     Case: 11-41093     Document: 00512027530         Page: 1     Date Filed: 10/22/2012




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

                                                                            FILED
                                                                         October 22, 2012
                                     No. 11-41093
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

DEAMUS TROY CASTERLINE,

                                                  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 Southern District of Texas
                              USDC No. 2:09-CV-164


Before REAVLEY, JOLLY, and DAVIS, Circuit Judges.
PER CURIAM:*
        Deamus Troy Casterline, Texas prisoner # 399472, appeals the district
court’s dismissal with prejudice of his 28 U.S.C. § 2254 petition for a writ of
habeas corpus.        This court granted a certificate of appealability (COA) to
determine if the district court erred in denying Casterline’s claims that (1) the
Texas Court of Criminal Appeals’ (TCCA) decision in Ex parte Franks, 71 S.W.3d




       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 11-41093

327, 328 (Tex. Crim. App. 2001), gives rise to Due Process implications in light
of the Supreme Court’s holding in Rogers v. Tennessee, 532 U.S. 451 (2001), and
(2) there are Ex Post Facto implications to the state’s policy, adopted after the
commission of Casterline’s offense, of keeping violent offenders in prison longer
in    order   to   receive   federal   funds   under      the   Violent   Offender
Incarceration/Truth-in-Sentencing Act.
        Casterline has moved to strike those portions of his opening and reply
briefs that raise Ex Post Facto claims based on the state’s receipt of funding
under the Truth-in-Sentencing Act. That motion is granted. He has also filed
a motion seeking leave to file a supplemental brief discussing a recent Third
Circuit case, and he has discussed that case in a letter filed pursuant to Rule
28(j) of the Federal Rules of Appellate Procedure. The motion for leave to file a
supplemental brief is denied. Finally, he has filed two motions requesting that
this court take judicial notice of certain legislative histories and bill analyses.
These motions are denied as unnecessary. See United States v. Schmitt, 748
F.2d 249, 255 (5th Cir. 1984).
        On appeal from the denial of a § 2254 petition, this court reviews the
district court’s factual findings for clear error and its legal conclusions de novo,
applying the same standard of review that was applicable to the district court’s
review of the state court decision. Rabe v. Thaler, 649 F.3d 305, 308 (5th Cir.
2011). A federal court may not grant habeas relief on claims adjudicated on the
merits in state court unless the adjudication of the claim resulted in a decision
that 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) “based on an unreasonable determination of the facts in light of
the evidence presented in the State court proceeding.” § 2254(d).
        The December 1984 murder for which Casterline was convicted garnered
him a sentence of life imprisonment. At the time Casterline committed his
offense in 1984, he was eligible for release to mandatory supervision. See

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                                   No. 11-41093

Franks, 71 S.W.3d at 327-28. In 2001, the TCCA held in Franks that “a life
sentenced inmate is not eligible for release to mandatory supervision” under the
pertinent statute.   Id. at 327.    The holding in Franks was based on the
conclusion that “it is mathematically impossible to determine a mandatory
supervision release date on a life sentence because the calendar time served plus
any accrued good conduct time will never add up to life.” Id. at 328. Casterline
maintains that the Franks decision was unexpected and indefensible and
deprived him of fair warning of the punishment for his offense.
      “[A] judicial alteration of a common law doctrine of criminal law violates
the principle of fair warning, and hence must not be given retroactive effect, only
where it is ‘unexpected and indefensible by reference to the law which had been
expressed prior to the conduct in issue.’” Rogers, 532 U.S. at 462 (quoting Bouie
v. City of Columbia, 378 U.S. 347, 354 (1964)). The Court in Rogers explained
that the fair warning concept inherent in the Due Process Clause relates to “the
constitutionality of attaching criminal penalties to what previously had been
innocent conduct.” Rogers, 532 U.S. at 459. There is no Supreme Court case,
however, applying Rogers and Bouie to judicial interpretations of parole or
mandatory supervised release statutes like that involved in the instant case. In
other words, there is no clearly established federal law, as determined by the
Supreme Court, stating that a retroactive judicial interpretation effecting a
change in sentencing, parole, probation, or mandatory supervised release law
that disadvantages a prisoner gives rise to a Due Process violation. Accordingly,
the state court’s denial of Casterline’s Due Process claim assailing Franks cannot
have been contrary to such law or an unreasonable application of such law. See
§ 2254(d)(1).
      Next, Casterline argues that the July 2008 decision of the Texas Board of
Pardons and Parole denying him parole was based on parole policies, put in
place after his conviction, that aimed to have violent offenders serve higher
percentages of their sentences before being released on parole. He contends that

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the state adopted these policies to obtain funding under the Violent Offender
Incarceration Act.
      “One function of the Ex Post Facto Clause is to bar enactments which, by
retroactive operation, increase the punishment for a crime after its commission.”
Garner v. Jones, 529 U.S. 244, 249 (2000). Retroactive changes to parole laws
may, in some cases, violate this precept. Id. at 250. The inquiry is whether the
change in law creates “a sufficient risk of increasing the measure of punishment
attached to the covered crimes.” Id. (internal quotation marks and citation
omitted).   However, a new procedure that creates only a speculative and
attenuated risk of increasing the measure of punishment does not violate the Ex
Post Facto Clause. California Dep’t of Corr. v. Morales, 514 U.S. 499, 509 (1995);
Hallmark v. Johnson, 118 F.3d 1073, 1078 (5th Cir. 1997).
      Evidence produced by Casterline shows that, in the 1990s and 2000s, there
was a statistical trend of violent offenders serving higher percentages of their
sentences prior to being released on parole. But these statistical trends are not
evidence that any new parole policies resulted in a risk of increased risk of
confinement as to him. See Wallace v. Quarterman, 516 F.3d 351, 356 (5th Cir.
2008). None of the papers or reports relied upon by Casterline shows that he
would have been granted parole earlier had the purported new parole policies
not been implemented. See Morales, 514 U.S. at 508-10. Accordingly, the state
court’s denial of Casterline’s Ex Post Facto claim was not contrary to or an
unreasonable application of the law as stated in Garner and Morales. See
§ 2254(d)(1).
      AFFIRMED;       MOTION      TO    STRIKE     GRANTED;       ALL    OTHER
OUTSTANDING MOTIONS DENIED.




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