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

                                                                 FILED
                                                                August 27, 2008
                               No. 06-20495
                             Summary Calendar             Charles R. Fulbruge III
                                                                  Clerk

RICHARD DELAIN KYLES

                                          Petitioner-Appellant

v.

NATHANIEL QUARTERMAN, 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. 4:06-CV-1456


Before DAVIS, GARZA and PRADO, Circuit Judges.
PER CURIAM:*
      Richard Delain Kyles, Texas prisoner # 257935, was sentenced to life in
prison following a 1976 conviction for capital murder. In 2006, Kyles filed a
28 U.S.C. § 2254 application challenging the application to him of certain
amendments to Texas parole procedures. Under the former procedure, the Texas
Board of Pardon and Paroles (the Board) acted in panels of three. Beginning in
1997, the law changed to require a two-thirds vote of the entire Board, then


      *
      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should not be published and is not precedent except under the limited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.
                                  No. 06-20495

comprised of 18 members, in order to grant parole. Wallace v. Quarterman, 516
F.3d 351, 353 (5th Cir. 2008). The Board was reduced to seven members
effective January 11, 2004. TEX. GOV’T CODE ANN. § 508.031(a) (Vernon Supp.
2004).
      As a threshold matter, the respondent argues that Kyles’s application is
barred by the one-year statute of limitations period because it should have been
brought within one year of the first denial of parole under the new procedure in
1998. We question the respondent’s analysis and application of the continuing
violation theory, given that Kyles is challenging the result of his 2004 parole
hearing, and his federal application as to that hearing was filed within the
limitations period. We need not decide this question, however, as we conclude
that Kyles’s arguments fail on the merits.
      We recently held that the change in the Texas parole procedure of which
Kyles complains does not facially violate the Ex Post Facto Clause as it affects
the discretionary procedure for determining suitability rather than eligibility for
parole. See Wallace v. Quarterman, 516 F.3d 351, 354-56 (5th Cir. 2008).
However, we must nevertheless determine whether the amendment as applied
to Kyles presents a sufficient risk of increased confinement that the Ex Post
Facto Clause is implicated. Id. at 356.
      Kyles contends that he obtained the votes of the three Board members who
served in the Angleton region in which he is incarcerated. However, like the
defendant in Wallace, Kyles put on no evidence in the state habeas proceedings
that those three persons would have been on a three-person panel appointed by
the Board to consider Kyles’s parole if the former panel procedure had been
applied to him. See Wallace, 516 F.3d at 356. Accordingly, the state court’s
resolution of Kyles’s claim was neither contrary to nor an unreasonable
application of clearly established federal law as required for the grant of federal
habeas relief. See id. at 353-54. Accordingly, we affirm the judgment of the
district court.

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                                No. 06-20495

     Kyles has also filed a motion to compel the respondent to provide him with
a copy of the supplemental record. That motion is denied.
     AFFIRMED; MOTION DENIED.




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