### IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

No. 13

- 60348

JEFFERY WAYNE WANSLEY,

Petitioner

– Appellee

v. MISSISSIPPI DEPARTMENT OF CORRECTIONS; EMMITT SPARKMAN,
Respondents

– Appellants

Appeal from the United States District Court for the South ern District of M ississippi

Before DAVIS, DENNIS, and COSTA, Circuit Judges

. GREGG COSTA, Circuit Judge : The Mississippi Department of Corrections denied J effery Wayne Wansley a parole hearing based on its view that he received an “enhanced penalty , ” which renders a prisoner inelig ible for parole in Mississippi. In seeking federal habeas corpus relief, Wansley argues that his sentence was not enhanced, and that the denial of a hearing violated state law and therefore deprived him of a liberty interest protected by the Due Process Clause of the Fourteenth Amendment

. The district court granted his petition , ordering a parole hearing. On appeal, Respondents argue that the discretionary nature of Mississippi’s parole regime means there is no liberty interest that gives rise to a fede ral constitutional issue. United States Court of Appeals Fifth Circuit 

### FILED October 2, 2014

Lyle W. Cayce Clerk Case: 13-60348 Document: 00512791018 Page: 1 Date Filed: 10/02/2014No. 13

- 60348
I. In 1999, Wansley was convicted of selling cocaine within 1,500 feet of a church in Mississippi state court. When Wansley was charged and convicted, the maximum sentence for selling cocaine was 30 years. Miss. Code Ann. § 41

- 29

- 139(b) (1999). That maximum sentence could be doubled , “in the discretion of the court,” if the sale took place within 1,500 feet of a church. Miss. Code Ann. § 41

- 29

- 142(1). Although h is conviction c ould have subjected him to a 60

- year sentence , Wa nsley received 30 years

. 1 In Mississippi, prisoners convicted of “felonies with enhanced penalties” are not eligible for parole. Miss. Code Ann. § 47

- 7

- 3(g) (2008). 2 At least twice in 2009 , the Mississippi Department of Corrections (MDOC) printed “inmate time sheets ” indicating that Wansley was eligible for parole. However, on July 29, 2009, MDOC printed a time sheet showing that Wansley had received an enhanced penalty and that he did not qualify for parole. 3 Wansley sought relief through MDOC’s Administrative Remedy Program . He argued that since his 30

- year sentence did not exceed the statutory maximum for selling cocaine absent the enhancement, MDOC had erred in finding that he received an enhanced sentence. MDOC responded that Wansley was ine ligible because , regardless of the sentence he received, a jury found him guilty of selling cocaine within 1,500 feet of a church

. The record

1 At oral argument, Respondents’ attorney stated that although Wansley is ineligible for parole, “for every thirty days he serves he gets a thirty day credit on his sentence , ” and that his expected date of release as of oral argument was in 2017 , with that release date becoming earlier if he continues to receive the two

- for

- one credit.
2 The relevant provision is now contained in section 47

- 7

- 3(f) of the Mississippi Code.
3 Resp ondents contend that the revised time sheet was the result of changes to MDOC’s computer system that allowed it to account for prisoners’ “enhanced status” after changes in state law allowed certain prisoners serving non

- enhanced sentences to become eligib le for parole. 2 Case: 13-60348 Document: 00512791018 Page: 2 Date Filed: 10/02/2014No. 13

- 60348
does not reveal whether Wansley proceeded beyond the first step of the

program. Wansley then filed a “motion for clarification” in the Mississippi Supreme Court, requesting that the court “clarify this sentence discrepancy.” The court denied his motion, stating only that it was “not well taken.” Wansley then filed a similar motion in Mississippi trial court; it wa s denied on the ground that the court lacked jurisdiction to consider a petition for postconviction relief without the Mississippi Supreme Court’s approval. Wansley then filed a pro se habeas corpus petition in federal court , claiming that he was eligible for parole under Mississippi law. Respondent s moved to dismiss because (1) Wansley’s claim did not allege a violation of federal law cognizable in federal habeas corpus review , and (2) Wansley’s sentence was enhanced by virtue of his conviction of selling cocaine within 1,500 feet of a church. The district court appointed counsel to represent Wansley. His subsequent briefs argued that , by denying him a parole hearing to which he was entitled under Mississippi law, MDOC deprived him of a liberty interest in violation of the Due Process Clause

. The magistrate judge recommended ruling against Wansley, finding that Mississippi law did not create a liberty interest in parole that implicated due process protections and, in the alternative, that the denial of r elief by the Mississippi Supreme Court was not unreasonable. The district court did not adopt the magistrate judge’s recommendation. Instead, it first determined that Wansley had exhausted his remedies by “fairly present[ing] his issue to the Mississippi Supreme Court.” It then addressed Wansley’s eligibility for a parole hearing under Mississippi law

. Citing a Mississippi Court of Appeals decision , see Pearson v. State , 64 So. 3d 569, 577 (Miss. Ct. App. 2011), the district court con cluded that because the sentencing judge in Wansley’s case 3 Case: 13-60348 Document: 00512791018 Page: 3 Date Filed: 10/02/2014No. 13

- 60348
had declined to exceed the non enhanced statutory maximum, Wansley had not received an enhanced sentence and was therefore eligible for a parole hearing

. The district court then turned to the constitutional issues

. Acknowledging that Mississippi law does not create a constitutionally protected liberty interest in parole itself because parole is discretionary , it held that Wansley nonetheless had a constitutional right to a parole hearing

. Relying on Hicks v. Okla homa , 447 U.S. 343 (1980), it found that Wansley “has a liberty interest in having MDOC compute his sentence in accordance with the sentencing authority’s exercise of discretion,” and that he was deprived of that liberty interest when he was denied a heari ng. It also suggested that Wansley ha s a right, under the Equal Protection Clause, to have his sentence computed in the same way as similarly situated prisoners, although it appears not to have conclusively determined whether this right was violated. 4 Th e district court thus granted the petition and ordered a parole hearing . This court stayed the order pending appeal

. II. A federal court may issue a writ of habeas corpus only if a state prisoner “is in custody in violation of the Constitution or laws or treaties of the United States.” 28 U.S.C. § 2254( a ). A petition for federal habeas corpus relief based on an argument that state courts are incorrectly applying their own law thus is not a basis for relief

. 5 See Beazley v. Johnson , 242 F.3d 248, 261 (5t h Cir.
2001 ) (“[T] he proper interpretation of state law is not cognizable in fed e ral

4 The district court only observed that “ [i]f other inmates with non

- enhanced sentences were deemed eligible for parole,

. . . Wansley will not have been treated equally under the law ,” and noted that one offender on MDOC’s website in a situ ation like Wansley’s appeared to have been released on parole.
5 We consider the merits of Wansley’s constitutional claim even though we have doubts that the federal claims were exhausted because Respondents have waived the exhaustion defense. McGee v. Es telle , 722 F.2d 1206, 1214 (5th Cir. 1984)

. 4 Case: 13-60348 Document: 00512791018 Page: 4 Date Filed: 10/02/2014No. 13

- 60348 habeas proceedings.” ). S tate laws , however, may create liberty interests protected by the Due Process Clause. See Kentucky Dep’ t of Corr. v. Thompson , 490 U.S. 454 , 460

– 61 (1989). In those situations, federal due process law sets the minimum procedures that are required before the state can deprive a person of that liberty interest. See Wolff v. McDonnell , 418 U.S. 539, 557 (1974)

. When a state has a system of mandator y parole, such a liberty interest exists that implicates the procedural guarantees of the Due Process Clause

. See Bd. of Pardons v. Allen , 482 U.S. 369, 373

– 74 ( 1987)

. P arole , however, is discretionary in Mississippi, so prisoners in the state have no lib erty interest in parole. See Miss. Code Ann. §§ 47

- 7

- 3, 47

- 7

- 17; Smith v. Mississippi Parole Bd. , 478 F. App’x 97, 99 (5th Cir. 2012) ; Irving v. Thigpen , 732 F.2d 1215, 1217 (5th Cir. 1984)

. Wansley recognizes this, and argues instead that Mississippi law creates a liberty interest in a parole hearing

. But “ an expectation of receiving process is not, without more, a liberty interest protected by the Due Process Clause.” See Olim v. Wakinekona , 461 U.S. 238, 250 n.12 (1983) ; accord Ladd v. Stephens , 748 F.3d 637, 644 (5th Cir. 2014) ( holding that it is “where there is ‘a significant substantive liberty interest [at stake]’” that a state law “entitles the petitioner to a set of core procedural due process protections”); Elliott v. Martinez , 675 F.3d 1241, 1245 (10th Cir. 2012) (noting, regarding the Due Process Clause, that “the protected interests are substantive rights, not rights to procedure”). We may only question state s ’ procedures when they are “fundamentally ina dequate to vindicate [a] substantive right []. ” Dist. Attorney ’ s Office for Third Judicial Dist. v. Osborne , 557 U.S. 52, 69 (2009)

. A ccordingly , when a prisoner “has no liberty interest in obtaining parole

. . . he cannot complain of the constitutionality of procedural device s attendant to parole decisions

. ” Orellana v. Kyle , 65 F.3d 29, 32 (5th Cir. 1995) ; see also 5 Case: 13-60348 Document: 00512791018 Page: 5 Date Filed: 10/02/2014No. 13

- 60348
Breshears v. Garrett , 143 F. App’ x 570, 572 (5th Cir. 2005) (affirming district court’s dismissal of claim as frivolous because “Texas prison ers had ‘ no constitutionally protected right to parole or a parole hearing’”). This is consistent with the way our sister circuits have addressed claims from state prisoners seeking to establish a constitutional right to a parole hearing when there is no state

- created liberty interest in parole itself

. See , e.g. , Utley v. Rose , 201 F.3d 442 , 1999 WL 1252880 , at *1 (6th Cir. 1999 ) (unpublished table decision) (“Since Utley has neither an inherent constitutional right to parole nor a protected l i berty inter est created by mandatory state parole laws, he cannot maintain a due process claim based upon the denial of a parole hearing .”) ; Brandon v. D.C. Bd. of Parole , 823 F.2d 644, 648 (D.C. Cir. 1987) (“Appellant’s claim that he has a constitutionally protected liberty interest in a reparole hearing and thus a due process right to have the Board adhere to its regulations lacks support in law or logic.” ) ; Shango v. Jurich , 681 F.2d 1091, 1101 (7th Cir. 1982) (“If a right to a hearing is a liberty interest, and if due process accords the right to a hearing, then one has interpreted the Fourteenth Amendment to mean that the state may not deprive a person of a hearing without providing him with a hearing. Reductio ad absurdum.” )

. The absence of a federal issue in Wansley’s situation is revealed by the following incongruity that would result from granting his petition : state law would serve as the source of both the liberty interest and the process due ( tha t is, the parole hearing which is required under Wansley’s reading of state law )

. T he latter , however should be a matter of federal law once a state

- created liberty interest is at stake. Hicks v. Oklahoma , on which the district court relied, does not est ablish that there is a liberty interest in a parole hearing. That case involved the question of what the Due Process Clause required after a defendant was sentenced pursuant to a 40

- year mandatory sentencing statute later held to be 6 Case: 13-60348 Document: 00512791018 Page: 6 Date Filed: 10/02/2014No. 13

- 60348
unconstitutional. 447 U.S. at 345

. A 40

- year sentence, or sentence of any length for that matter, undoubtedly implicates a defendant ’ s liberty interest

— one that arises from the federal constitution itself without recourse to the

“ state

- created liberty interest ” inquiry. Hicks was therefore only concerned with the second step of what process is due once a liberty interest is implicated.
W hether or not Wansley is entitled to a parole hearing as a matter of Mississippi law , the discretionary nature of the state’s parole sys tem ends the federal due process inquiry. 6 Any relief he is entitled to under Mississippi law must be obtained in the courts of that state. We therefore REVERSE the judgment of the district court and DISMISS Wansley’s petition

.

6 Although the district court noted the possibility that Wansley may have an equal protection claim, it does not appear to have been the basis for its ruling and Wansley does not press the argument on appeal. 7 Case: 13-60348 Document: 00512791018 Page: 7 Date Filed: 10/02/2014