Vineyard v. Keesee

• Court: Court of Appeals for the Fifth Circuit
• Decided: October 24, 1995
• Docket: 95-10132
• Status: Unpublished

Opinion

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

__________________________

No. 95-10132 (Summary Calendar) ___________________________

JOHN OTIS VINEYARD, Petitioner-Appellant,

versus

D. L. “SONNY” KEESEE, ET AL., Respondents-Appellees.

____________________________________________

Appeal from the United Sates District Court for the Northern District of Texas (5:94-CV-49-C) ____________________________________________ (October 18, 1995)

Before GARWOOD, WIENER and PARKER, Circuit Judges.

PER CURIAM:1

Petitioner-Appellant John Otis Vineyard (“Vineyard”) appeals

the district court’s dismissal of his habeas corpus petition filed

pursuant to 28 U.S.C. § 2241 and 2254 against D. L. “Sonny” Keesee;

the Attorney General of Texas; and Wayne Scott, the Director of the

Texas Department of Criminal Justice--Institutional Division (“the

State” or “Respondents”). On appeal Vineyard raises issues

1 Local Rule 47.5 provides: “The publication of opinions that have no precedential value and merely decide particular cases on the basis of well-settled principles of law imposes needless expense on the public and burdens on the legal profession.” Pursuant to that Rule, the Court has determined that this opinion should not be published. implicating the Ex Post Facto Clause and the Due Process Clause of

the United States Constitution, as well as the district court’s

failure to hold an evidentiary hearing and denial of discovery.

Vineyard has also filed motions for appointment of counsel and

class certification.

I

FACTS AND PROCEEDINGS

Vineyard was found guilty by a state jury of the felony

offense of aggravated robbery and received a 25-year term of

incarceration. His sentence and conviction were affirmed on direct

appeal. Vineyard, having filed numerous state applications for

habeas relief, all of which were denied either without written

order or without a hearing, has exhausted state remedies.

In the instant federal habeas petition, Vineyard raised

fourteen allegations challenging the Texas parole statutes, his

parole status, and the revocation of his parole. Respondents

answered and moved for summary judgment, after which Vineyard filed

an opposition and his own motion for summary judgment. The

magistrate judge recommended dismissal of Vineyard’s petition with

prejudice. Vineyard filed objections which the district court

overruled when it adopted the magistrate judge’s recommendation.

Final judgment was entered accordingly. Vineyard timely filed a

notice of appeal, requesting a certificate of probable cause (CPC)

which the district court denied. Vineyard appealed.

II

ANALYSIS

2 a. Certificate of probable cause

The State takes the position that a CPC is necessary. It is

not. Vineyard’s petition deals with parole revocation procedures

and issues, not with his original conviction. The issuance of a

CPC is required to take an appeal from a final order in a habeas

corpus proceeding only when “the detention complained of arises out

of process issued by a State Court.” See 28 U.S.C. § 2253. A CPC

is not needed to provide appellate jurisdiction here, as Vineyard’s

present detention does not arise out of process issued by a state

court. Vineyard is not contesting the legality of his conviction

or the validity of his initial sentence. Rather he is contesting

the manner in which his sentence is being executed by the Texas

Department of Criminal Justice, Pardons and Paroles Division, which

claim arises under 18 U.S.C. § 2241. United States v. Gabor, 905

F.2d 76, 77-78 (5th Cir. 1990).

b. Condition of parole as ex post facto violation.

Vineyard contended in the district court that he was subjected

to a number of conditions of parole that amount to ex post facto

violations; specifically, electronic monitoring, urinalysis,

driving restrictions, curfew, and the forced payment of fees. If

a legislative change alters the definition of criminal conduct or

increases the penalty by which a crime is punishable it violates

the ex post facto prohibition. Collins v. Youngblood, 497 U.S. 37,

41 (1990). Our analysis here must focus on whether the change in

Texas parole laws increased the penalty by which Vineyard’s crime

could be punished. A statute may be impermissibly retrospective,

3 “even if it alters punitive conditions outside the sentence

itself.” Weaver v. Graham, 450 U.S. 24, 32 (1981). A condition of

parole could be construed as a punitive condition--that is, as a

“legal consequence” attaching to the commission of a crime--in two

different respects. First, a condition of parole could affect the

length of sentence if the condition was so onerous that it was

effectively impossible to meet. Murray v. Phelps, No. 88-3302 (5th

Cir. Feb. 3, 1989)(unpublished, reprinted as Appendix to Sheppard

v. La. Bd. of Parole, 873 F.2d 761, 764 (5th Cir. 1989)). Second,

because the Ex Post Facto Clause does not apply only to sentence

length, but to any punishment, a monetary payment--whether labeled

as payment of supervision costs, as restitution, or as a fine--that

flows from the commission of the underlying crime, rather than from

some subsequent act of the parolee, could be construed as a part of

the punishment of that crime because the payment is a condition of

the parolee’s continued release from prison. Id. Few parole

conditions other than required fees or payments would be

susceptible to this analysis. Id. At 764, n.4. Conditions

regulating the parolee’s conduct are analogous to recidivist

statutes which have not been found to violate the Ex Post Facto

clause. See id. Both habitual offender statutes and legislation

prohibiting previously convicted felons from undertaking certain

activities have withstood ex post facto scrutiny. See DeVeau v.

Braisted, 363 U.S. 144, 160 (1960) (law prohibiting previously

convicted felons from participating in waterfront labor unions not

ex post facto increase in punishment); McDonald v. Massachusetts,

4 180 U.S. 311 (1901) (laws creating aggravated penalties for

recidivist criminal activity not ex post facto even though

predicate offense predates statute); United States v. Sutton, 521

F.2d 1385, 1390-91 (7th Cir. 1975) (Congress constitutionally

allowed to restrict criminals whose felonies occurred in the past

from receiving firearms.)

The electronic monitoring, urinalysis, driving restrictions,

and curfew in question are neither so onerous that they are

effectively impossible to meet, nor are they a monetary payment.

No ex post facto violations have occurred with regard to these

conditions.

Although Vineyard lists “payment of fees” along with other

allegedly unconstitutional conditions of parole, there is no

genuine issue of material fact concerning his parole fees claim.

The evidence in the record conclusively shows that nonpayment of

fees was not alleged or considered as a factor meriting parole

revocation. In fact, the record is devoid of evidence that

Vineyard ever paid fees related to his parole, and, if so, pursuant

to what authority. Even Vineyard’s pleadings are unclear

concerning which fees he contends were imposed on him in violation

of the ex post facto prohibition. Vineyard may have been required

to pay a monthly parole supervision fee pursuant to art. 42.18(j).

However, such payments can be deferred at a parolee’s request, and

inability to pay is an affirmative defense to revocation. It is

not apparant from the record if Vineyard ever payed supervision

fees. It is therefore unnecessary and, for that matter, impossible

5 for the Court to determine if these unspecified fees were

unconstitutional as Vineyard claims.

C. Parole release versus certificate of discharge

Vineyard argues that an ex post facto violation occurred when

he was given a “parole release” rather than a certificate of

discharge, to which he insists he was entitled. He contends that

a Texas statutory amendment negatively affected the use of good

time credits regarding release from prison. This position is

foreclosed by unpublished Fifth Circuit precedent, which holds,

“[a]n amendment to a state’s parole eligibility procedure is not an

ex post facto law.” In re Downs, No 95-50282, slip op. at 2 (5th

Cir. June 1995) (unpublished) (copy attached), citing California

Dep’t of Corrections v. Morales, 115 S. Ct. 1597, 1599 (1995). In

that case, Downs sought leave to proceed in forma pauperis (IFP) in

an appeal attacking an unspecified “change in the way that Texas

prisoners accrue good time.” Downs, slip op. at 2. This Court

summarily denied IFP and dismissed his appeal as frivolous,

focusing instead on the imposition of sanctions against Downs for

a death threat against the district judge. The apparent broadness

with which we stated the rule is belied both by the narrow

circumstances presented by Downs, and by the Supreme Court’s

opinion in Morales, on which Downs relied. However, we must save

the question of the breadth of Downs in light of Morales for

another day, because Vineyard’s claims fails on independent grounds

of statutory construction.

The prior Texas statute, on which Vineyard relies, provided

6 that good time earned could be counted to reduce the length of time

an inmate had to serve. See TEX. CODE CRIM. PROC. ANN. art. 42.12 §

23 (Vernon 1979) (repealed). In 1977, before Vineyard committed

his crime, the legislature amended the parole statute to provide

for release on mandatory supervision when an inmate’s calendar time

and good time equaled his maximum sentence. Acts 1977, 65th Leg.,

ch. 347 § 1. Release on mandatory supervision was a form of

parole, requiring the releasee to report to a parole officer and to

abide by certain conditions of release. By not repealing § 23,

however, the legislature created a conflict between the practices

of discharging a sentence and mandatory supervision. In such a

situation, rules of statutory construction require that the latest

enacted statute prevail over the one passed first. TEX. GOV. CODE

ANN. § 311.025(a) (Vernon 1988). In addition it must be presumed

that the legislature intended to give effect to the practice of

mandatory supervision when it created it. Id. § 311.021. Thus, the

provisions relating to mandatory supervision take precedence over

§ 23's allowance of a full discharge of a sentence.2

D. Due process

Vineyard next contends that he was denied due process in

connection with his parole revocation hearing. The minimum

requirements of procedural due process for revocation hearings

The inconsistency was corrected in 1985, when the legislature formally ended the practice of discharging a sentence. See Acts 1985, 69th Leg., ch. 239 § 80(a). The repealing act provided that it did not apply to inmates who had less than twelve months remaining before being eligible for a discharge certificate. Vineyard has neither contended nor shown that he met this criterion.

7 include: 1) written notice of the claimed violations of parole; 2)

the disclosure to the parolee of evidence against him; 3) the

opportunity to be heard in person and to present witnesses and

documentary evidence; 4) the qualified right to confront and cross-

examine adverse witnesses; 5) a neutral and detached hearing body;

and 6) a written statement by the fact finders as to the evidence

relied on and reasons for revoking parole. Morrissey v. Brewer, 408

U.S. 471, 489 (1972).

An admission of a violation waives the Morrissey protections,

provided that the violation is a “possible ground[] for revoking

parole under state standards.” Id. at 490; United States v.

Holland, 850 F.2d 1048, 1050-51 (5th Cir. 1988) (probation

violation). In addition, a parolee “who admits the allegations

against him must still be given an opportunity to offer mitigating

evidence suggesting that the violation does not warrant

revocation.” Holland, 850 F.2d at 1051.

A “Report of Violation” dated September 2, 1993, indicates

that Vineyard admitted (1) violating electronic monitoring twice,

and (2) drinking alcoholic beverages. Subsequently, at his

preliminary revocation hearing, Vineyard denied the violations that

he had previously admitted, but admitted violating the rule that

prohibited driving without permission. An attorney work sheet

indicates that when interviewed on September 23, 1993, Vineyard

denied committing various violations but that he “had already

admitted to these” violations on September 2, 1993.

Vineyard’s certificate of parole specifically states that he

8 must have the Board’s “written permission to drive,” and that any

violation of the conditions of parole “shall be sufficient cause

for revocation.” The record of Vineyard’s parole revocation

proceedings indicates that he was given the opportunity to offer

mitigating evidence but did not do so. Vineyard has clearly waived

any due process violations.

d. Evidentiary hearing; discovery

Vineyard also contends that the district court erred by not

conducting an evidentiary hearing nor permitting discovery.. He

does not specifically allege what discovery or an evidentiary

hearing would have revealed.

An evidentiary hearing was not necessary here because the

record before the district court was adequate for a disposition of

the case. See Joseph v. Butler, 838 F.2d 786, 788 (5th Cir. 1988)

(§ 2254 case). Neither was discovery required. Little authority

exists regarding the ambit of, and procedure for, discovery in §

2241 cases. The Federal Rules of Civil Procedure are not normally

applicable to § 2241 proceedings, but 28 U.S.C. § 2246 authorizes

interrogatories in limited circumstances. A district court, when

presented with a § 2241 petition that establishes a prima facie

case for relief, “may use or authorize the use of suitable

discovery procedures, including interrogatories, reasonably

fashioned to elicit facts necessary to help the court to dispose of

the matter.” Harris v. Nelson, 394 U.S. 286, 290 (1969) (internal

quotation omitted) (citing 28 U.S.C. § 2243); see also Hernandez v.

Garrison, 916 F.2d 291, 293 (5th Cir. 1990) (rules of pretrial

9 discovery are not applicable to habeas corpus proceedings unless

necessary to help the court dispose of the matter as law and

justice require).

In § 2254 proceedings, district court have the discretion to

permit discovery on a showing of good cause under Rule 6 of the §

2254 Rules. Still, conclusional allegations are not enough to

warrant discovery under Rule 6; a petitioner must set forth

specific allegations of fact. Id; see also Willie v. Maggio, 737

F.2d 1372, 1395 (5th Cir.), cert. denied, 469 U.S. 1002 (1984).

Vineyard has not shown the existence of specific factual

disputes warranting discovery.. He has not presented a petition

that establishes a prima facie case for relief; neither has shown

that discovery is required to dispose of the matter as law and

justice require.

e. Appointment of counsel; class certification

Vineyard also requests, without stating why or offering

specific support, the appointment of counsel and class

certification. He made similar requests in the district court,

both of which were denied. Claims such as these, which are not

adequately argued in the body of a brief, are deemed abandoned on

appeal. See Brinkmann v. Dallas County Sheriff Abner, 813 F.2d

744, 748 (5th Cir. 1987). To the extent he is seeking the

appointment of counsel on appeal, he has not demonstrated that his

appeal presents exceptional circumstances warranting such an

appointment. See Ulmer v. Chancellor, 691 F.2d 209, 212 (5th Cir.

1982) (§ 1983 case).

10 III

CONCLUSION

Based on the foregoing, the district court’s judgment is

affirmed, and Vineyard’s motions for appointment of counsel and

class certification are denied.

AFFIRMED. MOTIONS DENIED.