     Case: 15-20451     Document: 00514823639        Page: 1    Date Filed: 02/05/2019




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

                                                                            FILED
                                    No. 15-20451                      February 5, 2019
                                                                       Lyle W. Cayce
STEVE VIC PARKER, also known as Jerry Wilson,                               Clerk


              Petitioner - Appellant

v.

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

              Respondent - Appellee



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


Before KING, HIGGINSON, and COSTA, Circuit Judges.
PER CURIAM:
      Steve Vic Parker appeals the district court’s dismissal of his habeas
petition as successive. Because we find that Parker’s previous habeas petition
challenged a judgment distinct from the one he challenges in the present
habeas petition, we REVERSE and REMAND.
                                           I.
      In 1991, Steve Vic Parker 1 was convicted in a Texas state court of
unauthorized use of a motor vehicle (“UUMV”) and sentenced to 20 years in


      1  Parker has in various proceedings been referred to as “Jerry Wilson,” his alias.
Because it does not affect the issues on appeal, we use the name “Parker” throughout this
opinion.
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                                    No. 15-20451
the custody of the Texas Department of Criminal Justice (“TDCJ”) with a
maximum discharge date of March 17, 2016. In the years that followed, Parker
was released to mandatory supervision and returned to prison several times,
although the record does not reflect that he was convicted of any crimes during
this time period. That is, until 2010, when, while on mandatory supervision,
Parker was convicted of two counts of theft of less than $1,500, for which he
received two seven-year sentences to run consecutively with the 20-year
UUMV sentence. 2 Following his 2010 conviction, his mandatory supervision on
his 1991 UUMV conviction and sentence was revoked and he returned to
prison.
      In April 2013, Parker filed a 28 U.S.C. § 2254 application (“2013 habeas
petition”) arguing that he had accumulated enough time on his 20-year
sentence for it to expire and his new seven-year sentence to begin. 3 He also
argued that the State violated the Ex Post Facto Clause by refusing to release
him from custody for the 20-year sentence. The district court, considering only
Parker’s Ex Post Facto argument, concluded that TDCJ’s calculation of his
sentence did not violate the Ex Post Facto Clause. It therefore dismissed the
petition with prejudice and denied a certificate of appealability (“COA”). This
court dismissed Parker’s untimely appeal.
      Shortly after Parker filed his 2013 habeas petition, TDCJ incorrectly
recalculated Parker’s sentence to reflect the seven-year sentences as running
concurrently with the 20-year sentence, rather than consecutively, and
released Parker to mandatory supervision. Roughly three months later, TDCJ




      2 Although not entirely clear from the record, it appears that the two seven-year
sentences were to run concurrently with one another.
      3 The parties dispute the precise judgment or judgments challenged by Parker’s 2013

habeas petition. We discuss the matter in detail below.
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                                  No. 15-20451
corrected this error and returned Parker to TDCJ custody via an erroneous-
release warrant.
      In 2015, Parker filed the instant habeas petition. The main thrust of
Parker’s argument was that (1) his two seven-year sentences should have
started as soon as he returned to prison in 2010 and (for reasons unclear) both
his seven-year sentences had ceased to operate or were otherwise void under
various clauses of the U.S. Constitution; and (2) his rearrest and reprocessing
in 2013, as well as the circumstances surrounding them, violated his right to
due process under the Fourteenth Amendment. Upon TDCJ’s motion for
summary judgment, the district court determined that Parker’s petition was
successive and thus required authorization from this court to proceed. The
court therefore granted TDCJ’s motion for summary judgment and dismissed
Parker’s petition without prejudice. It also denied a COA. This court thereafter
granted a COA on the issue of “whether Parker’s § 2254 application was
successive as to the judgments underlying the seven-year theft sentences.”
After the COA had been granted and briefing submitted in this appeal, this
court discovered, and TDCJ confirmed, that Parker had been released to
mandatory supervision on his 2010 theft convictions and sentences.
                                       II.
      The district court dismissed Parker’s challenge to his seven-year
sentences because it determined that his petition was successive. The
Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) requires
authorization from the court of appeals before a habeas petitioner may file an
application that is “second or successive.” 28 U.S.C. § 2244(b)(3). If a second or
successive application is filed in a district court without authorization by the
court of appeals, the district court must dismiss the application. Magwood v.
Patterson, 561 U.S. 320, 331 (2010). An application “is not second or successive
simply because it follows an earlier federal petition.” Crone v. Cockrell, 324
                                        3
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                                       No. 15-20451
F.3d 833, 836 (5th Cir. 2003) (quoting In re Cain, 137 F.3d 234, 235 (5th Cir.
1998)). The Supreme Court has explained that “the phrase ‘second or
successive’ must be interpreted with respect to the judgment challenged,”
rather than the stretch of confinement being served by the petitioner.
Magwood, 561 U.S. at 332-33.
       The parties do not dispute that Parker’s current petition challenges his
two seven-year sentences. The State argues that the current petition is
successive because Parker’s 2013 petition challenged both his 20-year sentence
and his two seven-year sentences. Specifically, the State characterizes Parker’s
2013 petition as challenging “the stacking order in his seven-year theft
sentences.” As the State acknowledges, this analysis is somewhat complicated
by the convoluted nature of Parker’s pleadings. Opaque as his pleadings may
be though, the State’s characterization of Parker’s 2013 petition misses the
mark. Parker’s 2013 petition contended that his 20-year sentence had expired
by the time he filed the petition. 4 Although Parker acknowledges the existence
of the 2010 convictions in this 2013 petition, nowhere therein can we discern
anything resembling a challenge to the validity of those convictions or the
stacking order making the seven-year sentences run consecutively with the 20-
year sentence. Moreover, since we are bound to accord pro se habeas petitions
liberal treatment, we will not strain to find a stray pleading of Parker’s to use
against him. See, e.g., Guidroz v. Lynaugh, 852 F.2d 832, 834 (5th Cir. 1988).
Accordingly, we understand Parker’s 2013 petition to challenge only his 20-
year sentence; his current petition challenging his seven-year sentences
concerns a new judgment and is therefore not successive.




       4 In relevant part, his 2013 petition states: “The appl. has surpassed the maximum
term of his (20) twenty year sentence under this cause that he is currently serving. In direct
violation of the Ex Post Facto Clause and Due Process of Law.”
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      This conclusion is not altered by the fact that, as the district court noted,
Parker “knew the facts necessary to challenge the administration of his
consecutive sentences before he filed his previous federal petition in 2013.” We
have previously considered, and rejected, this approach to successiveness
where separate judgments are challenged. In Hardemon v. Quarterman, 516
F.3d 272 (5th Cir. 2008), the petitioner had been charged in separate
indictments of one count of sexual assault of a child and two counts of
aggravated sexual assault of a child. Id. at 273. He was convicted on all three
counts and given separate sentences for each. Id. In his first federal petition,
Hardemon challenged his conviction for sexual assault of a child, which the
district court rejected on the merits. Id. at 274. In his second petition, he
challenged his conviction of one of the counts of aggravated sexual assault of a
child—undisputedly a separate judgment. Id. The district court rejected the
petition as successive and Hardemon appealed. Id.
      On appeal, we framed the question presented as “whether the
prohibition against successive § 2254 petitions requires a prisoner to challenge
all judgments from a single court in a single habeas petition.” Id. at 273. Prior
to that case, we had held that a habeas petitioner’s second petition was
successive because he “knew of all of the facts necessary to raise [the claim
raised in his second petition] before he filed his initial federal petition.” Crone,
324 F.3d at 837. Seizing on this language, the State in Hardemon argued on
appeal that Hardemon’s petition was similarly successive because he knew the
facts necessary to challenge his conviction of aggravated sexual assault of a
child at the time he filed his first petition. 516 F.3d at 275. We rejected this
argument, finding that the principle espoused in Crone was inapplicable to
Hardemon’s case because Crone involved separate petitions challenging the
same judgment. Id. We then concluded that “Hardemon was permitted, but not
required, to challenge his separate convictions in a single § 2254 petition.” Id.
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                                 No. 15-20451
at 276. Here, as discussed, Parker’s current petition and his 2013 petition
challenge different judgments. The district court therefore erred in concluding
that Parker’s challenge to his 2010 sentence was successive.
      The remainder of Parker’s claims relate to events that took place after
his 2013 release and rearrest. The district court did not consider these claims
in its dismissal of Parker’s petition. Roughly speaking, Parker argues that he
was owed a hearing following his rearrest and that the denial of such a hearing
violated his due-process rights. The State argues that these claims are now
moot because “the only remedy for [such] claims is re-release to mandatory
supervision”—i.e., putting Parker in precisely the position he is in right now.
      We need not reach the question of mootness, however, for our jurisdiction
is otherwise lacking. A COA in this case was granted only as to the
successiveness of Parker’s challenge to his seven-year sentence, not his due-
process challenge related to the circumstances surrounding his rearrest. This
court has jurisdiction to consider only the issues specified in a COA. See 28
U.S.C. § 2253(c)(1)(A); Sixta v. Thaler, 615 F.3d 569, 573 (5th Cir. 2010).
Parker has not asked this court to expand the scope of the already-granted
COA, and in his prior request to this court for a COA, Parker did not in any
way allude to the due-process issues he now raises in his briefing. He has
therefore waived any request for a COA on that issue, and we are without
jurisdiction to consider his remaining claims. Hughes v. Johnson, 191 F.3d 607,
613 (5th Cir. 1999) (“Issues not raised in the brief filed in support of [a] COA
application are waived”).
                                      III.
      For the foregoing reasons, we REVERSE the judgment of the district
court and REMAND for proceedings consistent with this opinion.




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