     Case: 16-20626      Document: 00514470998         Page: 1    Date Filed: 05/14/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                                    No. 16-20626                                FILED
                                  Summary Calendar                          May 14, 2018
                                                                           Lyle W. Cayce
                                                                                Clerk
EARL MCBRIDE, JR.,

                                                 Petitioner–Appellant,

v.

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                                 Respondent–Appellee.


                  Appeals from the United States District Court
                       for the Southern District of Texas
                             USDC No. 4:16-CV-2012


Before JOLLY, OWEN, and HAYNES, Circuit Judges.
PER CURIAM: *
       Petitioner Earl McBride, Jr., Texas inmate # 315371, was convicted of
capital murder in 1980 and sentenced to a life term of imprisonment. In 2016,
McBride filed a 28 U.S.C. § 2254 petition asserting constitutional claims based
on his factual allegation that he had been paroled in 2014 but his parole was
improperly revoked before he was released. He specifically denied that he was



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 16-20626    Document: 00514470998     Page: 2   Date Filed: 05/14/2018


                                 No. 16-20626

challenging any discretionary decision to grant or deny him parole. Without
ordering a response and without the benefit of any state court records, the
district court dismissed McBride’s claims as a meritless challenge to a denial
of parole. This court granted a certificate of appealability as to “whether the
district court correctly dismissed [McBride’s] constitutional claims as
predicated on a denial, rather than a revocation, of parole.”
      Denial of parole and revocation of parole are subject to different
constitutional standards. See Morrissey v. Brewer, 408 U.S. 471, 482-84 (1972);
Jennings v. Owens, 602 F.3d 652, 657 (5th Cir. 2010); Orellana v. Kyle, 65 F.3d
29, 32 (5th Cir. 1995). The district court did not analyze McBride’s claims
under the standard applicable to revocation of parole and the limited record
does not conclusively establish McBride’s parole status. Merits briefing has
not clarified matters.    Accordingly, we conclude that the district court
misconstrued the basis of McBride’s constitutional claims and prematurely
dismissed his § 2254 petition. See Kiser v. Johnson, 163 F.3d 326, 328 (5th Cir.
1999). We therefore vacate the judgment and remand for further proceedings
consistent with this opinion. McBride’s motion for appointment of counsel,
construed as a motion for reconsideration of the denial of the original motion
to appoint counsel, is denied without prejudice to reurging the motion on
remand.
      JUDGMENT        VACATED        AND     REMANDED;          MOTION      FOR
APPOINTMENT OF COUNSEL DENIED WITHOUT PREJUDICE.




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