     Case: 12-40307       Document: 00512205969         Page: 1     Date Filed: 04/12/2013




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

                                                                            FILED
                                                                           April 12, 2013

                                       No. 12-40307                        Lyle W. Cayce
                                                                                Clerk

THOMAS ELLASON,

                                                  Plaintiff-Appellant
v.

RISSIE OWENS; STUART JENKINS; OLIVER J. BELL,

                                                  Defendants-Appellees



                   Appeal from the United States District Court
                        for the Southern District of Texas
                              USDC No. 2:11-CV-378


Before JONES, BARKSDALE, and SOUTHWICK, Circuit Judges.
PER CURIAM:*
       Thomas Ellason is serving a life sentence for the capital murder of his
elderly neighbor during a burglary in 1986. He claims in this Section 1983 civil
rights action that he has retroactively and improperly become ineligible for
release under mandatory supervision due to a decision of the Texas Court of
Criminal Appeals. Additionally, he claims that changes to the Texas parole
statutes violate the Ex Post Facto Clause. The district court dismissed the
claims. We AFFIRM.

       *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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. 12-40307

                                  DISCUSSION
      Because Ellason is seeking a ruling that he is eligible to be considered for
parole despite a state court decision to the contrary, and he is not requesting
“immediate or speedier release” from custody, his claims are cognizable under
Section 1983. Wilkinson v. Dotson, 544 U.S. 74, 82 (2005). Proceeding pro se,
Ellason claims: (1) he did not have fair warning that the penalty for his 1986
crime would be increased by Ex Parte Franks, 71 S.W.3d 327 (Tex. Crim. App.
2001); and (2) the amended parole statutes violate the Ex Post Facto Clause.
Although Ellason’s briefing is minimal, it is sufficient to apply the principle that
we construe pro se arguments liberally. Bustos v. Martini Club, Inc., 599 F.3d
458, 461-62 (5th Cir. 2010).
A.    The Franks Decision and “Fair Warning”
      We review de novo the legal issue of whether Ellason can constitutionally
be made subject to a state court decision handed down after his offense that
those sentenced to life imprisonment in Texas are ineligible for mandatory
supervision. Meza v. Livingston, 607 F.3d 392, 398 (5th Cir. 2010). Ellason
contends the decision in Franks was an “unexpected and indefensible”
construction of the law and thus violated due process.
      In 1986, when Ellason committed the murder, Texas law provided that an
inmate “who is not on parole, except a person under sentence of death, shall be
released to mandatory supervision . . . when the calendar time he has served
plus any accrued good conduct time equal the maximum term to which he was
sentenced.” TEX. CODE CRIM. PROC. art. 42.12, § 15(c) (West 1987); art. 42.18, §
8(c) (1987) (“Text of (c) effective until September 1, 1987 ”). That statute makes
no specific reference to inmates with life sentences.


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                                   No. 12-40307

      In 2001, the Texas Court of Criminal Appeals held that “a life-sentenced
inmate is not eligible for release to mandatory supervision” under Texas law.
Franks, 71 S.W.3d at 327 (citing art. 42.12, § 15(c) (1981)). Franks committed
his crime in 1981, but the court said the statute had not substantively changed
since that time. Id.; see art. 42.12 § 15(c) (1987); see also TEX. GOV’T CODE ANN.
§ 508.147 (West 2012). The form of the statute applicable to Ellason, who
committed his crime in 1986, similarly would not have changed meaningfully by
2001 when Franks was decided. The court noted that Texas never had actually
released those sentenced to life imprisonment into mandatory supervision.
Franks, 71 S.W. 3d at 328 n.1. The court determined that “it is mathematically
impossible to determine a mandatory supervision release date on a life sentence
because the calendar time served plus any accrued good conduct time will never
add up to life.” Id. at 328. The court declined “arbitrarily . . . to substitute some
number of years for a life sentence.” Id.
      This court soon relied on Franks to reject the contention that inmates
sentenced to life were entitled to mandatory supervision. Arnold v. Cockrell, 306
F.3d 277, 278-79 (5th Cir. 2002). We held that a Texas inmate serving a life
sentence was not eligible for release under the mandatory supervision statute
and had no constitutionally protected interest in the loss of good-time credits.
Id. at 279. We pointed out there had been some disagreement among federal
district courts in Texas about whether the statute applied to those with life
sentences, but in Franks the Texas court resolved the issue by holding “neither
the 1981 statute nor the current statute permitted release for prisoners
sentenced for life.” Id. Our interpretation of Texas law in Arnold, which we




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                                  No. 12-40307

repeat here, is that at least since 1981, the relevant statute did not make
mandatory supervision available to those with life sentences.
      Despite Arnold, Ellason seeks relief based on the Supreme Court’s
statement that “limitations on ex post facto judicial decisionmaking are inherent
in the notion of due process,” and due process requires fair warning of what is
prohibited conduct and the penalties for it. Rogers v. Tennessee, 532 U.S. 451,
456-57 (2001). When “a judicial construction of a criminal statute is unexpected
and indefensible by reference to the law which had been expressed prior to the
conduct in issue, the construction must not be given retroactive effect.” Id. at
457 (quotation marks, alterations, and citation omitted).
      Rogers explained that the due process concept of fair warning seeks to
avoid “attaching criminal penalties to what previously had been innocent
conduct.” Id. at 459. There is no caselaw or other authority we have discovered
that indicates Franks made a change, much less one that was “unexpected and
indefensible by reference to the law which had been expressed prior” to Ellason’s
criminal conduct. Perhaps there was uncertainty prior to Franks, but there was
not a clear availability of mandatory supervision that Franks then withdrew.
      Even had Franks effected some change to existing law, we conclude, as did
a previous panel of this court, that there is no authority for the proposition “that
a retroactive judicial interpretation effecting a change in sentencing, parole,
probation, or mandatory supervised release law that disadvantages a prisoner
gives rise to a Due Process violation.” Casterline v. Thaler, 494 F. App’x 500,
502 (5th Cir. 2012) (unpublished). It is true that Casterline concluded that prior
to Franks, those sentenced to life in prison were eligible for release to mandatory
supervision. Id. That is why the court used terminology of “a retroactive judicial


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                                      No. 12-40307

interpretation” that changed eligibility. We do not interpret Franks, though, to
have changed anything. What Franks did was to make clear that mandatory
supervision is unavailable to life-sentenced inmates, thus explaining what the
mandatory supervision statute on its face did not explain (i.e., how to calculate
eligibility under a life sentence).
      There is no due process problem in denying Ellason eligibility for
mandatory supervision.
B.    Ex Post Facto Claims Concerning Parole Statutes
      We construe four of Ellason’s arguments on appeal as ex post facto claims
regarding parole eligibility. The parties agree that those with life sentences are
not automatically excluded from consideration for parole. Ellason raised ex post
facto claims in the district court, but the district court did not address them.
Because the legal issues were sufficiently presented to the district court, though
not ruled upon, we review these claims de novo. See United States v. Young, 585
F.3d 199, 202 (5th Cir. 2009).
      In Texas, inmates serving life sentences are eligible to be considered for
discretionary parole. Franks, 71 S.W.3d at 328 n.1. Retroactive changes to
parole laws may, in some cases, violate the Ex Post Facto Clause. Garner v.
Jones, 529 U.S. 244, 249-50 (2000). In evaluating an alleged ex post facto
violation, the reviewing court must analyze the level of risk that an inmate’s
prison stay will be longer because of a change in the law that applies
retroactively. Id. at 255. A new procedure that creates only a “speculative and
attenuated risk of increasing” the punishment does not violate the Ex Post Facto
Clause. Hallmark v. Johnson, 118 F.3d 1073, 1078 (5th Cir. 1997). “Rules
affecting eligibility for parole may violate the clause, but discretionary rules


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affecting suitability do not.” Wallace v. Quarterman, 516 F.3d 351, 355 (5th Cir.
2008).
      First, Ellason argues that he has been “singled out for a risk assessment
that must be developed before a [Texas Board of Pardons and Paroles (“Parole
Board”)] member may vote on his parole.” Ellason does not identify any specific
guideline or explain how any guideline creates even a “speculative and
attenuated risk of increasing the measure of punishment.” Hallmark, 118 F.3d
at 1078. Even when construed with the utmost liberality, this vague and
conclusional assertion does not allege a cognizable constitutional violation. See
Calif. Dep’t of Corr. v. Morales, 514 U.S. 499, 508-09 (1995).
      Second, Ellason asserts that the district court mistakenly applied a
decision that has since been overruled. That is incorrect, as the district court did
not address his ex post facto claims at all.
      Third, Ellason refers to “saving clauses” that preclude the retroactive
application of parole statutes. He abandons this argument by failing to argue
it in his brief. See Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993).
      Finally, Ellason contends this court remanded similar claims in a previous
decision. See Hunter v. U.S. Parole Comm’n, 308 F. App’x 856 (5th Cir. 2009).
There, the district court summarily dismissed a prisoner’s contentions that
revised federal parole statutes were applied in violation of the Ex Post Facto
Clause. Id. at 858-59. This court remanded because “[t]he district court should
have compared the guidelines at issue with the old guidelines to determine
whether there were facial distinctions and whether their applications as to
Hunter yielded different results.” Id. at 859.




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      In this case, the district court did not consider Ellason’s Ex Post Facto
Clause claims at all. Nonetheless, remand is not warranted because Ellason’s
brief falls far short of identifying a cognizable constitutional claim. Even if his
district court pleadings are considered, he shows no more than a speculative
possibility that the changes might affect the Parole Board’s assessment of his
suitability for parole. See Simpson v. Ortiz, 995 F.2d 606, 610 (5th Cir. 1993).
None of Ellason’s ex post facto claims concerning parole statutes warrant relief.
      AFFIRMED.




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