     Case: 09-10967     Document: 00511510847          Page: 1    Date Filed: 06/16/2011




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

                                                    FILED
                                                                            June 16, 2011

                                       No. 09-10967                         Lyle W. Cayce
                                                                                 Clerk

THOMAS MICHAEL WIGGINS,

                                                   Petitioner - Appellant
v.

RICK THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                                   Respondent - Appellee




                     Appeal from the United States District Court
                          for the Northern District of Texas
                              USDC No. 3:08-cv-02090-K


Before JONES, Chief Judge, and KING and BARKSDALE, Circuit Judges.
PER CURIAM:*
          Proceeding pro se, Thomas Michael Wiggins, former Texas prisoner
# 464921, now on mandatory supervision, challenges the denial of federal habeas
relief.       Of the four issues for which Wiggins requested a certificate of
appealability (COA), our court granted it for two: whether his claims regarding
the December 2005 revocation of his mandatory supervision are not moot
because, in order to pursue an action for damages under 42 U.S.C. § 1983 related


          *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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.
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                                 No. 09-10967

to that revocation, he must first obtain a favorable outcome in habeas
proceedings; and whether he was improperly denied credit for the time spent in
confinement in August 2005, prior to that revocation. AFFIRMED.
                                        I.
      In October 2003, Wiggins was released on mandatory supervision, in
Nebraska, from Texas Department of Criminal Justice (TDCJ) custody. On 2
August 2005, Nebraska parole officials placed him in custody pursuant to a
complaint that he had sexually assaulted a co-worker; however, because that
person refused to testify, parole officials could not conduct a probable-cause
hearing, no charges were filed, and Wiggins was released on 31 August.
      That September, however, Nebraska parole officials conducted a probable-
cause hearing on an alleged violation of an electronic-monitoring rule and found
probable cause that Wiggins had violated a condition of his parole.          That
October, Nebraska officials requested the Texas Board of Pardons and Paroles
return Wiggins to Texas as a parole violator, and TDCJ issued a pre-revocation
warrant for his arrest. That November, Wiggins was taken into custody and
returned to TDCJ as a mandatory-supervision violator. That December, the
Board revoked his mandatory supervision.
      In July 2006, Wiggins applied to TDCJ for a time-credit-dispute resolution.
TDCJ did not respond until May 2007.
      Earlier, that March, Wiggins applied for habeas relief in Texas state court,
asserting, inter alia: his due-process rights were denied at his mandatory-
supervision revocation proceeding because he was denied counsel and because
there was insufficient evidence for the revocation; and he was denied credit for
the approximate one-month confinement in Nebraska in 2005. The state trial
court entered findings of fact and conclusions of law and recommended that
relief be denied because: the mandatory supervision had not been improperly
revoked; the time-credits had been properly calculated; and constitutional rights
had not been denied. Ex parte Wiggins, No. W86-77710-QL(C) (Tex. Crim. D. Ct.

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No. 5, Dallas Cnty. 4 Aug. 2008). The Texas Court of Criminal Appeals denied
Wiggins’ application without written order and without hearing, based on the
findings of the state trial court. Ex parte Wiggins, No. WR-27, 103-04 (Tex.
Crim. App. 1 Oct. 2008).
      Wiggins applied for federal habeas relief, pursuant to 28 U.S.C. § 2254,
presenting the same claims as in state court. Subsequently, in January 2009,
he was again released on mandatory supervision.
      That April, Wiggins’ federal habeas application was referred to a
magistrate judge for report and recommendation.            The magistrate judge
recommended, inter alia: Wiggins’ claims related to the mandatory-supervision
revocation in 2005 were rendered moot by his being re-released in 2009 on such
supervision; and Wiggins was not entitled to relief on his claim for credit for time
spent in confinement in Nebraska in August 2005, prior to the December 2005
revocation, because, although Texas law entitles parolees to credit for time spent
in custody on pre-revocation warrants, the record did not demonstrate that a
pre-revocation warrant had been issued in Texas until October 2005. Wiggins
v. Quarterman, No. 3:08-cv-2090-K-BH (N.D. Tex. 21 Aug. 2009). Wiggins did
not file objections to those recommendations.
      The district court adopted the report and recommendation, dismissed as
moot Wiggins’ claims for relief regarding the mandatory-supervision revocation,
and otherwise denied, with prejudice, Wiggins’ request for relief. Wiggins v.
Quarterman, No. 3:08-cv-2090-K, 2009 WL 2981916, at *6 (N.D. Tex. 15 Sept.
2009).
      The district court denied Wiggins’ request for a COA. Our court granted
him a COA on the two above-stated issues: whether his claims regarding the
validity of his revocation were not moot because, in order to pursue an action for
damages under 42 U.S.C. § 1983 related to revocation, he must first obtain a
favorable outcome in habeas proceedings; and whether he was improperly denied
credit for the time spent in confinement in August 2005.

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                                        II.
      Generally, the district court’s findings of fact are reviewed for clear error;
its conclusions of law, de novo. E.g., Propes v. Quarterman, 573 F.3d 225, 227
(5th Cir. 2009), cert. denied, 130 S. Ct. 3272 (2010). It is arguable that plain-
error review instead applies because Wiggins did not submit objections to the
magistrate judge’s report and recommendation. See, e.g., Douglass v. United
Servs. Auto. Ass’n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc). Cutting against
applying that limited review is the district court’s arguably engaging in de novo
review. It is not necessary to decide whether our review is only for plain error
because Wiggins’ claims fail under the more liberal standard of review.
      Under the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA), Pub. L. No. 104-132, 110 Stat. 1214, a federal court may not grant
habeas relief to a state prisoner on a claim adjudicated on the merits by the state
court unless the state-court decision was:      (1) “contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by
the Supreme Court of the United States”; or (2) “was based on an unreasonable
determination of the facts in light of the evidence presented in the State court
proceeding”. 28 U.S.C. § 2254(d); see, e.g., Pierce v. Thaler, 604 F.3d 197, 200
(5th Cir. 2010). “Under AEDPA, a state court’s factual findings are ‘presumed
to be correct’ unless the habeas petitioner rebuts the presumption through ‘clear
and convincing evidence.’” Nelson v. Quarterman, 472 F.3d 287, 292 (5th Cir.
2006) (quoting 28 U.S.C. § 2254(e)(1)). “Because a federal habeas court only
reviews the reasonableness of the state court’s ultimate decision, the AEDPA
inquiry is not altered when, as in this case, state habeas relief is denied without
an opinion.” Schaetzle v. Cockrell, 343 F.3d 440, 443 (5th Cir. 2003) (citing
Santellan v. Cockrell, 271 F.3d 190, 193 (5th Cir. 2001)).
                                        A.
      The district court ruled that, because Wiggins had been re-released in
2009 on mandatory supervision, his claims for constitutional violations occurring

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during his revocation proceedings in 2005 are moot. Wiggins contends those
claims are not moot because a favorable outcome in habeas proceedings is
required for pursuing damages, arising from the revocation, under 42 U.S.C.
§ 1983. See, e.g., Heck v. Humphrey, 512 U.S. 477, 486-87 (1994); DeLeon v. City
of Corpus Christi, 488 F.3d 649, 654 (5th Cir. 2007).
      For an action in federal court, Article III of the Constitution requires a
case or controversy.   That Wiggins may need to obtain a favorable habeas
decision establishing the invalidity of his mandatory-supervision revocation
before pursuing a separate action is insufficient to maintain the requisite case
or controversy. E.g., Spencer v. Kemna, 523 U.S. 1, 7 (1998); United States v.
Clark, 193 F.3d 845, 847-48 (5th Cir. 1999).
                                       B.
      The district court denied Wiggins credit against his sentence for the time
spent confined in Nebraska in August 2005, prior to revocation of his mandatory
supervision. Wiggins maintains he has a protected liberty interest, created by
state law, in pre-revocation detention credits, relying on Ex parte Canada, 754
S.W.2d 660, 668 (Tex. Crim. App. 1988), which held that “any time spent in
confinement pursuant to the execution of a pre-revocation warrant cannot be
denied a parolee”.
      Even if Wiggins has a liberty interest in such credits, he has not shown
that the confinement in Nebraska was “pursuant to the execution of a pre-
revocation warrant”. In other words, Wiggins has not shown clear error in the
district court’s factual finding that he was not confined pursuant to execution of
a pre-revocation warrant issued under Texas law, see Propes, 573 F.3d at 227,
nor has he rebutted the presumption of correctness accorded the state court’s
factual findings that his time credits had been properly calculated, see Nelson,
472 F.3d at 292. Further, to the extent Wiggins seeks relief based on a claim
that state law was misapplied in the light of Canada, federal habeas relief is
unavailable. E.g., Lewis v. Jeffers, 497 U.S. 764, 780 (1990) (“[F]ederal habeas

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corpus relief does not lie for errors of state law . . . .”) (citations omitted).
Accordingly, Wiggins has not shown that the state-court decision denying him
habeas relief was: (1) “contrary to, or involved an unreasonable application of,
clearly established Federal law, as determined by the Supreme Court of the
United States”; or (2) “was based on an unreasonable determination of the facts
in light of the evidence presented in the State court proceeding”. See 28 U.S.C.
§ 2254(d).
                                       C.
      Wiggins also seeks relief on due-process claims that are outside the scope
of his COA. Our court lacks jurisdiction to consider them. E.g., Carty v. Thaler,
583 F.3d 244, 266 (5th Cir. 2009); United States v. White, 307 F.3d 336, 339 n.1
(5th Cir. 2002).
                                       III.
      For the foregoing reasons, the judgment is AFFIRMED.




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                                      No. 09-10967

KING, Circuit Judge, concurring:
         I concur in the majority’s good opinion, though with misgivings because
this case is simply not moot. Wiggins suffered, and will continue to suffer until
his sentence expires, an actual injury as a result of the revocation proceeding
because his maximum discharge date was extended by two years after his
mandatory supervision was revoked. This injury is sufficient to create a live
case or controversy. However, the certificate of appealability (COA) that was
granted in this case is very limited, and we lack jurisdiction to consider the
issue.
         When Wiggins was released on mandatory supervision on October 15,
2003, his maximum discharge date (the date on which he would be released from
supervision) was set for February 20, 2013. Upon revocation of his mandatory
supervision, Wiggins lost any credit against his sentence that he earned while
on supervision. See Tex. Gov’t Code Ann. § 508.283(c). Although the magistrate
judge specifically found that the revocation of mandatory supervision “has had
no impact on petitioner’s maximum discharge date,” the record reveals that this
date was extended by two years and seventeen days, to March 10, 2015,
following the revocation of Wiggins’s supervision.
         In his request for a COA from this court, Wiggins did not contest the
magistrate judge’s finding that the revocation had no impact on his maximum
discharge date, nor did Wiggins argue that his claims were not moot because his
discharge date had been extended.1 Instead, Wiggins requested, and this court
granted, a COA on the limited issue of whether Wiggins’s “habeas claims
pertaining to the revocation of his mandatory supervision are not moot because,
in order to pursue an action for damages under 42 U.S.C. § 1983 related to the


         1
         Wiggins argued that his claims were not moot because the revocation had caused the
forfeiture of good time credits, but he conceded that the credits did not impact his maximum
discharge date.

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                                   No. 09-10967

revocation, he must first obtain a favorable outcome in habeas proceedings.”
While I agree with the court’s conclusion that Wiggins’s need for a favorable
ruling is insufficient to create a live case or controversy, this case is nonetheless
not moot, albeit for a different reason.
      A habeas petitioner must demonstrate that he suffers continuing collateral
consequences from the revocation of his parole in order keep his habeas claims
related to the revocation from being declared moot. Spencer v. Kemna, 523 U.S.
1, 7–8 (1998). Unlike the petitioner in Spencer, whose sentence had expired
after he filed his petition, Wiggins remains “in the legal custody of the State”
while on mandatory supervision. Ex parte Canada, 754 S.W.2d 660, 663 (Tex.
Crim. App. 1988). His loss of sentence credit as a result of the revocation means
that Wiggins will be in legal custody and subject to the requirements of
mandatory supervision for an additional two years. Wiggins thus suffers a
continuing consequence of his revocation by the extension of his maximum
discharge date.
      This court has previously held, in two unpublished decisions, that the
extension of a habeas petitioner’s parole discharge date is sufficient to create a
live case or controversy for claims related to revocation proceedings,
notwithstanding the petitioner’s subsequent re-release on parole. See Villegas
v. Thaler, No. 08-20822, 2011 U.S. App. LEXIS 9096, at *3–4 (5th Cir. May 3,
2011) (“The extension of [the petitioner’s] parole discharge date is a collateral,
if not direct, consequence of the parole revocation.”); Tolley v. Johnson, 228 F.3d
410 (5th Cir. 2000) (table case) (“The extension of [the petitioner’s] parole release
date . . . is a consequence of his parole revocation, collateral if not direct.”). In
Villegas, the state even “concede[d] that the extension of [a habeas petitioner’s]
parole discharge date ordinarily would prevent his challenge from being moot as
long as he continued serving his parole.” Villegas, 2011 U.S. App. LEXIS 9096,
at *4. Given that it conceded this point in Villegas, I am dismayed that the state

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acquiesced in the magistrate judge’s sua sponte conclusion that this case was
moot.
        Unfortunately, our jurisdiction is limited by the COA. See Carty v. Thaler,
583 F.3d 244, 266 (5th Cir. 2009). We may expand the scope of the COA in
certain circumstances, but only if one of the parties specifically requests that we
do so. See United States v. Kimler, 150 F.3d 429, 430–31 (5th Cir. 1998).
Neither party has requested that we expand the COA in this case, and Wiggins
did not even brief the issue related to the extension of his maximum discharge
date. Therefore, we lack jurisdiction to declare this case not moot, even though
it clearly is not. For this reason, I join the court’s opinion affirming the district
court’s dismissal of Wiggins’s claims as moot.




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