     Case: 15-30441      Document: 00513531079         Page: 1    Date Filed: 06/02/2016




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 15-30441
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                             June 2, 2016
RONALD MARSHALL,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Petitioner-Appellant

v.

ROBERT TANNER, WARDEN, ELAYN HUNT CORRECTIONAL CENTER,

                                                 Respondent-Appellee


                   Appeal from the United States District Court
                      for the Eastern District of Louisiana
                             USDC No. 2:14-CV-849


Before DAVIS, JONES, and GRAVES, Circuit Judges.
PER CURIAM: *
       Ronald Marshall, Louisiana prisoner # 336016, appeals the dismissal for
failure to exhaust state remedies of his 28 U.S.C. § 2241 petition challenging
the execution of his sentence as a habitual offender following his armed
robbery conviction. Marshall’s motion to file an out of time reply brief is
GRANTED. Marshall argues that his commitment “at hard labor” in the
Louisiana Department of Public Safety and Corrections (the Department) falls


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 15-30441

outside the parameters of the statutory sentencing provisions under which he
was sentenced, violates the Ex Post Facto Clause, and denies him a state
created liberty interest in violation of the Fourteenth Amendment. We affirm
the dismissal of the petition as modified. See Janvey v. Democratic Senatorial
Campaign Comm., Inc., 712 F.3d 185, 193 (5th Cir. 2013).
      Marshall’s § 2241 petition alleged that the version of Louisiana’s
habitual offender statute under which he was sentenced, LA. REV. STAT. ANN.
§ 15:529.1(G) (1987), did not require that enhanced sentences be served “at
hard labor” and that the statute did not contain that condition until it was
amended in 2010.        Marshall reasoned pursuant to LA. REV. STAT. ANN.
§ 15:824(C) that because the version of the habitual offender statute under
which he was sentenced did not provide for imprisonment at hard labor, he
should not have been committed to the custody of the Department.
      A post-trial state prisoner seeking relief under § 2241 is required to
exhaust state remedies. Ballard v. Maggio, 544 F.2d 1247, 1249 (5th Cir.
1977); Rome v. Kyle, No. 93-5551, 1994 WL 708768, *2 (5th Cir. Nov. 30, 1994)
(unpublished). Exhaustion, however, is not a jurisdictional requirement but is
“founded on the more flexible principles of comity.” Ballard, 544 F.2d at 1249.
The parties dispute whether Marshall followed the correct procedure under
Louisiana law to exhaust his state remedies. Absent any controlling authority
and because the exhaustion requirement is not jurisdictional, see Ballard, 544
F.2d at 1249, we pretermit the exhaustion issue because Marshall’s § 2241
claims are meritless.
      Marshall contends that the retroactive application of the 2010
amendment to § 15:529.1(G) violates his ex post facto rights. The Ex Post Facto
Clause is triggered only by a statute which “punishes as a crime an act
previously committed, which was innocent when done; which makes more



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                                 No. 15-30441

burdensome the punishment for a crime, after its commission, or which
deprives one charged with crime of any defense available according to law at
the time when the act was committed.” Wilson v. Lensing, 943 F.2d 9, 10-11
(5th Cir. 1991) (citation omitted). “[T]he construction of state laws is the
exclusive responsibility of the state courts.” Speiser v. Randall, 357 U.S. 513,
522 n.7 (1958); see also United States v. Escalante, 239 F.3d 678, 680 n.6 (5th
Cir. 2001).
      In State v. Douglas, 72 So. 3d. 392, 398 (La. Ct. App. 2011), the court
held that while the “at hard labor” language was not added to the habitual
offender statute until 2010, the addition of that condition did not modify the
sentencing provisions of the underlying predicate offense. 72 So. 3d at 398.
The court stated that the sentence conditions required by § 15:529.1(G) were
“additions to, rather than replacements of, those conditions required by the
sentencing provision for the underlying offense.” Id. A sentence enhanced
under the habitual offender statute, the court held, was computed by reference
to the underlying offense. Id.
      Marshall’s underlying felony offense was armed robbery, and the
sentencing provision for that offense provides for imprisonment “at hard
labor.” See LA. REV. STAT. ANN. § 14:64(B). Because the underlying offense
allowed for a sentence at hard labor, that condition was a legal component of
Marshall’s sentence as a habitual offender. See Douglas, 72 So. 3d at 398.
Consequently, the 2010 amendment to the habitual offender statute did not
increase the punishment to which Marshall was subjected or make his
punishment more burdensome; therefore, the Ex Post Facto Clause was not
triggered. See Wilson, 943 F.2d at 11.
      Insofar as Marshall argues that § 15:529.1(G) (1987) created a liberty
interest in his avoiding imprisonment at hard labor in the custody of the



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                                 No. 15-30441

Department, that claim is also rendered meritless by Douglas. In order to
establish a state created liberty interest, Marshall must show that his
imprisonment at hard labor in the custody of the Department “imposes atypical
and significant hardship on [him] in relation to the ordinary incidents of prison
life.” Jordan v. Fisher, 813 F.3d 216, 222-23 (5th Cir. 2016) (quoting Sandin
v. Conner, 515 U.S. 472, 483-84 (1995)).        Douglas holds that Marshall’s
imprisonment “at hard labor” was conditioned upon his underlying offense
rather than the habitual offender statute. 72 So. 3d at 398. Therefore, his
imprisonment at hard labor is not an “atypical hardship” which arose as a
result of the 2010 amendment but rather was mandated by the statute of his
underlying conviction.
      In light of Douglas, Marshall’s ex post facto and due process claims are
meritless. Accordingly, we modify the judgment to reflect that the § 2241
petition is dismissed with prejudice, and we affirm as modified.
      AFFIRMED AS MODIFIED.




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