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

                                                FILED
                                                                 April 27, 2009
                               No. 08-50483
                             Summary Calendar               Charles R. Fulbruge III
                                                                    Clerk

RUSSELL NORMAN OLSTAD

                                           Plaintiff-Appellant

v.

BRYAN COLLIER, Director, TDCJ Parole Division; RISSIE OWENS, Presiding
Officer, Parole Board; JUANITA GONZALES, Parole Board Member; HOWARD
THRASHER, Parole Commissioner; CHARLES SHIPM AN, Parole
Commissioner

                                           Defendants-Appellees


                 Appeal from the United States District Court
                      for the Western District of Texas
                           USDC No. 1:05-CV-677


Before GARWOOD, JOLLY and SOUTHWICK, Circuit Judges.
PER CURIAM:*
      Russell Norman Olstad, Texas prisoner # 391985, appeals the district
court’s judgment granting the defendant’s motion for summary judgment and
dismissing his 42 U.S.C. § 1983 complaint. Olstad argues that there have been
changes in parole policies since he committed the offense of murder in 1984 that



      *
      Pursuant to 5 TH C IR. 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should not be published and is not precedent except under the limited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 5 TH C IR. R. 47.5.4.
                                   No. 08-50483

have increased his risk of longer incarceration prior to being released on parole.
He asserts that the new policy to disregard good time credits in determining
suitability for parole release along with the new policy of requiring violent
offenders to serve a significant portion of their sentences before being seriously
considered for parole violate the Ex Post Facto Clause. He further contends that
the district court erred in relying on the decision in Wallace v. Quarterman, 516
F.3d 351 (5th Cir. 2008) because it was a habeas case. He also asserts that the
district court erred in finding that a five-year set-off until his next parole review
was constitutional.     He further argues that the district court abused its
discretion in failing to compel the defendants to respond completely to his
discovery requests regarding these issues.
      This court reviews de novo the district court’s grant of summary judgment.
Cousin v. Small, 325 F.3d 627, 637 (5th Cir. 2003).
      With respect to Olstad’s argument that the decision in Wallace is
inapplicable because it involved the review of a habeas application, and not a
civil rights complaint, “neither habeas nor civil rights relief can be had absent
the allegation by a plaintiff that he or she has been deprived of some right
secured to him or her by the United States Constitution or the laws of the
United States.” Hilliard v. Bd. of Pardons and Paroles, 759 F.2d 1190, 1192 (5th
Cir. 1985) (internal quotations and citation omitted). In determining whether
a habeas petitioner was entitled to relief, Wallace considered whether changes
in Texas parole procedures violated the federal Ex Post Facto Clause. Wallace,
516 F.3d at 354–56. This same issue forms the basis of Olstad’s § 1983; thus,
Wallace’s analysis of the alleged constitutional violation could be considered in
determining whether Olstad’s rights had been violated.
      Insofar as Olstad complains about the retroactive application of new parole
policies, athough there is no constitutionally protected liberty interest in parole
in Texas for purposes of due process, an ex post facto challenge does not turn on
the existence of a liberty interest. Orellana v. Kyle, 65 F.3d 29, 32 (5th Cir.

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1995). “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 proper inquiry in parole
cases is whether the retroactive 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).
      In Wallace, this court reasoned that while laws that affect a prisoner’s
eligibility for parole may have ex post facto implications, laws that affect the
discretionary determination of suitability for parole do not. 516 F.3d at 355.
Olstad became eligible for parole review after serving 20 years in prison, and he
received a parole review. In conducting its review, the Board could consider the
additional factors that Olstad now complains of in determining Olstad’s
suitability for parole release. However, these allegedly new factors affect only
the Board’s discretionary determination of suitability and do not affect Olstad’s
eligibility for parole; thus, the factors do not have ex post facto implications.
      Moreover, the changes in Texas parole policy do not violate the Ex Post
Facto Clause because they do not create a sufficient risk of increasing the length
of Olstad’s sentence. In evaluating an alleged violation of the ex post facto
doctrine, the court must rigorously analyze the level of risk that an inmate’s
prison stay will be longer because of a change in the law that applies
retroactively. See Garner, 529 U.S. at 255. 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
Corrections v. Morales, 514 U.S. 499, 508–09 (1995); Hallmark v. Johnson, 118
F.3d 1073, 1078 (5th Cir. 1997).
      The imposition by the Board of a potential five-year set-off until Olstad’s
next parole review presents no ex post facto violation because its effect on
increasing Olstad’s punishment is merely conjectural. See Garner, 529 U.S. at

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253–56; Morales, 514 U.S. at 509; see also Creel v. Kyle, 42 F.3d 955, 957 (5th
Cir. 1995). The Board is vested with discretion as to how often to set Olstad’s
date for reconsideration, with five years for the maximum; the Board is also
permitted to adjust subsequent review dates and conduct a special review if
Olstad’s status changes. Tex. Gov’t Code § 508.141(g) (Vernon 2004); 37 Tex.
Admin. Code §§ 145.2, 145.11, 145.77 (2009). Thus, the altered policy allowing
for up to a five-year set-off creates only the most speculative and attenuated risk
of increasing the measure of Olstad’s punishment. See Garner, 529 U.S. at
253–56; Morales, 514 U.S. at 509–14.
      And insofar as Olstad complains about the different treatment of good
time credits, an amendment that results in the retroactive cancellation of earned
good time credits would violate the Ex Post Facto Clause while an amendment
that merely creates an opportunity for parole release would not. See Lynce v.
Mathis, 519 U.S. 433, 446–449 (1997). Olstad has not asserted that he has lost
any good time credits that he earned. The fact that Olstad has earned good time
is one factor that is considered in determining whether Olstad should be
released on parole. Because the changes in the good time credits policy do not
preclude the Board from exercising their discretion to release Olstad on parole,
they do not result in an ex post facto violation.
      Further, the district court did not abuse its discretion in failing to compel
the defendants to respond to all outstanding discovery requests because Olstad
provided sufficient evidence of the changes in policy that he asserted violated his
constitutional rights and failed to show that he required additional discovery.
See King v. Dogan, 31 F.3d 344, 346 (5th Cir. 1994).
      Olstad also argues that his due process rights were violated based on an
unforeseen construction of good time credits by parole administrators that did
not exist at the time of his offense and could not be defended under the earlier
law. “[L]imitations on ex post facto judicial decisionmaking are inherent in the
notion of due process.” Rogers v. Tennessee, 532 U.S. 451, 456 (2001). Due

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process requires a fair warning. Id. at 457. Thus, “if a judicial construction of
a criminal statute is unexpected and indefensible by reference to the law which
had been expressed prior to the conduct in issue, the construction , must not be
given retroactive effect.” Id. (internal quotation marks, alterations, and citations
omitted).   However, due process does not incorporate all of the specific
requirements of the Ex Post Facto Clause to judicial decisions. Id. at 457–59.
      The policy changes provided a framework for Board members to use in
exercising their discretion to determine whether an inmate should be released
on parole. See Portley v. Grossman, 444 U.S. 1311, 1312 (1980). Olstad does not
dispute that the Board’s decisions on parole were discretionary at the time that
he committed the offense. Providing the Board with additional relevant factors
to be considered in reaching this discretionary decision was not an unexpected
or indefensible policy. See Rogers, 532 U.S. at 457. Thus, Olstad failed to
demonstrate a due process violation.
      Olstad argues that the district court erred in denying his double jeopardy
claim because the retraction of the use of his earned good time credits resulted
in his repeated punishment for the same crime. The Fifth Amendment’s Double
Jeopardy Clause protects against multiple punishments for the same offense.
North Carolina v. Pearce, 395 U.S. 711, 717 (1969), overruled on other grounds,
Alabama v. Smith, 490 U.S. 794, 801-02 (1989). The denial of release on parole
is not an additional punishment. See Coronado v. United States Bd. of Paroles,
540 F.2d 216, 218 (5th Cir. 1976). Any change in the future application of good
time credits that affects Olstad’s parole status is not a double jeopardy violation.
      Olstad argues that the district court abused its discretion in denying his
motion for appointment of counsel. Olstad was able to adequately present his
constitutional claims to the district court. This case does not present exceptional
circumstances warranting the appointment of counsel. Thus, the district court
did not abuse its discretion in denying the motion. See Cupit v. Jones, 835 F.2d
82, 86 (5th Cir. 1987).

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      The district court did not err in granting the defendants’ motion for
summary judgment and in dismissing Olstad’s § 1983 complaint.1 The judgment
is AFFIRMED.




      1
        Any error in the district court’s alternative dismissal of Olstad’s claims
for failure to state a claim was harmless because summary judgment was
properly supported by the record in this case. See F ED. R. C IV. P. 56(c).

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