     Case: 18-70031     Document: 00514744147        Page: 1    Date Filed: 12/02/2018




          IN THE UNITED STATES COURT OF APPEALS
                   FOR THE FIFTH CIRCUIT


                                    No. 18-70031                     United States Court of Appeals
                                                                              Fifth Circuit

                                                                            FILED
                                                                     December 2, 2018
JOSEPH C. GARCIA,
                                                                       Lyle W. Cayce
              Plaintiff – Appellant,                                        Clerk


v.

CARMELLA JONES; ED ROBERTSON; DAVID GUTIERREZ; FRED
RANGEL; BRIAN LONG; FRED SOLIS; JAMES LAFAVERS; GREGORY W.
ABBOTT,

              Defendants – Appellees.




                  Appeal from the United States District Court
                       for the Southern District of Texas


Before DENNIS, ELROD, and HIGGINSON, Circuit Judges.
PER CURIAM:
      Joseph Garcia was sentenced to death by a Texas jury and is scheduled
for execution on December 4, 2018. 1 Garcia filed a complaint under 42 U.S.C.
§ 1983 against the Texas Governor and the members of the Texas Board of
Pardons and Paroles (the Board) alleging that the Board’s composition violated
his Eighth and Fourteenth Amendment rights and seeking declaratory and
injunctive relief, including a preliminary injunction staying his execution. The



      1  We previously denied Garcia a certificate of appealability in his federal habeas
petition. Garcia v. Davis, 704 F. App’x 316, 319 (5th Cir. 2017).
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district court denied Garcia’s motion for preliminary injunction and dismissed
his § 1983 complaint with prejudice pursuant to 28 U.S.C. § 1915A. Garcia
appealed. We AFFIRM the district court’s judgment and DISMISS Garcia’s
motion for stay of execution as moot.
                                             I
      Garcia filed an Application for Commutation of Death Sentence to Lesser
Penalty with the Texas Board of Pardons and Paroles on November 8, 2018.
Three weeks later, Garcia filed this § 1983 action in the district court, alleging
that the Board as currently constituted violates the requirement under Texas
Government Code § 508.032(a) that the Board be “representative of the general
public” because six of the seven Board members are former employees of the
Texas Department of Criminal Justice or former law enforcement officers and
six of the seven Board members are male. According to Garcia, this in turn
violates his Fourteenth Amendment due process right to a fair clemency
proceeding, and executing him under these circumstances would violate his
Eighth Amendment right to be free from cruel and unusual punishment.
Garcia simultaneously moved for a preliminary injunction to bar the Board
from making a recommendation on his clemency request. 2 He also asked the
district court to stay his execution to allow time to “hear the allegations in his
[c]omplaint.”
      The district court denied Garcia’s motion for preliminary injunction on
two grounds: (1) Garcia was dilatory in bringing his § 1983 action so as to delay
his execution; and (2) the case had no likelihood of success on the merits
because Garcia had no constitutional right to clemency or any particular
procedures in the evaluation of his clemency request.               Moreover, because
Garcia had at most alleged a violation of Texas law and § 1983 provides a


      2   The Board has since voted not to recommend a commutation of sentence.
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remedy only for violations of the Constitution and laws of the United States,
the district court dismissed Garcia’s complaint for failure to state a cognizable
claim. See 28 U.S.C. § 1915A(b)(1). Garcia filed an appeal in this court and
seeks a stay of his execution.
                                       II
      Though we lack jurisdiction to consider a claim requesting that we order
the Board to recommend clemency, we have jurisdiction to consider challenges
to state clemency proceedings when the relief the party seeks “will not spell
speedier release.”   Young v. Gutierrez, 895 F.3d 829, 831 (5th Cir. 2018)
(finding jurisdiction over a challenge to state clemency proceedings that would
“result only in a stay until [the § 1983 claimant] is afforded a clemency
proceeding commensurate with the Constitution”).
      We review a district court’s denial of a preliminary injunction for an
abuse of discretion. Jones v. Tex. Dep’t of Criminal Justice, 880 F.3d 756, 759
(5th Cir. 2018). “Factual findings are reviewed for clear error, while legal
conclusions are reviewed de novo.” Id. (quoting Moore v. Brown, 868 F.3d 398,
402 (5th Cir. 2017)). We review a dismissal under 28 U.S.C. § 1915A(b)(1) for
failure to state a claim de novo, applying the same plausibility standard
applicable to Federal Rule of Civil Procedure 12(b)(6) dismissals. Legate v.
Livingston, 822 F.3d 207, 209–10 (5th Cir. 2016).
                                       III
      “To obtain a preliminary injunction, a movant must establish: ‘(1) a
substantial likelihood of success on the merits, (2) a substantial threat of
irreparable injury if the injunction is not issued, (3) that the threatened injury
if the injunction is denied outweighs any harm that will result if the injunction
is granted, and (4) that the grant of an injunction will not disserve the public
interest.’” Jones, 880 F.3d at 759 (quoting Byrum v. Landreth, 566 F.3d 442,


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445 (5th Cir. 2009)). We agree with the district court that Garcia has failed to
satisfy the first prong of this analysis. 3
       Garcia does not assert a constitutional entitlement to clemency, and it is
well-established that no such right exists.               See Conn. Bd. of Pardons v.
Dumschat, 452 U.S. 458, 464 (1981) (“[A]n inmate has ‘no constitutional or
inherent right’ to commutation of his sentence.” (quoting Greenholtz v. Inmates
of Neb. Penal & Corr. Complex, 442 U.S. 1, 7 (1979))); Ohio Adult Parole Auth.
v. Woodard, 523 U.S. 272, 280–82 (1998) (applying Dumschat’s reasoning to a
death row inmate’s petition for clemency).                  Instead, Garcia asserts an
entitlement under due process to minimal procedural safeguards in clemency
proceedings.
       In Faulder v. Texas Board of Pardons and Paroles, 178 F.3d 343 (5th Cir.
1999), we held that allegations that “the Board . . . violated state law and its
own regulations” was not an example of the type of “extreme situation[]” that
Justice O’Connor declared a potential constitutional violation in her
concurring opinion in Woodard. 178 F.3d at 344–45 (citing Woodard, 523 U.S.
at 289 (O’Connor, J., concurring)); see also Tamayo v. Perry, 553 F. App’x 395,
402 (5th Cir. 2014) (holding no procedural due process violation where Board
members allegedly communicated with interested parties in violation of the
Board’s own rules). Similarly, Garcia’s argument that the Board’s composition
violates Texas law does not assert an arbitrary clemency proceeding akin to
the flip of a coin or a complete denial of access to the clemency process. See
Faulder, 178 F.3d at 344 (citing Woodard, 523 U.S. at 289 (O’Connor, J.,
concurring)). Garcia’s allegations do not reflect the complete lack of process


       3  The district court also held and Appellees argue on appeal that the dilatory nature
of Garcia’s § 1983 action provides an alternative basis for denying his motion for a
preliminary injunction. Because we agree with the district court’s conclusion that Garcia
failed to show a substantial likelihood of success on the merits, we need not reach the district
court’s untimeliness ruling.
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that we have held may violate the minimal due process protections that exist
in the clemency context. See id. Accordingly, the district court did not err in
denying Garcia’s motion preliminary injunction.
      For the same reason—because Garcia has not alleged a violation of the
Constitution or laws of the United States—the district court correctly
dismissed Garcia’s § 1983 complaint on the merits. See Sw. Bell Tel., LP v.
City of Houston, 529 F.3d 257, 260 (5th Cir. 2008) (noting that § 1983 “provides
a remedy for the violation . . . of rights secured under the Constitution and
laws of the United States” (quoting Kirchberg v. Feenstra, 708 F.2d 991, 1000
(5th Cir. 1983))).
                                      ***
      For these reasons, we AFFIRM the district court’s dismissal of Garcia’s
§ 1983 action and denial of his motion for a preliminary injunction and
dismissal of his § 1983 action with prejudice. Because Garcia is not entitled
to an injunction or to succeed on the merits, we DISMISS his motion for stay
of execution as moot.




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