UNITED STATES COURT OF APPEALS

For the Fifth Circuit

NO. 93-8607

JOHN LEE COOK, SR.,

Plaintiff-Appellant,

versus

TEXAS DEPARTMENT OF CRIMINAL JUSTICE

TRANSITIONAL PLANNING DEPARTMENT,

Southern Region Institutional Division, ET AL.,

Defendants-Appellees.

Appeal from the United States District Court

for the Western District of Texas

( October 21, 1994 )

Before REAVLEY, DeMOSS, and STEWART, Circuit Judges.

DeMOSS, Circuit Judge:

John Lee C ook challenges as unconstitutional a parole board

procedure that allowed the board to take voided prior convictions

into consideration when making eligibility det erminations. The

issue presented is whether such a claim is cognizable under 28

U.S.C. § 1983 or must instead be brought, after exhausting state

remedies, as a habeas corpus claim under 28 U.S.C. § 2254.

BACKGROUND

Cook was convicted of burglary in 1964. In 1982, Cook was

convicted of ind ecency with a child, and received twenty years,2

which included a ten-year enhancement for the 1964 conviction. In

1987, this Court voided Cook's 1964 conv iction because Cook was

indigent and without counsel at his probation revocation hearing in

1964. Cook v. Lynaugh , 821 F.2d 1072 (5th Cir. 1987). The Court

also reversed Cook's 1982 conviction, holding that Cook's counsel

was constitutionally ineffective for failing to investigate the

validity of the 1964 sentence. I d

. at 1079. Cook later entered a

nolo plea on the indecency charge (under the same indictment) in

return for time served on the 1982 conviction. Cook contends he

did so because the pr osecutor threatened to re-try him, thereby

keeping the case tied up in court and Cook in jail.

In February 1993, Cook was again convicted, this time for

possession of a controlled substance. He was sentenced to Texas

Department of Criminal Justice for five years. Cook neither

appealed the conviction nor petitioned for habeas corpus relief.

In April 1993, the Texas Board of Pardons and Paroles (the Board)

evaluated Cook for parole el igibility. The Board denied parole

based on Cook's (1) criminal behavior pattern, (2) involvement with

a controlled substance or inhalant, (3) multiple-offender status,

and (4) parole violation on a previous sentence. Cook acknowledges

that his involvement with a controlled substance is a legitimate

consideration for the Board in deciding his eligibility for parole.

Cook argues, however, that the pa role board violated his

constitutional rights by considering the other three factors, which

were based on convictions held void by decision of this court.3

Cook file d a complaint pursuant to 42 U.S.C. § 1983.

Defendants, Midland County, Texas and Sheriff Gary Painter treated

Cook's pleading as a civil rights complaint and filed an answer.

In their answer, they contend Cook fa iled to sufficiently allege

claims against them. The district court did not address this

contention. The State, treating the case as a writ of habeas

corpus, moved to dismiss for failure to exhaust state remedies.

The district court, adopting the Report and Recommendation of the

Magistrate, held that Cook's challenge to the parole board

procedure raised both § 1983 and habeas corpus claims because Cook

challenged both the procedure und er which his parole hearing was

conducted and the result of his single parole hearing. The

district court's holding was based on the well-settled rule that

when a prisoner challenges a single alleged ly defective hearing

affecting eligibility for, or entitlement to, accelerated release,

he must pursue those claims initi ally through habeas corpus.

J ohnson v. Pfeiffer , 821 F.2d 1120, 1123 (5th Cir. 1987). The

court reasoned that Cook's claim for injunctive relief, which

essentially is an attack on the propriety of a single allegedly

defective hearing may not be asserted until habeas corpus remedies

have been exhausted. Accordingly, the district court dismissed

Cook's habeas claim s for failure to exhaust state remedies;

dismissed the § 1 983 claims without prejudice; and conditionally

stayed the statute of limitations, provided Cook sought habeas

corpus relief in the state court within ninety days. We now

reverse.4 DISCUSSION

The line between claims which must in itially be pressed by

writ of habeas corpus and those cognizable under § 1983 is a blurry

one. A section 1983 action is an appropriate remedy for recovering

damages resulting from illegal administrative procedures.

Richardson v. Fleming , 651 F.2d 366, 372 (5th Cir. 1981). On the

other hand, the writ of habeas corpus is the appropriate federal

remedy for a state prisoner challenging the fact of c onfinement.

Preiser v. Rodriquez

, 411 U.S. 475, 484 (1973). The core issue in

determining whether a prisoner must pursue habeas corpus relief

rather than a civil rights action is to determine whether the

priso ner challenges the "fact or duration" of his confinement or

merely the rules, customs, and procedures affecting "conditions" of

confinement. S pina v. Aaron

, 821 F.2d 1126, 1128 (5th Cir. 1987).

Section 1983 is an appropriate lega l vehicle to attack

unconstitutional parole procedures or conditions of confinement.

Johnson

, 821 F.2d at 1123; Preiser

, 411 U.S. at 498. However, when

a prisoner chal lenges the result of a single defective parole

h earing that claim must be pursued by writ of habeas corpus. S ee

Strader v. Troy

, 571 F.2d 1263, 1269 (4th Cir. 1978).

Additiona lly, broad-based challenges to the parole board's rules

and procedures that affect a pris oner's release must also be

pursued in habeas corpus, if resolution of the factual and legal

allegations would automatically entitle the plaintiff to

accelerated release. J ohnson

, 821 F.2d at 1123. In considering

whether a broad-based claim has such an effect, a distinction must5

be made between claims that would merely enhance eligibil ity for

accelerated release and those that would create entitlement to such

relief. S erio v. Members of La. State Bd. of Pardons

, 821 F.2d

1112, 1119 (5th Cir. 1987). A claim that has an i ndirect impact on

the determination of whether a claimant eventually receives parole

may still be cognizable under § 1983. Johnson , 821 F.2d at 1123.

The district court was of the opinion that Cook sought a

"mixed bag" of relief, which involved both § 1983 and § 2254,

because Cook challenged both the procedure under which his parole

hearing was conducted and the result of that hearing. When claims

can be separated, it is generally not proper to dismiss an entire

compl aint on non-exhaustion grounds merely because the complaint

raises both habeas and § 1983 claims. The district court, however,

felt that Coo k's § 1983 and habeas claims were "inextricably

intertwined." Therefore, the district court dismissed Cook's

entire complaint.

We hold that Cook's challenge to the parole board procedure is

cognizable under § 1983, and that dismissal was therefore improper.

Cook is not challenging the fact of his conviction or confinement,

but is merely seeking to avoid what he believes is an

unconstit utional procedure by the Board. Further, Cook does not

ask this Court to order a new parole hearing, but instead seeks

injunctive relief to prevent the Board from considering the voided1 The district court found that Cook had requested a rehearing

by the parole board. We have searched the record and the briefs on

appeal. Although there are two isolated phrases in Cook's trial

pleadings that could be interpreted as a request for a new parole

hearing, the phrases are not without ambiguity. We are bound to

interpret pro se pleadings liberally. Read in context, we do not

agree that Cook definitively requested a new parole hearing. Cook

repeatedly states, both in his Complaint and in his briefs on

appeal, that he realizes he is not entitled to a new parole hearing

and t hat he is merely seeking to avoid the taint of his voided

prior convictions in any future hearings. [ S ee Complaint

(plaintiff "requests that the Court issue a prospective injunction

against the State Parole Board, and Midland County to prevent the

use of the two void prior convictions in any judicial proceeding

that ma y affect the plaintiff unfavorably"); Appellant's Brief

(appellant "knows that he cannot obtain [a] new parole hearing");

Notice of Appeal (claiming he does not seek a new parole hearing at

a definite time but instead seeks injunctive r elief prohibiting

consideration of his prior void convictions in future hearings).

6 prior convictions in future parole hearings. 1 Thus, Cook is not

challenging a "single defective hearing."

Likewise, our decision in Cook's favor does not entitle him to

immediate release. Granting Cook the relief he seeks will merely

prohibit the Board from considering his voided prior convictions in

future parole hearings. The Board is still charged with

determining if and when Cook is released on parole, which will be

governed, as was the initial decision, by factors in addition to

these raised in this appeal. We follow our sister circuit in

holding that a prisoner's challenge to parole board consideration

of voided prior convictions is cognizable under § 1983, when the

prisoner does not challenge the result of the hearing or request a

new hearing at a specified time. Strader v. Troy , 571 F.2d 1263,

1269 (4th Cir. 1978).

We therefore REVERSE the district court's order dismissing

Cook's complaint and REMAND the case to the district c ourt. On2 We no te that enjoining the board from considering the two

voided prior convictions will not make Cook a first time offender.

Cook's second conviction on the indecency charge, which was based

on Cook's nolo plea, has not been d eclared void. Although Cook

alleges this conviction was based on th e same "fatally defective

indictment" as the first indecency conviction, Cook has not asked

this court to declare the conviction void. Such a claim by Cook

would have to be brought as a habeas corpus claim under 28 U.S.C.

§ 2254 (1994).

7 remand, the court should order entry of injunctive relief

prohibiting the Board, in future parole proceedin gs, from

considering Cook's two prior convictions held void in C ook v.

Lynaugh

, 821 F.2d 1072 (5th Cir. 1987). 2 Additionally, we conclude

from the district court's order that it also dismissed Co ok's

separate § 1983 claims against Midland County , Texas and Sheriff

Gary Painter, which related to access to legal materials. Such

claims are clearly cognizable under § 1983. On remand, the claims

against Midland County, T exas and Sheriff Gary Painter should be

reinstated and considered by the district court.wjl\opin\93-8607.opn

ves 8 No. 93-8607, John Lee Cook, Sr. v. Texas Department of Criminal

Justice Transitional Planning Department, Southern Regional

Institutional Division, et al.

REAVLEY, Circuit Judge, dissenting:

Cook only see ks a declaration or injunction against

utilization of a void conviction in any future parole hearing. He

seeks no damages or change in his custody. He has acted pro se as

his own attorney. If the Texas authorities have notice of the

voiding of the 1964 conviction and will not use the conviction

itself against him in future hearings, and no reason appears to

expect them to do otherwise, I fail to see the controversy. Cook

would have what he wants, and this lawsuit should end.