     Case: 13-41159      Document: 00512749660         Page: 1    Date Filed: 08/28/2014




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

                                    No. 13-41159
                                                                                  Fifth Circuit

                                                                                FILED
                                  Summary Calendar                        August 28, 2014
                                                                           Lyle W. Cayce
RENE ADOLPHO GUZMAN,                                                            Clerk


                                                 Plaintiff-Appellant

v.

RISSI L. OWENS, In His Official Capacity,

                                                 Defendant-Appellee


                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 2:13-CV-101


Before REAVLEY, DENNIS, and SOUTHWICK, Circuit Judges.
PER CURIAM: *
       Rene Adolpho Guzman, Texas prisoner # 239085, appeals the district
court’s dismissal of his 42 U.S.C. § 1983 complaint for failure to state a claim
on which relief may be granted. In 1974, Guzman was convicted of murder in
three cases and sentenced to life imprisonment.
       In his § 1983 complaint, Guzman challenged the most recent denial of
his parole as unconstitutional. Guzman’s claims arise out of changes made to


       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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. 13-41159

the number of board members required to vote for parole. Prior to 1997, parole
determinations were made by panels of three members of the Parole Board.
Effective September 1, 1997, the law was changed to require that two-thirds of
the entire 18-member Board vote for parole in certain cases. See Act effective
Sept. 1, 1997, 75th Leg., R.S. ch. 165, § 12.01; TEX. GOV’T CODE ANN. § 508.046
(Vernon 1998). In 2004, the Board’s size was reduced from 18 members to
seven members.        In his complaint, Guzman argued that the retroactive
application of § 508.046 by the Parole Board violated the Ex Post Facto Clause.
He also contended that the process by which the Board operated violated his
due process rights.
      We review a district court’s dismissal of a complaint for failure to state
a claim de novo. Berry v. Brady, 192 F.3d 504, 507 (5th Cir. 1999). To avoid
dismissal for failure to state a claim, a plaintiff ’s complaint must plead enough
facts to “state a claim to relief that is plausible on its face.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570
(2007)).   The factual allegations must “raise a right to relief above the
speculative level.” Bell Atlantic, 550 U.S. at 555. In reviewing a dismissal for
failure to state a claim, the “court accepts all well-pleaded facts as true,
viewing them in the light most favorable to the plaintiff.” In re Katrina Canal
Breaches Litigation, 495 F.3d 191, 205 (5th Cir. 2007) (internal quotation
marks and citation omitted).
      Although Guzman has proffered evidence that two members of the
Parole Board voted in favor of his parole, such evidence is speculative at best
and is not sufficient to raise a cognizable ex post facto claim. See Wallace v.
Quarterman, 516 F.3d 351, 354-56 (5th Cir. 2008). Just as in Wallace, Guzman
has not presented any evidence to indicate that the two Board members who
voted in favor of “further investigation” of his parole suitability, “would have



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                                 No. 13-41159

been assigned to [his] three-person panel. [Guzman, therefore,] produced only
speculative evidence that the new rules produced a risk of increased
confinement.” Id. at 356; see also Hunter v. Owens, 375 F. App’x 427, 428-29
(5th Cir. 2010). Thus, while “[i]ncreasing the number of board members who
must vote on parole may ‘create more than a speculative, attenuated risk of
affecting a prisoner’s actual term of confinement’ in certain circumstances,” the
facts here do not state a claim of relief that as applied to Guzman, § 508.046
violates the Ex Post Facto Clause. See id. at 355-56. As to Guzman’s due
process claim, because there is no liberty interest in parole under Texas law,
Texas inmates cannot mount challenges against state parole review
procedures on procedural or substantive due process grounds. See Johnson v.
Rodriguez, 110 F.3d 299, 308 (5th Cir. 1997); Orellana v. Kyle, 65 F.3d 29, 332
(5th Cir. 1995).
      In light of the foregoing, the judgment of the district court is
AFFIRMED.




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