     Case: 15-20363      Document: 00514475332         Page: 1    Date Filed: 05/16/2018




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit
                                    No. 15-20363                                FILED
                                  Summary Calendar                          May 16, 2018
                                                                           Lyle W. Cayce
                                                                                Clerk
RICHARD DELAIN KYLES,

                                                 Petitioner-Appellant

v.

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

                                                 Respondent-Appellee


                  Appeals from the United States District Court
                       for the Southern District of Texas
                            USDC No. 4:14-CV-2698


Before CLEMENT, COSTA, and WILLETT, Circuit Judges.
GREGG COSTA, Circuit Judge: *
       Richard Delain Kyles, Texas prisoner # 257935, is serving a life sentence
for a murder he committed in 1975. We authorized his appeal of the district
court’s rejection of his federal habeas petition challenging the 2013 denial of
his parole application on ex post facto grounds. He argues that the Parole
Board’s retroactive application of Texas Government Code section 508.046



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-20363

violates the Constitution. That current statute requires a 2/3 vote of all seven
board members to parole an inmate convicted of a capital felony. The parole
laws in effect at the time of Kyles’s offense had a practice like the one federal
courts of appeals use to decide cases: a group of three board members was
selected to act as a panel in an individual prisoner’s case; the prisoner then
needed to convince a majority of the three.
      Kyles raised a similar challenge to the Board’s 2004 denial of parole. See
Kyles v. Quarterman, 291 F. App’x 612 (5th Cir. 2008).         The reasons we
affirmed the dismissal of that habeas petition warrant the same treatment of
this one. The amendments enlarging the size of parole panels do not “facially
violate the Ex Post Facto Clause [because they] affect the discretionary
procedure for determining suitability rather than eligibility for parole.” Id. at
613 (citing Wallace v. Quarterman, 516 F.3d 351, 354-56 (5th Cir. 2008)).
Application of the new procedure may nonetheless present an as-applied ex
post facto problem if the prisoner can demonstrate that the change created a
significant risk of increased confinement in his case. Wallace, 516 F.3d at 356;
see also Garner v. Jones, 529 U.S. 244, 255 (2000). Kyles tries to make that
showing by pointing to the two members of the Parole Board who favored his
parole. If those two had been on a three-member panel selected under the old
procedure, then he would have had enough votes for parole. The problem is
the “if.” Kyles cannot show that a randomly selected three-member panel
would have included the two members who voted in his favor. His argument
on this point is thus even more speculative than his prior challenge when he
could point to three members who had supported parole. Kyles, 291 F. App’x
at 614 (rejecting ex post facto claim because Kyles could not show the three
who voted in his favor in 2004 would have been at least two of those selected
to form a three-member panel). There is an additional layer of uncertainty on



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top of the unknown board composition: the old regime required the Governor
to approve any grant of parole the three-member panel recommended. See
TEX. CONST. art. IV, § 11 (West 1974); TEX. CODE CRIM. PROC. ANN. art. 42.12,
§§ 13, 15(a) (West 1974 & Supp. 1975). This conjecture about what would have
happened under the old system is not enough to establish the likelihood of
increased punishment that an ex post facto violation requires. Wallace, 516
F.3d at 356; Kyles, 291 F. App’x at 614.
      To the extent that Kyles also raises a due process claim, this court denied
a certificate of appealability on that issue.
      AFFIRMED.




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