* 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should not be published and is not precedent except under the limited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.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 06-20495

Summary Calendar

RICHARD DELAIN KYLES

Petitioner-Appellant

v.

NATHANIEL QUARTERMAN, 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. 4:06-CV-1456

Before DAVIS, GARZA and PRADO, Circuit Judges.

PER CURIAM:*

Richard Delain Kyles, Texas prisoner # 257935, was sentenced to life in

prison following a 1976 conviction for capital murder. In 2006, Kyles filed a

28 U.S.C. § 2254 application challenging the application to him of certain

amendments to Texas parole procedures. Under the former procedure, the Texas

Board of Pardon and Paroles (the Board) acted in panels of three. Beginning in

1997, the law changed to require a two-thirds vote of the entire Board, then

United States Court of Appeals

Fifth Circuit

F I L E D

August 27, 2008

Charles R. Fulbruge III

Clerk
No. 06-20495

2

comprised of 18 members, in order to grant parole. Wallace v. Quarterman, 516

F.3d 351, 353 (5th Cir. 2008). The Board was reduced to seven members

effective January 11, 2004. TEX. GOV’T CODE ANN. § 508.031(a) (Vernon Supp.

2004).

As a threshold matter, the respondent argues that Kyles’s application is

barred by the one-year statute of limitations period because it should have been

brought within one year of the first denial of parole under the new procedure in

1998. We question the respondent’s analysis and application of the continuing

violation theory, given that Kyles is challenging the result of his 2004 parole

hearing, and his federal application as to that hearing was filed within the

limitations period. We need not decide this question, however, as we conclude

that Kyles’s arguments fail on the merits.

We recently held that the change in the Texas parole procedure of which

Kyles complains does not facially violate the Ex Post Facto Clause as it affects

the discretionary procedure for determining suitability rather than eligibility for

parole. See Wallace v. Quarterman, 516 F.3d 351, 354-56 (5th Cir. 2008).

However, we must nevertheless determine whether the amendment as applied

to Kyles presents a sufficient risk of increased confinement that the Ex Post

Facto Clause is implicated. Id. at 356.

Kyles contends that he obtained the votes ofthe three Board members who

served in the Angleton region in which he is incarcerated. However, like the

defendant in Wallace, Kyles put on no evidence in the state habeas proceedings

that those three persons would have been on a three-person panel appointed by

the Board to consider Kyles’s parole if the former panel procedure had been

applied to him. See Wallace, 516 F.3d at 356. Accordingly, the state court’s

resolution of Kyles’s claim was neither contrary to nor an unreasonable

application of clearly established federal law as required for the grant of federal

habeas relief. See id. at 353-54. Accordingly, we affirm the judgment of the

district court.
No. 06-20495

3

Kyles has also filed a motion to compelthe respondentto provide him with

a copy of the supplemental record. That motion is denied.

AFFIRMED; MOTION DENIED.