     Case: 11-50343     Document: 00511943645         Page: 1     Date Filed: 08/02/2012




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

                                                                            FILED
                                                                           August 2, 2012
                                     No. 11-50343
                                   Summary Calendar                        Lyle W. Cayce
                                                                                Clerk

BARRY WION; CLIFTON BATTLES; LAWRENCE SHIRLEY,

                                                  Plaintiffs-Appellants

v.

STUART JENKINS; RISSIE OWENS,

                                                  Defendants-Appellees


                   Appeal from the United States District Court
                        for the Western District of Texas
                              USDC No. 1:10-CV-84


Before GARZA, SOUTHWICK, and HAYNES, Circuit Judges.
PER CURIAM:*
        Barry Wion, Texas prisoner # 393726, Clifton Battles, Texas prisoner
# 639598, and Lawrence Shirley, Texas prisoner # 712351 (appellants) appeal
the district court’s judgment granting the appellees’ motion for summary
judgment.     The district court dismissed the appellants’ 42 U.S.C. § 1983
complaint and denied the appellants’ cross motion for summary judgment based
on an alleged violation of the Ex Post Facto Clause. The appellants have



       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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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abandoned their claim based on a double jeopardy violation. See Yohey v.
Collins, 985 F.2d 222, 224-25.
      The district court did not abuse its discretion in not affording the
appellants the opportunity to conduct discovery prior to granting summary
judgment; the appellants did not seek discovery prior to or after filing their
motion for summary judgment, and their motion was supported by voluminous
records as well as the attachments to their complaint. See Moore v. Willis Indep.
Sch. Dist., 233 F.3d 871, 876 (5th Cir. 2000). Although the appellants are correct
that the appellees failed to file a timely response to their motion for summary
judgment, the district court subsequently granted a motion for an extension of
time, which it was authorized to do based on the appellees’ ability to show
excusable neglect. See FED. R. CIV. P. 6(b)(1)(B); Pioneer Inv. Services Co. v.
Brunswick Assoc. Ltd. P’ship, 507 U.S. 380, 395 (1993).           The appellants’
contention that the district court abused its discretion in denying their motion
to strike the appellees’ exhibits is without merit because the documents were
relevant to the issues presented by the summary judgment motions. The
appellants cannot challenge the district court’s denial of their motion to add
Vincent Bates as a party plaintiff since he was not a party to the appeal. See
Machella v. Cardenas, 659 F.2d 650, 652 (5th Cir. 1981).
      The appellants’ contention that the Texas Criminal Justice Policy Council
(TCJPC) reports created a genuine dispute of material fact regarding the
retroactive application of parole statutes or policies precluding the appellees’
motion for summary judgment is not supported by a review of the reports or the
affidavit of Carl Reynolds, a long-term counselor and executive with the Texas
prison system, who was familiar with the history of the reports. Reynolds’s
statements that the reports did not establish that new parole laws were
retroactively applied to affect the parole eligibility of offenders was not rebutted
by any evidence provided by the appellants. Rather, the hearing testimony of
Troy Fox presented by the appellants supported the statements in Reynolds’s

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affidavit and showed that sex offenders under prior law had a difficult time
obtaining parole release. The findings in the TCJPC reports did not entitle the
appellants to a summary judgment in their favor.
      Nor have appellants shown that they were entitled to relief based on the
doctrines of issue preclusion, collateral estoppel, or judicial estoppel as a result
of the district court’s ruling in Wion v. Dretke, No. MO-05-CV-146 (W.D. Tex.
Feb. 23, 2007). Although, in Wion, the district court found that a retroactive
application of a parole statute violated the Ex Post Facto Clause, this court
reversed that judgment and ordered that judgment be rendered in favor of the
State. See Wion v. Quarterman, 567 F.3d 146, 148-49 (5th Cir. 2009). There was
no final decision on the ex post facto issue and, thus, the decision had no
preclusive effect. See Ashe v. Swenson, 397 U.S. 436, 443 (1970); Procter &
Gamble Co. v. Amway Corp., 242 F.3d 539, 546 (5th Cir. 2001); Ahrens v. Perot
Systems Corp., 205 F.3d 831, 833 (5th Cir. 2000).
      Also without merit is the appellants’ argument that the district court erred
in relying on Wallace v. Quarterman, 516 F.3d 351 (5th Cir. 2008) to deny relief.
Wilkinson v. Dotson, 544 U.S. 74, 82-84 (2005) determined that a prisoner was
not limited to challenging parole procedures in a federal habeas petition and
may challenge the constitutionality of state parole procedures in a § 1983 action.
Wilkinson, thus, was not contrary to Wallace. Nor was Wallace contrary to the
decisions in California Department of Corrections v. Morales, 514 U.S. 499, 505-
09 (1995) or Garner v. Jones, 529 U.S. 244 (2000). Wallace employed the
analysis used in those decisions in determining that an amendment to Texas
parole laws, changing the number of members on a parole panel and requiring
a two-thirds vote in favor of release created only a most speculative and
attenuated risk of increasing an offender’s term of incarceration and that as
applied, the amendments did not create a significant risk of increasing the
offender’s punishment. Wallace, 516 F.3d at 356 nn.30-34.



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      Lastly, appellants complain that the district court erred in failing to
conduct the significant risk analysis discussed in Garner.           As previously
explained, we have rejected their argument that the district court was bound by
the district court’s analysis in Wion’s habeas case. Ashe, 397 U.S. at 443.
      The magistrate judge considered whether the appellants had shown a
change in law creating a significant risk of increased punishment, the test
employed in Garner.       However, based on the appellants’ reliance on the
cumulative effect of the parole changes and their failure to allege that any
specific law or rule was retroactively applied to create a significant risk of their
longer incarceration, the court lacked any basis for conducting the analysis.
      In subsequent pleadings, the appellants made brief references to Texas
Government Code § 508.046, which changed the number of members required
to sit on a parole board, and Texas Government Code § 508.141(g), which
allowed the Board to change the intervals between parole reconsideration from
one year to set-offs of between one and five years. The appellants made no
argument in their brief about the effect of the application of § 508.046 on their
parole review. Thus, that claim was abandoned. See Yohey, 985 F.2d at 224-25.
      With respect to § 508.141(g), the appellants argued that, since that
amendment was passed, the time between their reconsideration for parole has
exceeded one year. This amendment did not modify the statutory punishment
and did not affect the initial date of the appellants’ parole eligibility. An earlier
reconsideration can be conducted based on changed circumstances. See 37 Tex.
Admin. Code Ann. 145.11. Garner held that the “sum of these factors” showed
that less frequent parole suitability hearings “create[d] only the most speculative
and attenuated possibility of producing the prohibited effect of increasing the
measure of punishment for covered crimes.” 529 U.S. at 250. The appellants
have not stated what particular sets offs were applied in their cases. Nor have
they identified evidence to rebut the summary judgment evidence, particularly
the testimony of Mr. Fox, that due to the seriousness of their offenses, it is

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unlikely that the limited change in review periods would result in a longer
period of incarceration than they would have received under the earlier one-year
set-off rule. The appellants have not shown that the district court erred in
denying their claim of an Ex Post Facto violation based on changes in the parole
laws. The district court’s order granting summary judgment, dismissing the
complaint, and denying the plaintiffs’ motion for summary judgment is
AFFIRMED.
      Their motions to strike and traverse the appellees’ letter brief and the
second motion to strike the out-of-time brief are also DENIED.




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