     Case: 10-40143 Document: 00511369330 Page: 1 Date Filed: 02/02/2011




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

                                                 FILED
                                                                          February 2, 2011
                                     No. 10-40143
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

MATTHEW THOMAS CLARKE,

                                                   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 Eastern District of Texas
                              USDC No. 4:08-CV-381


Before WIENER, PRADO, and OWEN, Circuit Judges.
PER CURIAM:*
       Matthew Thomas Clarke, Texas prisoner # 478025, seeks a certificate of
appealability (COA) to appeal the district court’s denial of his 28 U.S.C. § 2254
petition. Clarke is serving a 99-year sentence for aggravated sexual assault.
       A COA may be issued only if Clarke has “made a substantial showing of
the denial of a constitutional right.” Slack v. McDaniel, 529 U.S. 473, 484
(2000); see 28 U.S.C. § 2253(c)(2).            When the district court has rejected


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-40143

constitutional claims on their merits, this standard is satisfied if the petitioner
“demonstrat[es] that jurists of reason could disagree with the district court’s
resolution of his constitutional claims or that jurists could conclude the issues
presented are adequate to deserve encouragement to proceed further.” Miller-El
v. Cockrell, 537 U.S. 322, 327 (2003).
      Clarke argues that the district court erred in allowing a second magistrate
judge (MJ) to rule on the first MJ’s report and recommendations and that the
clerk of the district court erred in attaching the exhibits he submitted to the
district court to his memorandum in support of his § 2254 petition instead of to
the § 2254 petition.    He also argues that Texas has instituted retroactive
changes to its discretionary and automatic parole statutes, rules, regulations,
policies, practices, and philosophy that present a significant risk of prolonging
his sentence and therefore are in violation of the Ex Post Facto Clause.
Although Clarke states that requiring the Texas Department of Criminal Justice
to submit a future dangerousness report before his parole is granted violates the
Ex Post Facto Clause, he offers no argument to support that claim. Accordingly,
that claim has been abandoned. See Hughes v. Johnson, 191 F.3d 607, 613 (5th
Cir. 1999).
      Of the nine changes to the Texas discretionary parole system that Clarke
alleges violate the Ex Post Facto Clause, the district court did not address his
claims that the Ex Post Facto Clause was violated by requiring sex offenders to
compete a sexual offender treatment program (SOTP) before being released on
parole, by keeping violent offenders in prison longer to receive federal funds
under the Truth-in Sentencing-Act, and by the State’s passing of laws that make
it tougher for violent offenders to be released on parole. We conclude that
reasonable jurists could agree that these issues are “adequate to deserve
encouragement to proceed further.” Slack, 529 U.S. at 484. Accordingly, a COA
is GRANTED IN PART on those issues. Because the district court did not
expressly address those claims before it denied Clarke’s § 2254 petition, we

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                                  No. 10-40143

vacate the judgment to the extent it denied relief on those claims and remand
the case to the district court for consideration of those issues. See Whitehead v.
Johnson, 157 F.3d 384, 388 (5th Cir. 1998).
      Clarke has not made the showing required to obtain a COA with respect
to his remaining claims. See Slack, 529 U.S. at 484. Accordingly, a COA is
DENIED in all other respects. Clarke’s motion for leave to proceed in forma
pauperis is GRANTED. His requests for appointment of counsel, oral argument,
and en banc consideration of his case are DENIED.
      COA GRANTED IN PART; COA DENIED IN PART; VACATED IN PART
AND REMANDED; IFP MOTION GRANTED; ALL REMAINING MOTIONS
DENIED.




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