     Case: 10-20394 Document: 00511336389 Page: 1 Date Filed: 12/30/2010




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

                                                 FILED
                                                                         December 30, 2010
                                     No. 10-20394
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

DANIEL K. JOHNSON,

                                                   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 Southern District of Texas
                              USDC No. 4:09-CV-1261


Before JOLLY, GARZA, and STEWART, Circuit Judges.
PER CURIAM:*
       Daniel K. Johnson, Texas prisoner # 274157, has applied for a certificate
of appealability (COA) for an appeal from the district court’s judgment
dismissing his application for a writ of habeas corpus challenging the 2008
decision of the Texas Board of Pardons and Paroles (Parole Board) denying him
release on parole. Johnson raises the following substantive issues: (1) whether
the Parole Board violated the Ex Post Facto Clause by applying parole statutes,


       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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. 10-20394

guidelines, rules, customs and practices that were not in effect at the time of
Johnson’s conviction and sentencing; (2) whether Johnson’s rights to due
process, to equal protection, and against ex post facto laws were violated because
the Parole Board did not rely on an adequate report on his future dangerousness
based on the findings of a psychologist or psychiatrist; (3) whether the Parole
Board was qualified to assess Johnson’s future dangerousness; (4) whether the
revised Parole Guidelines considered by the Parole Board in determining
Johnson’s risk of recidivism were based upon acceptable research; (5) whether
the Parole Board retaliated against Johnson for various lawsuits he has filed
against the Parole Board; (6) whether the Parole Board’s no-tolerance policy for
persons serving life sentences for aggravated rape violated Johnson’s right to
due process; (7) whether the Parole Board violated Johnson’s right to due process
by administratively finding him guilty of five unadjudicated offenses, and by
disregarding the fact that the limitation period as to those offenses had lapsed;
(8) whether Johnson was harmed by judicial construction of criminal statutes
enacted after his offense; and (9) whether Johnson was denied credit for good
time and calendar time served in violation of his equal protection rights.
Johnson contends also that the district court erred in denying his motions for
discovery and for an evidentiary hearing and his motion for relief from the
judgment.
      Because Johnson has not shown that jurists of reason could find it
debatable whether the district court committed a substantive or procedural error
in dismissing his habeas application, see Slack v. McDaniel, 529 U.S. 473, 484
(2000), the request for a COA is DENIED.
      The district court refused to grant Johnson permission to pursue his
retaliation claim under 42 U.S.C. § 1983 because he was a sanctioned litigant
with an unpaid $250 sanction. Although Johnson asserts correctly that the
sanction has now been paid, the sanction prohibited Johnson from filing new
actions before paying the sanction or obtaining leave of court. As he did neither,

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                                  No. 10-20394

the district court did not abuse its discretion in denying permission. The district
court’s judgment is AFFIRMED.




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