIRMED