     Case: 13-60348    Document: 00512791018        Page: 1   Date Filed: 10/02/2014




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

                                     No. 13-60348                          FILED
                                                                     October 2, 2014
                                                                      Lyle W. Cayce
JEFFERY WAYNE WANSLEY,                                                     Clerk

                                             Petitioner–Appellee
v.

MISSISSIPPI DEPARTMENT OF CORRECTIONS; EMMITT SPARKMAN,

                                             Respondents–Appellants




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


Before DAVIS, DENNIS, and COSTA, Circuit Judges.
GREGG COSTA, Circuit Judge:
      The Mississippi Department of Corrections denied Jeffery Wayne
Wansley a parole hearing based on its view that he received an “enhanced
penalty,” which renders a prisoner ineligible for parole in Mississippi. In
seeking federal habeas corpus relief, Wansley argues that his sentence was not
enhanced, and that the denial of a hearing violated state law and therefore
deprived him of a liberty interest protected by the Due Process Clause of the
Fourteenth Amendment. The district court granted his petition, ordering a
parole hearing. On appeal, Respondents argue that the discretionary nature
of Mississippi’s parole regime means there is no liberty interest that gives rise
to a federal constitutional issue.
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                                              I.
       In 1999, Wansley was convicted of selling cocaine within 1,500 feet of a
church in Mississippi state court. When Wansley was charged and convicted,
the maximum sentence for selling cocaine was 30 years. Miss. Code Ann. § 41-
29-139(b) (1999). That maximum sentence could be doubled, “in the discretion
of the court,” if the sale took place within 1,500 feet of a church. Miss. Code
Ann. § 41-29-142(1). Although his conviction could have subjected him to a 60-
year sentence, Wansley received 30 years. 1
       In Mississippi, prisoners convicted of “felonies with enhanced penalties”
are not eligible for parole. Miss. Code Ann. § 47-7-3(g) (2008). 2 At least twice
in 2009, the Mississippi Department of Corrections (MDOC) printed “inmate
time sheets” indicating that Wansley was eligible for parole. However, on July
29, 2009, MDOC printed a time sheet showing that Wansley had received an
enhanced penalty and that he did not qualify for parole. 3
       Wansley sought relief through MDOC’s Administrative Remedy
Program.      He argued that since his 30-year sentence did not exceed the
statutory maximum for selling cocaine absent the enhancement, MDOC had
erred in finding that he received an enhanced sentence. MDOC responded that
Wansley was ineligible because, regardless of the sentence he received, a jury
found him guilty of selling cocaine within 1,500 feet of a church. The record




       1  At oral argument, Respondents’ attorney stated that although Wansley is ineligible
for parole, “for every thirty days he serves he gets a thirty day credit on his sentence,” and
that his expected date of release as of oral argument was in 2017, with that release date
becoming earlier if he continues to receive the two-for-one credit.
        2 The relevant provision is now contained in section 47-7-3(f) of the Mississippi Code.
        3 Respondents contend that the revised time sheet was the result of changes to

MDOC’s computer system that allowed it to account for prisoners’ “enhanced status” after
changes in state law allowed certain prisoners serving non-enhanced sentences to become
eligible for parole.
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                                No. 13-60348
does not reveal whether Wansley proceeded beyond the first step of the
program.
      Wansley then filed a “motion for clarification” in the Mississippi
Supreme Court, requesting that the court “clarify this sentence discrepancy.”
The court denied his motion, stating only that it was “not well taken.” Wansley
then filed a similar motion in Mississippi trial court; it was denied on the
ground that the court lacked jurisdiction to consider a petition for
postconviction relief without the Mississippi Supreme Court’s approval.
      Wansley then filed a pro se habeas corpus petition in federal court,
claiming that he was eligible for parole under Mississippi law. Respondents
moved to dismiss because (1) Wansley’s claim did not allege a violation of
federal law cognizable in federal habeas corpus review, and (2) Wansley’s
sentence was enhanced by virtue of his conviction of selling cocaine within
1,500 feet of a church.
      The district court appointed counsel to represent Wansley.            His
subsequent briefs argued that, by denying him a parole hearing to which he
was entitled under Mississippi law, MDOC deprived him of a liberty interest
in violation of the Due Process Clause.
      The magistrate judge recommended ruling against Wansley, finding that
Mississippi law did not create a liberty interest in parole that implicated due
process protections and, in the alternative, that the denial of relief by the
Mississippi Supreme Court was not unreasonable. The district court did not
adopt the magistrate judge’s recommendation. Instead, it first determined
that Wansley had exhausted his remedies by “fairly present[ing] his issue to
the Mississippi Supreme Court.” It then addressed Wansley’s eligibility for a
parole hearing under Mississippi law. Citing a Mississippi Court of Appeals
decision, see Pearson v. State, 64 So. 3d 569, 577 (Miss. Ct. App. 2011), the
district court concluded that because the sentencing judge in Wansley’s case
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                                       No. 13-60348
had declined to exceed the nonenhanced statutory maximum, Wansley had not
received an enhanced sentence and was therefore eligible for a parole hearing.
       The     district   court    then    turned     to   the    constitutional     issues.
Acknowledging that Mississippi law does not create a constitutionally
protected liberty interest in parole itself because parole is discretionary, it held
that Wansley nonetheless had a constitutional right to a parole hearing.
Relying on Hicks v. Oklahoma, 447 U.S. 343 (1980), it found that Wansley “has
a liberty interest in having MDOC compute his sentence in accordance with
the sentencing authority’s exercise of discretion,” and that he was deprived of
that liberty interest when he was denied a hearing. It also suggested that
Wansley has a right, under the Equal Protection Clause, to have his sentence
computed in the same way as similarly situated prisoners, although it appears
not to have conclusively determined whether this right was violated. 4 The
district court thus granted the petition and ordered a parole hearing. This
court stayed the order pending appeal.
                                             II.
       A federal court may issue a writ of habeas corpus only if a state prisoner
“is in custody in violation of the Constitution or laws or treaties of the United
States.” 28 U.S.C. § 2254(a). A petition for federal habeas corpus relief based
on an argument that state courts are incorrectly applying their own law thus
is not a basis for relief. 5 See Beazley v. Johnson, 242 F.3d 248, 261 (5th Cir.
2001) (“[T]he proper interpretation of state law is not cognizable in federal



       4 The district court only observed that “[i]f other inmates with non-enhanced sentences
were deemed eligible for parole, . . . Wansley will not have been treated equally under the
law,” and noted that one offender on MDOC’s website in a situation like Wansley’s appeared
to have been released on parole.
       5 We consider the merits of Wansley’s constitutional claim even though we have doubts

that the federal claims were exhausted because Respondents have waived the exhaustion
defense. McGee v. Estelle, 722 F.2d 1206, 1214 (5th Cir. 1984).
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habeas proceedings.”).    State laws, however, may create liberty interests
protected by the Due Process Clause. See Kentucky Dep’t of Corr. v. Thompson,
490 U.S. 454, 460–61 (1989). In those situations, federal due process law sets
the minimum procedures that are required before the state can deprive a
person of that liberty interest. See Wolff v. McDonnell, 418 U.S. 539, 557
(1974). When a state has a system of mandatory parole, such a liberty interest
exists that implicates the procedural guarantees of the Due Process Clause.
See Bd. of Pardons v. Allen, 482 U.S. 369, 373–74 (1987).
      Parole, however, is discretionary in Mississippi, so prisoners in the state
have no liberty interest in parole. See Miss. Code Ann. §§ 47-7-3, 47-7-17;
Smith v. Mississippi Parole Bd., 478 F. App’x 97, 99 (5th Cir. 2012); Irving v.
Thigpen, 732 F.2d 1215, 1217 (5th Cir. 1984). Wansley recognizes this, and
argues instead that Mississippi law creates a liberty interest in a parole
hearing.
      But “an expectation of receiving process is not, without more, a liberty
interest protected by the Due Process Clause.” See Olim v. Wakinekona, 461
U.S. 238, 250 n.12 (1983); accord Ladd v. Stephens, 748 F.3d 637, 644 (5th Cir.
2014) (holding that it is “where there is ‘a significant substantive liberty
interest [at stake]’” that a state law “entitles the petitioner to a set of core
procedural due process protections”); Elliott v. Martinez, 675 F.3d 1241, 1245
(10th Cir. 2012) (noting, regarding the Due Process Clause, that “the protected
interests are substantive rights, not rights to procedure”).      We may only
question states’ procedures when they are “fundamentally inadequate to
vindicate [a] substantive right[].” Dist. Attorney’s Office for Third Judicial
Dist. v. Osborne, 557 U.S. 52, 69 (2009).
      Accordingly, when a prisoner “has no liberty interest in obtaining parole
. . . he cannot complain of the constitutionality of procedural devices attendant
to parole decisions.” Orellana v. Kyle, 65 F.3d 29, 32 (5th Cir. 1995); see also
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Breshears v. Garrett, 143 F. App’x 570, 572 (5th Cir. 2005) (affirming district
court’s dismissal of claim as frivolous because “Texas prisoners had ‘no
constitutionally protected right to parole or a parole hearing’”).           This is
consistent with the way our sister circuits have addressed claims from state
prisoners seeking to establish a constitutional right to a parole hearing when
there is no state-created liberty interest in parole itself. See, e.g., Utley v. Rose,
201 F.3d 442, 1999 WL 1252880, at *1 (6th Cir. 1999) (unpublished table
decision) (“Since Utley has neither an inherent constitutional right to parole
nor a protected liberty interest created by mandatory state parole laws, he
cannot maintain a due process claim based upon the denial of a parole
hearing.”); Brandon v. D.C. Bd. of Parole, 823 F.2d 644, 648 (D.C. Cir. 1987)
(“Appellant’s claim that he has a constitutionally protected liberty interest in
a reparole hearing and thus a due process right to have the Board adhere to its
regulations lacks support in law or logic.”); Shango v. Jurich, 681 F.2d 1091,
1101 (7th Cir. 1982) (“If a right to a hearing is a liberty interest, and if due
process accords the right to a hearing, then one has interpreted the Fourteenth
Amendment to mean that the state may not deprive a person of a hearing
without providing him with a hearing. Reductio ad absurdum.”). The absence
of a federal issue in Wansley’s situation is revealed by the following incongruity
that would result from granting his petition: state law would serve as the
source of both the liberty interest and the process due (that is, the parole
hearing which is required under Wansley’s reading of state law). The latter,
however should be a matter of federal law once a state-created liberty interest
is at stake.
      Hicks v. Oklahoma, on which the district court relied, does not establish
that there is a liberty interest in a parole hearing. That case involved the
question of what the Due Process Clause required after a defendant was
sentenced pursuant to a 40-year mandatory sentencing statute later held to be
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                                     No. 13-60348
unconstitutional. 447 U.S. at 345. A 40-year sentence, or sentence of any
length for that matter, undoubtedly implicates a defendant’s liberty interest—
one that arises from the federal constitution itself without recourse to the
“state-created liberty interest” inquiry. Hicks was therefore only concerned
with the second step of what process is due once a liberty interest is implicated.
      Whether or not Wansley is entitled to a parole hearing as a matter of
Mississippi law, the discretionary nature of the state’s parole system ends the
federal due process inquiry. 6 Any relief he is entitled to under Mississippi law
must be obtained in the courts of that state. We therefore REVERSE the
judgment of the district court and DISMISS Wansley’s petition.




      6  Although the district court noted the possibility that Wansley may have an equal
protection claim, it does not appear to have been the basis for its ruling and Wansley does
not press the argument on appeal.
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