     Case: 11-20285     Document: 00511803837         Page: 1     Date Filed: 03/28/2012




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

                                                                            FILED
                                                                          March 28, 2012
                                     No. 11-20285
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

MANDELL RHODES, JR.,

                                                  Plaintiff-Appellant

v.

NATHANIEL QUARTERMAN; BRAD LIVINGSTON; BECKY PRICE,

                                                  Defendants-Appellees


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:10-CV-2508


Before DAVIS, DeMOSS, and HAYNES, Circuit Judges.
PER CURIAM:*
        Mandell Rhodes, Jr., Texas prisoner # 307498, was convicted of aggravated
rape in 1980 and sentenced to 50 years of imprisonment. After Rhodes was
convicted, the aggravated rape statute was amended in 1981 and again in 1983,
and the offense became known as aggravated sexual assault. See Griffith v.
State, 116 S.W.3d 782, 787–88 (Tex. Crim. App. 2003); Lindsey v. State, 760
S.W.2d 649, 649–51 (Tex. Crim. App. 1988). Proceeding pro se and in forma
pauperis, Rhodes filed the instant 42 U.S.C. § 1983 complaint alleging that

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 11-20285    Document: 00511803837      Page: 2   Date Filed: 03/28/2012

                                  No. 11-20285

prison officials failed to consider his eligibility for administrative good conduct
time under the 1983 version of the Texas Prison Management Act (PMA)
(enacted due to prison overcrowding). Rhodes acknowledged that inmates
convicted of certain, listed offenses (which included aggravated sexual assault)
were excluded from eligibility for administrative good conduct time under the
1983 PMA. He argued, however, that aggravated rape was not one of those
listed offenses and that he was not disqualified from receiving administrative
good conduct time under the 1983 PMA.
      Rhodes’s notice of appeal is timely only as to the district court’s denial of
his second “motion for reconsideration.” See FED. R. APP. P. 4(a); see Halicki v.
La. Casino Cruises, Inc., 151 F.3d 465, 467–70 (5th Cir. 1998). The underlying
dismissal of Rhodes’s complaint and the denial of his first motion for
reconsideration are not properly before this court. See Charles L.M. v. Ne. Indep.
Sch. Dist., 884 F.2d 869, 870–71 (5th Cir. 1989); Ellis v. Richardson, 471 F.2d
720, 721 (5th Cir. 1973).
      Rhodes challenges the district court’s finding that “aggravated rape” and
“aggravated sexual assault” are the same offense for purposes of the 1983 PMA
and that he is therefore excluded from eligibility for administrative good conduct
time under the PMA.
      When the aggravated rape statute was amended in 1981 and 1983, it
expanded criminal liability rather than narrowing it. See Griffith, 116 S.W.3d
at 787–88; Lindsey, 760 S.W.2d at 649–51. There is no merit to Rhodes’s
argument that the conduct for which he was convicted in 1980 is not included in
the conduct prohibited by the 1983 version of the aggravated sexual assault
statute. See Griffith, 116 S.W.3d at 787–88. The district court did not abuse its
discretion in dismissing Rhodes’s complaint. See id. at 787; Seven Elves, Inc. v.
Eskenazi, 635 F.2d 396, 402 (5th Cir. 1981).
      AFFIRMED.



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