                                                                     United States Court of Appeals
                                                                              Fifth Circuit
                                                                             F I L E D
                              REVISED MAY 31, 2005
                                                                                May 13, 2005
                  IN THE UNITED STATES COURT OF APPEALS                 Charles R. Fulbruge III
                                                                                Clerk
                             FOR THE FIFTH CIRCUIT



                                    No. 03-50743



      TONY RAY COLEMAN,

                                                     Petitioner-Appellant,

                                        versus

      DOUG DRETKE, DIRECTOR, TEXAS
      DEPARTMENT OF CRIMINAL JUSTICE,
      CORRECTIONAL INSTITUTIONS DIVISION,

                                                     Petitioner-Appellant.


                  Appeal from the United States District Court for
                           the Western District of Texas
         _________________________________________________________

                  ON PETITION FOR REHEARING EN BANC

Before REAVLEY, BENAVIDES and PRADO, Circuit Judges.

PER CURIAM:

      Because less than a majority of judges in active service have voted in favor of

granting the petition for en banc rehearing, the petition is denied. To avoid



                                          1
confusion about our decision, we think it necessary that we write further to correct

the mistakes of the accompanying dissent on the record and the law.

                                    I. The Record

      Tony Ray Coleman has never been convicted of a sex offense or otherwise

found to be a sex offender. He did not “stipulate” to sex offender conditions upon

his release on January 17, 2001, as the dissent states. The parole board imposed

those conditions a month after he had been released without allowing Coleman any

opportunity to object. The conditions took by action of the parole board and

Coleman was then required to acknowledge their imposition. The dissent repeats a

new and unexplained assertion from the state’s petition for rehearing that the

requirement for registration as a sex offender has been dropped. Coleman was

required by the board and his parole officer to register as a sex offender, and did

register with the Austin police. Coleman remains imprisoned because he failed to

submit to sex offender therapy.

      The dissent states that we do not challenge the conduct alleged in Coleman’s

sexual assault indictment. As the state has never established the truth of those

allegations in a criminal trial or other proceeding, we have no basis for assessing

their veracity, and to assume them to be either true or false would be improper.

      The dissent maintains that it was “pure conjecture” for the panel to rely on

                                           2
the website of the Texas Council on Sex Offender Treatment to determine that the

state’s sex offender treatment is behavior modifying. Coleman cited to and relied on

the same website in his brief and no contradiction was made by the state to that or

to Coleman’s characterization of sex offender therapy, either in its appellate brief or

at oral argument. The attempt to object for the first time on petition for rehearing

comes late. See Arenson v. S. Univ. Law Ctr., 53 F.3d 80, 81 (5th Cir. 1995).

Furthermore, we fail to see any merit to an objection to the panel taking judicial

notice of the state agency’s own website. As the panel explained, the Texas

Council is charged by statute with developing strategies and standards for the

treatment of sex offenders in Texas. TEX. OCC. CODE § 110.151 (Vernon 2004).

There is no support in this record for the assertion in the state’s petition for

rehearing that the treatment on which Coleman’s release was conditioned is

anything other than the intrusive and behavior-modifying treatment outlined on the

website.

      The panel relied on the invasive and behavior-modifying nature of sex

offender therapy. We said that, “due to its highly invasive nature, Texas’s sex

offender therapy program is ‘qualitatively different’ from other conditions which

may attend an inmate’s release.” Coleman v. Dretke, 395 F.3d 216, 223 (5th Cir.

2004). The dissent erroneously states that we have required pre-deprivation process

                                            3
whether or not invasive physical treatment is contemplated.

      The dissent erroneously treats Coleman’s case as a mere challenge to the

nature of his confinement rather than a claim for release, as if mandatory supervision

is a level of control different from parole. Under Texas law, mandatory supervision

is statutorily mandated when the inmate has accrued a certain level of good conduct

time, and the parole board has less discretion in denying an inmate’s release on

mandatory supervision than on parole. TEX. GOV’T CODE §§ 508.001(5),

508.001(6), 508.141, 508.147(a) (Vernon 2004); Ex parte Retzlaff, 135 S.W.3d 45,

48-49 (Tex. Crim. App. 2004). The condition that Coleman reside in a halfway

house until employed is also immaterial. The condition, like all conditions of

release, is a constraint on the freedom of the releasee, but it does not alter the

“quantum change in the level of custody” that occurs when an individual is allowed

to live outside prison walls, whether on parole or mandatory supervision. See

Wilkinson v. Dotson, __ U.S. __, 125 S.Ct. 1242, 1250 (2005) (Scalia, J.,

concurring).

                                      II. The Law

      The dissent argues that the panel mis-applied and extended Vitek v. Jones,

445 U.S. 480 (1980). And it argues that the panel failed to adhere to the deferential

standard of review applicable to state habeas proceedings under the Anti-terrorism

                                            4
and Effective Death Penalty Act (AEDPA).

      According to the dissent, Coleman failed to show that his situation is in line

with the material facts of Vitek by establishing that the conditions placed on his

release on mandatory supervision caused stigma and involved intrusive behavior-

modification treatment. We have answered that contention above. The new

argument that registration has been dropped from the case does not change matters.

Vitek does not require publication to establish stigma. In fact, the plaintiff in Vitek

had not been required to register the fact of his classification as mentally ill, and the

Court nowhere indicated that his treatment providers would not keep his records

confidential. See Vitek, 445 U.S. at 483-86 & 492. The Court nevertheless found it

“indisputable” that commitment to the mental hospital alone could cause “adverse

social consequences to the individual” and stated that “[w]hether we label this

phenomena ‘stigma’ or choose to call it something else[,] we recognize that it can

occur and that it can have a very significant impact on the individual.” Id. at 492

(internal quotation marks omitted). Whether or not Coleman must now list his name

on an official roster, by requiring him to attend sex offender therapy, the state

labeled him a sex offender—a label which strongly implies that Coleman has been

convicted of a sex offense and which can undoubtedly cause “adverse social

consequences.” See id.; Neal v. Shimoda, 131 F.3d 818, 829 (9th Cir. 1997) (“We

                                            5
can hardly conceive of a state’s action bearing more ‘stigmatizing consequences’

than the labeling of a prison inmate as a sex offender.”); Vander Zee v. Reno, 73

F.3d 1365, 1369 (5th Cir. 1996) (stating that a statement causes stigma if it is both

false and implies that the plaintiff is guilty of serious wrongdoing). The stigma

aspect of the case is thus not mooted by the state’s decision to remove Coleman

from its sex offender registry. The facts of the present case are in line with Vitek’s

stigma element.

      As explained above, the state’s imposition of sex offender status and therapy

as conditions of Coleman’s release fits squarely within the material facts of Vitek,

and the panel’s decision was thus a proper exercise of deference under AEDPA.

The dissent claims that application of Vitek to sex offender conditions cannot be

clearly established under AEDPA because courts have found that the law in this

area is not clearly established for purposes of qualified immunity. To support this

argument, the dissent states that the AEDPA standard and the qualified immunity

standard are logically similar. The dissent’s reliance on qualified immunity analysis

is misplaced. Habeas law and the law of qualified immunity are “doctrinally

distinct.” Williams v. Taylor, 529 U.S. 362, 380 n.12 (2000) (Stevens, J.). For

qualified immunity purposes, law is clearly established if it would be clear to a

reasonable official that her conduct was unlawful in the situation she confronted.

                                           6
Saucier v. Katz, 533 U.S. 194, 202 (2001). For AEDPA purposes, clearly

established federal law is “whatever would qualify as an old rule under our Teague

jurisprudence,” as long as the old rule was decided by the Court. Williams, 529

U.S. at 412. Under Teague, a new rule is one that “breaks new ground or imposes a

new obligation on the States or the Federal Government” or that is “not dictated by

precedent existing at the time the defendant’s conviction became final.” Teague v.

Lane, 489 U.S. 288, 301 (1989) (emphasis in original). The two standards thus

require distinct analyses and cannot be conflated merely because they employ

common terminology. Williams, 529 U.S. at 380 n.12 (Stevens, J.) (“We are not

persuaded by the argument that because Congress used the words ‘clearly

established law’ and not ‘new rule,’ it meant in [28 U.S.C. § 2254(d)(1)] to codify

an aspect of the doctrine of executive qualified immunity rather than Teague’s

retroactivity bar. . . . Congress had Teague—and not any unrelated area of our

jurisprudence—specifically in mind in amending the habeas statute. . . . We will not

assume that in a single subsection of an amendment entirely devoted to the law of

habeas corpus, Congress made the anomalous choice of reaching into the doctrinally

distinct law of qualified immunity[.]”) (emphasis added). Vitek imposed an

obligation on the states to provide process before imposing stigmatizing

classifications and concomitant behavior modification therapy on individuals in their

                                          7
custody. The panel opinion does nothing more.

      The dissent implies that the Supreme Court’s decision in Connecticut

Department of Public Safety v. Doe, 538 U.S. 1 (2003), illustrates the Court’s

unwillingness to afford due process protection to “sex offenders”—a term the

dissent appears to define as anyone who has been charged with a sex offense, even

if never convicted on that charge. As the panel opinion noted, Doe is

distinguishable. Coleman, 395 F.3d at 223 n.30. First, the Doe plaintiff challenged

sex offender registration alone—the case did not involve behavior modification

therapy, and thus fell outside Vitek’s holding. Second, the plaintiff sought a hearing

to determine his current dangerousness and not his status as a sex offender—he had

been convicted of an offense enumerated in the registration statute. Because

application of the registration statute turned on conviction rather than current

dangerousness, the Court found that the plaintiff was not entitled to the hearing he

sought regardless of whether the statute deprived him of a liberty interest; whether

or not the plaintiff was currently dangerous was immaterial under the statutory

scheme. Doe, 538 U.S. at 7. The Court emphasized that the plaintiff in Doe had

been convicted of an enumerated offense, and thus “ha[d] already had a

procedurally protected opportunity to contest.” Id.; see also Gwinn v. Awmiller,

354 F.3d 1211, 1223-24 & n.6 (10th Cir. 2004) (holding that summary judgment

                                           8
was inappropriate on a procedural due process claim brought by an individual never

convicted of a sex offense based on the state’s requirement that he register as a sex

offender upon release from prison, and stating that “Doe . . . does not foreclose this

due process claim” because the plaintiff, unlike the plaintiff in Doe, had not been

convicted of a sex offense and alleged that he had had no other procedure through

which to contest). In the present case, we have a petitioner who has never been

convicted of an offense enumerated in Texas’s registration statute who challenges

not only the state’s imposition of sex offender status on him but also its requirement

that he undergo invasive behavior-modification therapy. On those facts, Vitek, and

not Doe, is the relevant Supreme Court authority.

      Finally, the dissent suggests that Coleman was required to bring his case

under 42 U.S.C. § 1983 as a challenge to his conditions of confinement rather than

as a habeas claim seeking his release. In so arguing, the dissent implies that release

from prison to mandatory supervision—the remedy Coleman seeks—is merely a

change in the condition of Coleman’s confinement rather than a release from

custody for habeas purposes. We have answered that above, but it is well

established that release from physical confinement in prison constitutes release from

custody for habeas purposes, even though the state retains a level of control over the

releasee. Preiser v. Rodriguez, 411 U.S. 475, 487-88 (1973) (stating that suits

                                          9
attacking the duration of physical confinement are within the core of habeas corpus);

see Malchi v. Thaler, 211 F.3d 953, 957-58 (5th Cir. 2000) (holding, in a habeas

case, that Texas’s pre-1996 mandatory supervision scheme created a constitutional

expectancy in early release, but denying relief where the connection between the

alleged injury and the timing of petitioner’s release was too speculative); Retzlaff,

135 S.W.3d at 48-49 (holding, in a habeas case, that Texas’s post-1996 mandatory

supervision scheme creates a liberty interest in early release).

      Even if Coleman’s challenge could be viewed as a condition of confinement

case, the dissent’s argument that he must sue under § 1983 is premised on the notion

that § 1983 is the exclusive avenue by which to attack conditions of confinement.

While the Supreme Court has held that certain claims must be brought under the

habeas statute rather than § 1983, neither the Supreme Court nor this court has held

that certain claims must be brought under § 1983 rather than habeas. Docken v.

Chase, 393 F.3d 1024, 1030 n.6 (9th Cir. 2004); see Preiser, 411 U.S. at 499. In

Preiser, the Court held that habeas is exclusive of § 1983 in certain situations

because the habeas statute is more specific than § 1983. Preiser, 411 U.S. at 489-

90. Preiser’s rationale does not support the proposition that the more general §

1983 should be exclusive of the more specific habeas in some situations. See

Preiser, 411 U.S. at 504 (Brennan, J., dissenting) (“[E]ven under the [majority]’s

                                          10
approach, there are undoubtedly some instances where a prisoner has the option of

proceeding either by petition for habeas corpus or by suit under § 1983.”).

                                   III. Conclusion

      For the reasons given in the panel decision, Coleman v. Dretke, 395 F.3d 216

(5th Cir. 2004), and because the sexual offender conditions of Coleman’s mandatory

supervision impacted his liberty interest and were imposed without due process, the

revocation of his release on mandatory supervision is set aside.

      The petition for rehearing is denied. The mandate shall issue instanter,

remanding to the district court with instructions to issue the writ to order Coleman’s

release under its original terms unless the state promptly conducts further

proceedings justifying Coleman’s confinement pursuant to state law and consistent

with the opinion of this court.




                                          11
EDITH H. JONES, Circuit Judge, with whom JOLLY, SMITH, BARKSDALE,

GARZA, DEMOSS, and CLEMENT, Circuit Judges, join, dissenting from the

denial of rehearing en banc:

               Because this habeas decision threatens serious interference with

Texas’s treatment of sex offenders, and potentially of other parolees who are now

required to undergo treatment or counseling, the case should have been reheard en

banc. On the record he advanced, Coleman should not receive habeas relief

entitling him to a hearing before he undergoes mandatory sex offender counseling.

               The panel seriously erred on two fronts. First, it has extended liberty

interest protection to Coleman and other sex offenders without Supreme Court

imprimatur. Compare Connecticut Dep’t of Pub. Safety v. Doe, 538 U.S. 1, 8, 123

S. Ct. 1160, 1165 (2003) (explicitly refusing to decide whether sex a offender

registration law violates a registrant’s liberty interest). Second, although couched as

holding that the state courts’ ruling was “contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the Supreme Court

of the United States,” 28 U.S.C. § 2254(d)(1), the panel decision misapplied

AEDPA and Teague v. Lane1 by making a new rule of law in a habeas case.



      1
          489 U.S. 288, 109 S. Ct. 1060 (1989).

                                           12
             In a novel substantive holding for this circuit, the panel concluded that

Texas violated Coleman’s procedural due process rights when it imposed sex

offender registration and therapy requirements without giving him advance notice

and the opportunity for a hearing on that specific issue.2 The panel cites numerous

Supreme Court cases, but none is controlling. The panel relies most heavily on

Vitek v. Jones, 445 U.S. 480, 100 S. Ct. 1254 (1980), in which the Court held that a

prisoner has a constitutionally protected liberty interest in not being subjected,

without pre-deprivation process, to an involuntary mental health commitment, if it

entails both significant social stigma and mandatory behavior modification

programs. Id. at 492-94, 100 S. Ct. at 1263-64. The Court noted, however, that


      2
        While on parole for burglary, Coleman was indicted for aggravated sexual
assault of a child and indecency with a child by contact; specifically, for sexually
assaulting a twelve-year-old, mentally retarded girl. R. 282. Although the panel
now attempts to question this reading of the record in its rehearing order, the panel
does not challenge Coleman’s precipitating conduct. He pleaded guilty to and was
convicted of only misdemeanor assault. In exchange for this guilty plea, the state
dropped most of the charges in the initial indictment; however, the first paragraph of
the indictment was not dropped. R. 76 (waiving only “Count II and all habitual
paragraphs and Count I Paragraph II”). The preserved paragraph reads, in pertinent
part, “Tony Coleman . . . did then and there knowingly and intentionally cause the
penetration of the female sexual organ of . . . , a child younger than 14 years of age
and not his spouse, by his penis.” R. 72.
              When Coleman was moved to a halfway house, on supervised
“release,” the state conditioned his transfer, inter alia, on Coleman’s registering as a
sex offender and receiving therapy. The panel correctly dismissed Coleman’s
substantive due process claim founded on the state’s sex offender program.

                                           13
“Many . . . restrictions . . . [at the mental hospital] might not constitute the

deprivation of a liberty interest retained by a prisoner.” Id. at 494, 100 S. Ct. at

1264. The Court’s decision was limited to treatment of the mentally ill and had to

and did turn on stigmatizing consequences and mandatory behavior modification

treatment. Id.

              Even if it is logical to make the constitutional leap from treatment of

the mentally ill, who are helpless as to their condition and its consequences, to sex

offenders, who are predators, the twin factual constraints of Vitek — stigmatizing

consequences and mandatory behavior modification — are lacking in this case.

With due respect, the panel misstated that Coleman must register as a sex offender;

the state dropped this requirement at Coleman’s request, and his name does not

appear on the list (see generally Texas Department of Public Safety Crime Records

Service, Sex Offender Database,

https://records.txdps.state.tx.us/soSearch/default.cfm (last visited Apr. 28, 2005)).3



       3
        In its rehearing order, the panel finds it irrelevant that the registration
requirement was dropped. Surely the panel cannot ignore the jurisdictional
requirement that a live controversy exist at all stages of the litigation. See, e.g.,
United States Parole Comm’n v. Geraghty, 445 U.S. 388, 396-97, 100 S. Ct. 1202,
1208-09 (1980); North Carolina v. Rice, 404 U.S. 244, 246, 97 S. Ct. 402, 404
(1971) (“Even in cases arising in the state courts, the question of mootness is a
federal one which a federal court must resolve before it assumes jurisdiction.”).

                                            14
Further, the panel overlooked that the state expressly protects the confidentiality of

sex therapy records. See TEX. OCC. CODE §§ 109.051-109.053. Coleman cannot

argue “stigma” on this record.4

             Equally troubling, the panel relied on “facts” outside those provided

the state courts in asserting that Coleman would suffer invasive physical procedures.

The only basis for this part of the panel opinion is its judicial notice of a state

government website. The website discusses the use of “multifaceted” sex offender

treatment regimes, which may or may not include the more invasive techniques the

panel asserted as demonstrated fact. None of this discussion is probative as to

Coleman, who never attended any therapy sessions, never experienced any invasive

treatments, and did not and could not submit any evidence in state or federal court

about the therapy sessions he would have been expected to attend.5 The panel’s

      4
       To be sure, Coleman would have to demonstrate that the requirements
stigmatized him beyond his status as a felony convict and as someone convicted of
misdemeanor sexual assault of a twelve-year-old, mentally retarded girl. See supra
n.2.
      5
        Coleman never presented these “facts” to the state courts or requested
judicial notice be taken of the website in state court. Although the panel is quick to
invoke circuit rules to preclude the state from contesting this “fact” in its petition for
rehearing, the state had no notice that the website would be cited by the panel.
After all, the “facts” for habeas cases are required to be developed in the state
courts. See 28 U.S.C. § 2254(d)(2) (referring to “facts in light of the evidence
presented in the state court proceedings”); § 2254(e)(i) (applicant can rebut
presumption of correctness of state fact findings by clear and convincing evidence);

                                            15
conclusions about what his particular therapy regime would entail are pure

conjecture. Thus, the second factual requirement of Vitek is absent from this

record.

             To achieve its desired legal result, the panel extended Vitek from the

circumstance of inmates’ forced mental health treatment to that of forced sex

offender registration and therapy. Moreover, the panel further extends the liberty

interest created in Vitek from a “stigma-plus” due process decision to something

approximating a per se procedural due process rule when, as here, registration was

not even required, and invasive physical treatment is mere conjecture. That is, the

state is required by this decision to grant pre-deprivation process whether or not the

prisoner’s sex therapy will be publicized and thus stigmatizing, and whether or not

invasive physical treatment of a particular prisoner is actually contemplated. By

transforming the Paul v. Davis6 “stigma-plus” test into “plus=stigma,” see Panel Op.



§ 2254(e)(2) (no new hearing allowed to develop facts unless the factual predicate
“could not have been discovered through the exercise of due diligence”). Moreover,
the state now claims (correctly) that Coleman is not in the sex offender database; as
shown supra, brief consultation (equally worthy of judicial notice) of another
website verifies this proposition, which supports the state’s claim of a jurisdictional
defect (see supra note 3).
      6
       424 U.S. 693, 701, 96 S. Ct. 1155, 1160-61 (1976) (damage to reputation
alone insufficient to invoke procedural due process; loss of reputation must be
coupled with some other tangible element to become protectable property interest).

                                          16
on Reh’g, the panel’s conception of a “liberty interest” stands current Supreme

Court caselaw on its head. It bears repeating that only two years ago the Supreme

Court expressly refused to decide whether a sex offender registration law violates a

liberty interest. Doe, 538 U.S. at 8, 123 S. Ct. at 1165.7

             Vitek, moreover, ordered a predeprivation hearing to ascertain the

prisoner’s mental state before the prisoner may be forcibly institutionalized (with

concomitant stigma and invasive treatment). If the panel means to say that Coleman

was entitled to initial release to mandatory supervision only after having a hearing

concerning the imposition of sex offender conditions, then the facts do not support

the panel’s ruling. Coleman stipulated to those conditions at the outset of

supervised release. See R. 91 (“I, Tony Coleman, acknowledge notification of Sex

Offender Program Special Condition and the above components. Failure to abide by

the above special condition and the initialed components is a violation of my



      7
        Moreover, one district court has found that there is nothing atypical or
significantly harsh about a prisoner’s enduring sex therapy. (These are terms
employed by the Supreme Court to explain more clearly the circumstances in which
prison conditions could sustain liberty interest analysis. Sandin v. Conner, 515 U.S.
472, 484, 115 S. Ct. 2293, 2300 (1995).) See Jones v. Puckett, 160 F. Supp. 2d
1016, 1023 (W.D. Wisc. 2001) (“Attending sex offender therapy is not atypical and
significant compared to ordinary prison life. Prisoners are often required to
participate in all types of counseling, not all of which is necessitated by their
specific conviction.”).

                                          17
conditions of release. I further understand that even if I refuse to sign the form

special condition ‘X’ and the components that apply are still in effect.” (signed by

Coleman, 4/3/01)); R. 222 (additional signature of Coleman agreeing to sex offender

conditions, dated Mar. 23, 2001). He did not make a due process challenge at that

time. Having so stipulated in order to gain “release,” Coleman is in an odd position

now, four years later, when he backs off his agreement.

             In these various ways, the panel relied on unproven facts and distortion

of Vitek to reach its substantive conclusion. Its methodology also plays havoc with

Congress’s carefully crafted limitations on federal habeas review. AEDPA

authorizes federal courts to overturn only those state court decisions that represent

an “unreasonable” application of constitutional law decided by the Supreme Court.

An “unreasonable” decision must be not just wrong, but really wrong. See Brown

v. Payton, 125 S. Ct. 1432, 1442 (Mar. 22, 2005); Williams v. Taylor, 529 U.S.

362, 410-11, 120 S. Ct. 1495, 1522 (2000). This panel’s decision cannot even be

squared with the actions of the circuits supporting its constitutional adjudication. In

Neal v. Shimoda, a § 1983 case cited favorably by the panel, the Ninth Circuit

found that the liberty interest protected by the due process clause was implicated in

a similar factual situation. 131 F.3d 818 (9th Cir. 1997). The court went on,

however, to sustain the qualified immunity of individual defendants. The qualified

                                          18
immunity ruling is wholly at odds with what the panel had to find in order for

Coleman to prevail under AEDPA. Neal stated:

      No reasonable prison official would have reason to know that the
      classification of Neal as a sex offender or the requirement that Neal
      complete the [treatment] as a precondition to parole eligibility would
      implicate a protected liberty interest, let alone that the program violated
      his due process rights.

Id. at 832 (emphasis added); see also Chambers v. Colorado Dep’t of Corr., 205

F.3d 1237, 1244 (10th Cir. 2000) (holding, on similar facts, that “[b]ecause the state

of the law was not established when these actions were taken, the prison officials

named in this lawsuit are entitled to qualified immunity”).8 While the


      8
         The other circuits’ § 1983 decisions also raise a serious question whether the
panel properly decided this as a habeas case. On January 17, 2001, Coleman was
released on mandatory supervision on the condition that he reside in a halfway
house until reemployed. “Mandatory supervision” is “the release of an eligible
inmate so that the inmate may serve the remainder of the inmate’s sentence not on
parole but under the supervision of the pardons and paroles division.” TEX. GOV’T
CODE § 508.001(5) (VERNON 2004) (emphasis added) (quoted in Panel Op., __
F.3d __, __ (slip op. at 2 n.1)). The appropriate avenue for challenging the state’s
treatment of Coleman appears to be through 42 U.S.C. § 1983, not habeas. See
Wilkinson v. Dotson, 125 S. Ct. 1242, 1250 (Mar. 7, 2005) (Scalia, J., concurring)
(“It is one thing to say that permissible habeas relief, as our cases interpret the
statute, includes ordering a ‘quantum change in the level of custody,’ such as release
from incarceration to parole. It is quite another to say that the habeas statute
authorizes federal courts to order relief that neither terminates custody, accelerates
the future date of release from custody, nor reduces the level of custody. . . . A
holding that this sort of judicial immersion in the administration of discretionary
parole lies at the ‘core of habeas’ would utterly sever the writ from its common law
roots.”); Cook v. Tex. Dep’t of Criminal Justice Transitional Planning Dep’t, 37

                                          19
AEDPA/Teague standard and the test for qualified immunity are “doctrinally

distinct,” Williams, 529 U.S. at 380, 120 S. Ct. at 1506 n.12 (Stevens, J.) (plurality

opinion), we need not ignore their logical similarity. It is illogical to conclude that

no “new rule” is made here when the panel (a) orders Texas prison officials, for the

first time, to give hearings to sex offenders who were not explicitly convicted of sex

offenses; (b) determines such prisoners are now entitled to hearings even if their sex

offender treatment is fully confidential and amounts to “talk therapy”; and (c) the

other circuits have agreed, through their qualified immunity conclusions, that Vitek

supports but does not necessarily compel similar results.

             In sum, the panel’s “new rule” was not “dictated by Supreme Court

precedent.” See Teague, 489 U.S. at 301, 109 S. Ct. at 1070 (a “new rule” is one

that “breaks new ground or imposes a new obligation on the States . . . .”). It would

be hard for any prisoner procedural due process innovation to be dictated by



F.3d 166, 168 (5th Cir. 1994) (habeas corpus is solely available to challenge the
“fact or duration of confinement”); Bunn v. Conley, 309 F.3d 1002, 1008 (7th Cir.
2002) (rejecting an attempt to challenge in habeas a “crime of violence” notification
requirement imposed as part of supervised release because the requirement “in no
way affects the duration, much less the fact, of confinement”). Notably, four other
circuits have addressed issues similar to those posed to this panel in § 1983; none
has considered the issue through habeas. See Gunderson v. Hvass, 339 F.3d 639,
642 (8th Cir. 2003); Chambers v. Colorado Dep’t of Corr., 205 F.3d 1237, 1239-40
(10th Cir. 2000); Kirby v. Siegelman, 195 F.3d 1285, 1287 (11th Cir. 1999); Neal v.
Shimoda, 131 F.3d 818, 824 (9th Cir. 1997).

                                           20
precedent given the inherent balancing involved in due process cases. That the

panel’s decision was not “dictated” by Vitek, however, is ultimately reinforced by

the Supreme Court’s refusal, in Doe, supra, to decide whether a liberty interest

exists in not being classified as a sex offender.

             As a way around its inability to cite “clearly established” Supreme

Court caselaw, the panel invokes Yarborough v. Alvarado, __ U.S. __, 124 S. Ct.

2140, 2151 (2004) (“Certain principles are fundamental enough that when new

factual permutations arise, the necessity to apply the earlier rule will be beyond

doubt.”)). See Panel Op. __ F.3d at __ (slip op. at 11 n.30). Yarborough is not on

point. Moreover, the Court’s dicta were immediately followed by the statement,

“This is not such a case, however.” Id. Further, Justice Kennedy cited no illustra-

tive caselaw after making this broad statement. Yarborough’s dicta do not eliminate

the longstanding rule that habeas is not the avenue through which a federal court

may find new constitutional rights. See Teague v. Lane, 489 U.S. 288, 109 S. Ct.

1060 (1989); Williams, 529 U.S. at 379, 120 S. Ct. at 1505-06 (noting that Teague

“remains the law” even after AEDPA, and that “[i]t is perfectly clear that AEDPA

codifies Teague to the extent that Teague requires federal habeas courts to deny

relief that is contingent upon a rule of law not clearly established at the time the

state conviction became final”).

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             The only thing more perplexing than the panel’s determination on the

merits is what happens next — both for Coleman and the state correctional

institutions in this circuit. The panel decision is neither fish nor fowl: Coleman

“wins” and the district court is reversed, yet Coleman does not secure his release,

and the panel does not offer any guidance to the district court as to the appropriate

next step. This is without precedent. Should the district court hold a mini-trial? Or

should the district court order Coleman “released” back into the halfway house,

where he is still in custody under Texas law, until the state convenes yet another

hearing and affords Coleman an opportunity to dispute his status and treatment

regimen? Compare Vitek, 445 U.S. at 494-96, 100 S. Ct. at 1264-65 (refusing to

require states to provide counsel for predeprivation hearings). And what should

prison officials do when they want a parolee to obtain counseling for drug abuse,

alcoholism, or even depression? Surely stigma may attach to any of these labels,

even, apparently, if the treatment is confidential. Must procedural process be

afforded?

             This opinion extends Vitek beyond recognition and vastly complicates

the state’s attempts to rehabilitate troubled, as well as predatory, inmates. Equally

unfortunate, it does violence to the deference that we owe state courts under

AEDPA. The panel crafted a “new rule” of parole procedure where two other

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circuits, on whose opinions it heavily relied, granted § 1983 qualified immunity

precisely because the law on this issue — the pre-parole process owed a sex

offender — is not clear, much less “dictated by precedent.” This opinion opens the

door to other judge-made “new rules” that undermine AEDPA’s statutory

requirements.

             I respectfully dissent.




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