                                                              United States Court of Appeals
                                                                       Fifth Circuit
                                                                    F I L E D
                   UNITED STATES COURT OF APPEALS                 September 29, 2005
                            FIFTH CIRCUIT
                                                                Charles R. Fulbruge III
                                                                        Clerk
                              No. 02-41690


                         GILBERT ROY GOODWIN,

                                                      Petitioner-Appellant,
                                 versus

  DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
               CORRECTIONAL INSTITUTIONS DIVISION,

                                                      Respondent-Appellee.


           Appeal from the United States District Court
                 for the Eastern District of Texas
                           (1:02-CV-578)


Before BARKSDALE, GARZA, and STEWART, Circuit Judges.

PER CURIAM:*

     Claiming    his   parole-denial       violated    the   United     States

Constitution’s   Ex    Post   Facto   Clause,   Gilbert      Goodwin,    Texas

prisoner # 749472, appeals, pro se, the denial of federal habeas

relief.   AFFIRMED.

                                      I.

     In 1993, Goodwin was convicted in Texas state court of felony

aggravated sexual assault.       He has been denied parole twice, in



     *
      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this opinion should not be published and is not precedent except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.

                                      1
1999 and 2001.      On 25 June 2002, more than a year after the second

parole-denial, Goodwin filed a state habeas application, claiming:

the Texas Board of Pardons and Paroles denied him parole using a

procedure enacted after the commission of his offense, thereby

violating the Ex Post Facto Clause.        U.S. CONST. art. I, § 9, cl.

3.   Pursuant to a recommendation by the state habeas trial court

(without findings and conclusions), the Texas Court of Criminal

Appeals on 14 August 2002, without written order, denied his

application.

     Later   that    month,   Goodwin   sought   federal   habeas   relief,

pursuant to 28 U.S.C. § 2254.      The State was not served.        Instead,

the district court denied relief, adopting the magistrate judge’s

report and recommendation which stated, inter alia, that the

“parole review process is a procedural change that could not

reasonably be considered substantial from the perspective of the

defendant at the time the offense was committed” and, therefore,

did not violate the Ex Post Facto clause.

     In addition, the district court denied Goodwin a certificate

of appealability (COA).        Our court granted a COA and ordered

additional briefing on:       whether the change in the parole-voting

requirement violated the Ex Post Facto clause; and, sua sponte,

whether Goodwin’s appeal would be moot if he were released from

prison.




                                    2
     Goodwin’s habeas petition having been denied by the district

court without the State being served, the State’s first appearance

was in response to this appeal.           The State claims, inter alia, a

time-bar.    Because the record was not sufficient to decide that

claim, we retained jurisdiction and remanded to the district court

for it to decide the time-bar claim under 28 U.S.C. § 2244(d)(1)(D)

(one-year limitations period may begin to run on the date the

factual predicate of the claim could have been discovered through

the exercise of due diligence).           Goodwin v. Dretke, No. 02-41690

(5th Cir. 29 June 2004) (Goodwin I).         Instead, apparently applying

§ 2244(d)(1)(A) (one year period may begin to run the date the

judgment becomes final), the district court ruled Goodwin’s claim

was time barred. Accordingly, concerning the second (2001) parole-

denial, we again remanded for a determination of the time-bar claim

under subpart (D).        Goodwin v. Dretke, No. 02-41690 (5th Cir. 16

December 2004) (Goodwin II).

     Following our second remand, an evidentiary hearing was held

to determine when, pursuant to subpart (D), Goodwin could have

discovered the factual predicate of his claim through the exercise

of due diligence.         Adopting the magistrate judge’s report and

recommendation, the district court made the following factual

findings    and   ruled    that,   concerning   the   2001   parole-denial,

Goodwin’s claim was not time barred: “1) [Goodwin] did not receive

official notice that his parole application was denied; (2) [he]


                                      3
discovered on July 1, 2001 that his parole application was denied

after a   visit     with   family   members;   (3)   [Goodwin]   could   have

discovered, by exercising due diligence, on July 1, 2001 that his

second parole application had been denied; (4) [he] could not have

discovered the factual basis of his claims until July 12, 2001, the

earliest he could have received a copy of the minute sheet by

exercising due diligence; (5) [he] placed his federal petition in

the prison mail system on August 20, 2002; and (6) the petition is

not barred by the statute of limitations.”

                                      II.

      At issue are:    (1) whether Goodwin’s federal habeas petition

is   time-barred;    and   (2)   if   not,   whether   the   parole-voting-

procedure change violated the Ex Post Facto clause.                (Because

Goodwin is not due for release until March 2006, he and the State

did not brief the other issue for which we granted COA - whether

his appeal would be moot if he were released.          For the same reason,

we need not address it.)

                                      A.

      For the State’s time-bar claim, the district court’s findings

of fact are reviewed for clear error; its conclusions of law, de

novo.   E.g., Foster v. Johnson, 293 F.3d 766, 776 (5th Cir.), cert.

denied, 537 U.S. 1054 (2002).

      In May 1991, when Goodwin committed the sexual assault for

which he was convicted, parole decisions were made by panels of


                                       4
three Board members and required a majority vote.          TEX. CRIM. PROC.

art. 42.18 § 7(e) (Vernon 1991).       A new procedure, enacted in 1995,

required the votes of two-thirds of the entire Board (15 members)

to grant parole.     TEX. GOV’T CODE ANN. § 508.046 (Vernon 2001).

       The new procedure was used for both of Goodwin’s parole-

denials (1999 and 2001).        Goodwin does not contend he would have

been   granted   parole   in    his   first   hearing   under   the   former

procedure.   Rather, he contends:         the voting records from his June

2001 parole-denial indicate all three members who would have been

assigned to review him under the former procedure voted in favor of

parole; therefore, he would have been granted parole under that

procedure.   According to Goodwin, using the new procedure for his

2001 parole proceeding violated the Ex Post Facto Clause because it

increased his sentence.        Therefore, he maintains his habeas claim

did not arise until his second parole-denial (June 2001).

       Because Goodwin filed his § 2254 habeas petition after the

effective date of the Antiterrorism and Effective Death Penalty Act

(AEDPA), that Act controls.       E.g., Scott v. Johnson, 227 F.3d 260,

262 (5th Cir. 2000), cert. denied, 532 U.S. 963 (2001).                Under

AEDPA, there is a one-year limitations period for state prisoners’

federal petitions, which runs from the latest of four events.            See

28 U.S.C. § 2244(d)(1)(A)-(D).            Moreover, the period is tolled

while a state habeas petition for the claim is pending.          28 U.S.C.

§ 2244(d)(2).


                                      5
     As noted, we held in Goodwin I that, for limitations purposes,

subpart (D) governs the timeliness vel non of the filing of claims

predicated on parole decisions.     Accordingly, the one-year filing

period began to run on the date Goodwin could have “discovered” the

“factual predicate of [his] claim” for the parole-denial “through

the exercise   of   due   diligence”.   28   U.S.C.   §   2244(d)(1)(D).

Following the Goodwin II remand and the evidentiary hearing held as

a result, the district court found, inter alia: Goodwin discovered

on 1 July 2001 that his parole application was denied; he placed

his petition in the prison mail system on 20 August 2002; and it is

not time-barred.     Although the district court did not address

tolling, it implicitly found the limitations period was tolled from

25 June 2002 to 14 August 2002, while Goodwin’s state habeas

petition was pending.     See 28 U.S.C. § 2244(d)(2).       Accordingly,

if, under § 2244(d)(1)(D), the limitations period began to run on

1 July 2001, it was tolled from 25 June to 14 August 2002, leaving

Goodwin seven days to file his federal petition; and that       petition

was timely if filed by 21 August 2002, seven days after the end of

tolling.   Again, Goodwin’s petition was filed on 20 August.

     Goodwin concedes that, if his claim arose upon his first

parole-denial in 1999, his petition is time barred.         He asserts,

however:   his claim did not arise until his second denial, when he

would have been granted parole had the former procedure been used;

and the factual predicate of his claim is, therefore, the 2001


                                   6
denial.    He does not challenge his first parole determination.                He

asserts that, because the two parole board decisions were different

and occurred on different dates, each could be the basis of a

separate claim.

     Following     the      district        court’s    ruling,   we     required

supplemental briefing. (Pursuant to Goodwin’s motion, we GRANT him

leave to file a supplemental reply brief and have considered it.)

In its supplemental brief, the State does not contend that, if

Goodwin’s claim arose from his second (2001) parole denial, his

claim would be barred.        Rather, the State contends:         because the

new parole voting requirement was first applied to Goodwin in his

1999 parole hearing, his claim arose then, and is time-barred.

     It appears there is no case addressing this issue in the

parole-hearing-habeas-claim context.            Based on the plain language

of subpart (D), the one year period begins to run on “the date on

which the factual predicate of the claim ... could have been

discovered through the exercise of due diligence”.                28 U.S.C. §

2244(d)(1)(D). In determining that a defendant’s claim should have

been brought as a habeas, rather than as a 42 U.S.C. § 1983, claim,

our court held:     “if a prisoner is challenging the result of a

specific    defective    parole    hearing       ...   and   resolution       would

automatically     entitle    him   to       accelerated   release,     then    the

challenge must be pursued by writ of habeas corpus”.                  Allison v.

Kyle, 66 F.3d 71, 73     (5th Cir. 1995) (citation omitted).


                                        7
     As stated, Goodwin does not maintain that, for the 1999 parole

hearing, he would have been entitled to release under the former

procedure. Therefore, he could not maintain a habeas claim for it.

The factual predicate for Goodwin’s habeas claim did not arise

until the 2001 parole determination. Again, the predicate is that,

under the former procedure and based on the results of the parole

board vote, Goodwin would have been released. And, the limitations

period did not begin to run on that claim until he could have

discovered, with due diligence, the predicate of that claim.    As

noted, the State does not contend, nor do we find, that the

district court erred in finding that date was 1 July 2001.

     Because Goodwin’s habeas claim did not arise until his second

parole hearing, he was not required to file a claim as to his first

parole-denial to preserve his rights under the Ex Post Facto Clause

for the second denial.   Therefore, Goodwin’s petition is not time-

barred.   (Accordingly, we need not reach Goodwin’s alternative

equitable-tolling claim.)

                                B.

     For Goodwin’s Ex Post Facto claim, the district court’s

findings of fact are reviewed for clear error; its conclusions of

law, de novo.   E.g., Foster, 293 F.3d at 776.    Relief cannot be

granted under AEDPA unless the state court proceeding resulted in:

(1) “a decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by


                                 8
the Supreme Court of the United States”, 28 U.S.C. § 2254(d)(1); or

(2) “a decision that was based on an unreasonable determination of

the facts in light of the evidence presented in the State court

proceeding”.   28 U.S.C. § 2254(d)(2).       “[T]he AEDPA inquiry is not

altered when, as in this case, state habeas relief is denied

without an opinion.”    Schaetzle v. Cockrell, 343 F.3d 440, 443 (5th

Cir. 2003) (citation omitted), cert. denied, 540 U.S. 1154 (2004).

“For such a situation, our court:       (1) assumes that the state court

applied the proper clearly established Federal law; and (2) then

determines whether its decision was contrary to or an objectively

unreasonable application of that law.”        Id. (quotation omitted).

     “Retroactive changes in laws governing parole of prisoners ...

may be violative” of the Ex Post Facto Clause.           Garner v. Jones,

529 U.S. 244, 250 (2000).      In determining whether the change in

Texas parole procedures violated the Ex Post Facto Clause, the

“controlling inquiry” is “whether retroactive application of the

change ... created ‘a sufficient risk of increasing the measure of

punishment   attached   to   the   covered   crimes’”.      Id.   (quoting

California Dept. of Corr. v. Morales, 514 U.S. 499, 509 (1995)).

As both sides agree, Morales requires application of a two-part

test:   (1) whether the change was retroactive; and (2) if so,

whether it created a sufficient risk of increasing punishment.

Both sides also agree that the change was retroactive.         Therefore,

we must determine whether, under Garner, the rule change violates


                                    9
the Ex Post Facto Clause either facially or as applied.          Garner,

529 U.S. at 255 (“When the rule does not by its own terms show a

significant risk, the respondent must demonstrate ... that its

retroactive   application   will   result   in   a   longer   period   of

incarceration than under the earlier rule.”); see also Lynce v.

Mathis, 519 U.S. 433 (1997).

     The State contends:    because the change does not alter the

standards for parole eligibility or the proportion of total votes

an inmate must receive to be paroled (two-thirds), it does not make

Goodwin’s punishment more severe or burdensome. Thus, according to

the State, the change does not create the requisite sufficient risk

of increased punishment.

     Goodwin presents only an as-applied claim.         To support his

claim that he would have been paroled following the 2001 vote had

the former procedure been used, he relies on the voting record from

that hearing, attached as an exhibit to his state habeas petition.

Relying on that exhibit, he claims three of the four Angleton Board

members voted to grant him parole.          This is not evident from

reading the exhibit.    At the evidentiary hearing following our

second remand (for considering only the time-bar claim and for

which Goodwin had counsel), testimony by Troy Fox, Section Director

for Review and Release Processing of the Parole Division for the

Texas Department of Criminal Justice, does support this contention.

Fox testified that three of the four parole board members from the


                                   10
Angleton Board Office, three of whom voted to parole Goodwin, would

have voted on Goodwin’s parole under the former procedure.              (Fox

also testified that the “yes” vote was conditional on Goodwin’s

successful completion of an 18-month rehabilitation program for sex

offenders.      According to Fox, had Goodwin successfully completed

that program, he would have been released, but not before December

2002.)

      Under AEDPA, however, we must assess the reasonableness of the

state court decision in the light of the evidence that was before

it.   See 28 U.S.C. 2254(d)(2).      Arguably, Goodwin does not satisfy

the standard necessary for release.        We need not decide that issue,

however, because Fox’s testimony was not presented in state court.

(Furthermore, his testimony was not germane to the time-bar issue

before the district court on remand.) The only evidence before the

state court concerning the second parole denial was the voting

sheet, attached by Goodwin as an exhibit to his habeas petition.

There was no evidence that the three members who voted for parole

would    have   been   Goodwin’s   panel   under   the   former   procedure.

Goodwin made only unsupported conclusory statements to that effect

before the state court.      Accordingly, it was not unreasonable for

the state court to determine, based on the record          before it, that,

under established federal law, Goodwin was not entitled to habeas

relief.




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                         III.

For the foregoing reasons, the denial of habeas relief is

                                                AFFIRMED.




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