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Fifth Circuit Vacates Dismissal of Habeas Challenge to Texas Parole Changes

On February 2, 2011, the Fifth Circuit Court of Appeals vacated a district court’s judgment dismissing a prisoner’s challenge to retroactive changes in Texas parole procedures.

Matthew Clarke, a Texas state prisoner and PLN contributing writer, filed a habeas corpus petition in federal district court pursuant to 28 U.S.C. § 2254 challenging various changes in Texas parole procedures which allegedly “present a significant risk of prolonging his sentence and therefore are in violation of the Ex Post Facto Clause.”

The changes included delaying or denying parole “by requiring sex offenders to complete a sexual offender treatment program (SOTP) before being released on parole, by keeping violent offenders in prison longer to receive federal funds under the Truth-in-Sentencing Act, and by the State’s passing of laws that make it tougher for violent offenders to be released on parole.”

The challenged statutes were primarily those associated with the requirement that certain prisoners receive favorable parole votes from at least five of the seven parole board members, Tex. Gov’t Code §§ 508.031 and 508.046, and associated changes in parole rules, practices and policies. The district court denied relief, dismissed Clarke’s petition and denied a Certificate of Appealability (COA). Clarke then applied for a COA from the Fifth Circuit.

The appellate court held that the above-described issues raised by Clarke were “adequate to deserve encouragement to proceed further,” and granted a COA limited to those issues. A COA was not granted on other claims regarding retroactive changes to the Texas mandatory supervision procedures and a challenge to the retroactive requirement that the parole board receive a future dangerousness report on a prisoner before granting parole.

The Fifth Circuit also issued an unpublished opinion on the merits of the claims, granting in part and denying in part the COA, vacating in part the judgment of the district court and remanding the case to that court for further proceedings. See: Clarke v. Thaler, Fifth Circuit Court of Appeals, Case No. 10-40143 (unpublished); 2011 WL 817531 (5th Cir. 2011).

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Related legal case

Clarke v. Thaler