     Case: 09-20747 Document: 00511438775 Page: 1 Date Filed: 04/07/2011




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                    Fifth Circuit

                                                 FILED
                                                                            April 7, 2011

                                      No. 09-20747                         Lyle W. Cayce
                                                                                Clerk

MICHAEL WILLIAMS

                                                  Petitioner-Appellant
v.

RICK THALER, Director, Texas Department of Criminal Justice,
Correctional Institutions Division,

                                                  Respondent-Appellee




                   Appeal from the United States District Court
                        for the Southern District of Texas
                                  (06-CV-1564)


Before GARWOOD, GARZA, and DENNIS, Circuit Judges.
PER CURIAM:*
       In 2003, appellant Texas prisoner Michael Williams was released on
parole after serving twenty-one years of a ninety-nine year sentence. His
parole was revoked by the Texas Board of Pardons and Paroles (Parole Board)
in 2004 after a woman claiming to be his daughter alleged that he assaulted




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
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her.1 At Williams’s parole revocation hearing, he sought to call three
witnesses who were incarcerated at the time – Ollen Nugent, Samuel Oakley,
and George Henderson. The Parole Board hearing officer refused to subpoena
the three witnesses, and Williams pursued habeas relief in the state and
federal courts on the theory that his revocation hearing did not comply with
the due process requirements for parole revocation hearings articulated by
the Supreme Court in Morrissey v. Brewer, 92 S.Ct. 2593 (1972). In 2009, this
court held that Williams was entitled to a new parole revocation hearing that
was in full compliance with the requirements of Morrissey and remanded the
case for further proceedings consistent with its opinion. Williams v.
Quarterman, 307 F. App’x 790, 794 (5th Cir. 2009). The opinion focused on
the hearing officer’s failure to subpoena Nugent, Henderson, and Oakley. Id.
at 792-94.
      Rather than having a new full revocation hearing, the Parole Board
reopened Williams’s prior hearing on March 12, 2009 at the correctional
facility in Beaumont, Texas where he was incarcerated. At the hearing, the
Parole Board hearing officer attempted to subpoena Oakley, Henderson, and
Nugent. No evidence was presented against Williams, and he was not
permitted to subpoena any other witnesses. Only one witness testified at the
hearing– Samuel Oakley. George Henderson was no longer incarcerated and
resided in Dallas at the time of the hearing. He was served with a subpoena,
but informed Williams’s parole officer that he could not afford to travel to
Beaumont and did not appear at the hearing. Ollen Nugent reportedly died
in November of 2005 while in prison. After the hearing, the Parole Board



      1
         Williams had previously been criminally charged with that assault and had been
acquitted.

                                           2
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again revoked Williams’s parole.
      Williams subsequently filed a motion to hold the respondent in
contempt and a motion to enforce this court’s order. Both motions were
denied by the district court. This court construed Williams’s motions as a
request for habeas relief and granted a certificate of appealability on the issue
of “whether the district court erred by holding that the Board conducted a
new revocation hearing that fully complied with Morrissey in accordance with
this court’s remand order.”
      We review de novo the district court’s interpretation of the scope of this
court’s remand order. United States v. Lee, 358 F.3d 315, 320 (5th Cir. 2004).
“[A] lower court on remand must implement both the letter and the spirit of
the appellate court’s mandate and may not disregard the explicit directives of
that court.” Id. at 321 (internal citations and quotation marks omitted). The
final paragraph of our prior opinion states:
      “We conclude that on this record, Williams is entitled to a new
      parole revocation hearing that fully complies with Morrissey.
      This disposition makes it unnecessary for us to consider
      Williams’s further complaints about the prior proceeding. In
      particular, we offer no opinion as to the truth or falsity of the
      allegations against Williams. We REVERSE the judgment of the
      district court, and REMAND for further proceedings consistent
      with this opinion.”
      The Parole Board’s partial reopening of Williams’s hearing does not
comply with either the letter or the spirit of this court’s mandate.
      Additionally, according to Texas Department of Criminal Justice
records, Williams’s requested witness Ollen Nugent died in 2005. Williams’s
original parole revocation hearing took place in 2004, but this court did not
rule on his prior habeas petition until 2009. Given that Nugent died in the
interim period between the original hearing and this court’s remand, the

                                        3
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Parole Board’s interpretation of the mandate is illogical. The court could not
have intended that a partial re-hearing in which subpoenas were issued only
for Nugent, Henderson, and Oakley could cure the Morrissey violations that
took place in the prior hearing if one of the three witnesses was deceased and
thus incapable of testifying.2
       We hold that this court’s mandate in its previous opinion was clear in
granting Williams an entirely new parole revocation hearing and that the
Texas Board of Pardons and Paroles did not comply by holding a partial
hearing. Accordingly, we REVERSE the judgment of the district court and
REMAND for further proceedings affording Williams habeas relief unless the
Texas Board of Pardons and Paroles provides a new, full parole revocation
hearing for Williams that fully complies with Morrissey.




       2
          Similarly, we plainly assumed that there was at least a possibility that the matter
giving rise to Williams’s “further complaints” might not be repeated.

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