395 F.3d 216 (5th Cir. 2004), 03-50743, Coleman v. Dretke

Docket Nº:03-50743.
Citation:395 F.3d 216
Party Name:Tony Ray COLEMAN, Petitioner-Appellant, v. Doug DRETKE, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.
Case Date:December 21, 2004
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

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395 F.3d 216 (5th Cir. 2004)

Tony Ray COLEMAN, Petitioner-Appellant,


Doug DRETKE, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee.

No. 03-50743.

United States Court of Appeals, Fifth Circuit

December 21, 2004

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Danel Edward Laytin (argued), Elizabeth A. Larsen, Kirkland & Ellis, Chicago, IL, for Petitioner-Appellant.

Ana Jordan (argued), Office of Atty. Gen. for State of TX, Austin, TX, for Respondent-Appellee.

Appeal from the United States District Court for the Western District of Texas.

Before REAVLEY, BENAVIDES and PRADO, Circuit Judges.

REAVLEY, Circuit Judge:

Tony Ray Coleman appeals the district court's denial of his application for writ of habeas corpus and contends that the state must provide due process before imposing sex offender registration and therapy as conditions to the release on mandatory supervision of a prisoner who has never been convicted of a sex crime. We agree that it must.

I. Background

Coleman was convicted of burglary of a habitation in 1986 and sentenced to thirty years incarceration. He was paroled in 1991. While on parole, the state indicted Coleman for aggravated sexual assault of a child and indecency with a child by contact. He pleaded guilty to and was convicted of only misdemeanor assault. The state revoked his parole following the assault conviction and he was reincarcerated.

On January 17, 2001, Coleman was released on mandatory supervision on the condition that he reside in a halfway house until employed. 1 On February 27, 2001, the parole panel imposed two additional conditions on his release, requiring him to register as a sex offender and attend sex offender therapy. Coleman was not given advance notice or a hearing to contest the imposition of these conditions. He registered, but failed to enroll or participate in therapy. As a result, his parole was revoked on July 9, 2001.

Coleman challenged the revocation in a pro se habeas petition, alleging violations of the Due Process and Ex Post Facto Clauses of the federal Constitution. The Texas Court of Criminal Appeals denied the petition without written order on May 29, 2002. Coleman then filed his federal habeas petition under 28 U.S.C. § 2254, also pro se. On June 4, 2003, the district court denied the petition. This court granted Coleman a certificate of appealability on his due process claims. 2

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II. Procedural Default

The state contends that Coleman procedurally defaulted two of his claims by failing to include them in his state habeas petition or properly supplement the petition. Coleman responds that his claims were fairly presented in his state petition and his self-styled "reply" to the state's general denial. We review whether a habeas petitioner's claims have been procedurally defaulted de novo. 3

Procedural default can occur in two ways. First, "[i]f a state court clearly and expressly bases its dismissal of a prisoner's claim on a state procedural rule, and that procedural rule provides an independent and adequate ground for dismissal, the prisoner has procedurally defaulted his federal habeas claim." 4 Second, if the prisoner fails to exhaust available state remedies, and the state court to which the prisoner would have to present his claims in order to exhaust them would find the claims procedurally barred, the prisoner has defaulted those claims. 5

The Texas Court of Criminal Appeals did not "clearly and expressly" base its denial of Coleman's application on a procedural rule, so the first kind of procedural default is not present here. 6 The state argues that Coleman did not exhaust his state remedies, because he never properly presented two of his claims to the state court. A prisoner fairly presents a claim to the state court when she asserts the claim "in terms so particular as to call to mind a specific right protected by the Constitution" or alleges "a pattern of facts that is well within the mainstream of constitutional litigation." 7

We conclude that Coleman's reply adequately presented his claims to the state court. Coleman made those claims in his reply filed with the state trial court twelve days before it issued its recommendation and forwarded the habeas record to the Texas Court of Criminal Appeals. The Court of Criminal Appeals received his reply one month before it denied his petition. The state courts thus had ample time to consider all of Coleman's claims, and no evidence indicates that they regarded his reply as untimely. The state courts' failure to expressly rule on those claims does not prevent the claim from

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being exhausted. 8 Coleman successfully exhausted his state remedies and has not defaulted any claims.

III. Procedural Due Process

Coleman argues that the parole panel's imposition of sex offender registration and therapy as conditions to his parole, without providing him the opportunity to contest his sex offender status, violated his right to due process. We review the district court's denial of habeas relief on this legal issue de novo. 9 Where, as here, the state court has adjudicated the merits of a state petition on a question of law, we must affirm the state's denial of habeas relief unless the decision was "contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States." 10 A state court's decision is "contrary to" federal law if the court "arrive[d] at a conclusion opposite to that reached by [the Supreme] Court on a question of law or decides a case differently than [the] Court has on a set of materially indistinguishable facts." 11

The Court's precedent dictates that Coleman's right to procedural due process depends on a two-step inquiry. We must first determine whether Coleman had a liberty interest in not having sex offender conditions placed on his parole, and, if so, whether the state provided constitutionally sufficient procedures before imposing them. 12 The state does not dispute that it provided no process in imposing the conditions, and that Coleman, not having been convicted of a sex offense, has never had an opportunity to contest his sex offender status. Thus, if federal law, clearly established by the Court, requires the conclusion that Coleman had a liberty interest in being free from sex offender conditions, we must grant him relief.

A liberty interest may arise from two sources--the Due Process Clause itself or state law. 13 Liberty interests may be circumscribed, however, when an individual has been convicted of a crime. 14 Convicted criminals' liberty interests are subject to "the nature of the regime to which they have been lawfully committed." 15 Even so, "prisoners do not shed all constitutional rights at the prison gate." 16 Despite the restrictions imposed by incarceration, the Due Process Clause guarantees a prisoner some process before the government can impose conditions that are " 'qualitatively different' from the punishment characteristically suffered by a person convicted of [the] crime, and [which have] 'stigmatizing consequences.' " 17

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Restrictions also attend parole, "an established variation on imprisonment of convicted criminals." 18 These conditions of release are necessary to achieve parole's purpose of reintegrating the individual into society while preventing further antisocial acts. 19 However, as in the prison context, a condition may present such a "dramatic departure from the basic conditions" of a parolee's sentence that the state must provide some procedural protections prior to its imposition. 20

Coleman argues that, under the Court's decision in Vitek v. Jones, the sex offender conditions placed on his parole present such a dramatic departure from the basic conditions of parole that the Due Process Clause of the Fourteenth Amendment mandates procedural protections. 21 In Vitek, the Court found unconstitutional a state law that allowed prison officials to identify inmates as mentally ill and transfer them to mental institutions for involuntary confinement and treatment without a hearing. 22 Because of the associated stigma, the Court held that involuntary commitment to an institution went beyond the ordinary loss of freedom suffered by inmates. 23 The Court noted that "[a]mong the historic liberties protected by the Due Process Clause is the right to be free from, and to obtain judicial relief for, unjustified intrusions on personal security." 24 Based on the combination of stigma and compelled behavior modification treatment, the court held that the inmate had been deprived of a protected liberty interest, and thus the state was required to provide procedural protections. 25

Applying Vitek in the sex offender arena, the Ninth and Eleventh Circuits have held that prisoners who have not been convicted of a sex offense have a liberty interest created by the Due Process Clause in freedom from sex offender classification and conditions. 26 We agree.

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The facts of the present case are materially indistinguishable from Vitek. As in Vitek, the state imposed stigmatizing classification and treatment on Coleman without providing him any process. 27 The state's sex offender therapy, involving intrusive and behavior-modifying techniques, is also analogous to the treatment provided for in Vitek. 28 Although many parolees are required to participate in some form of counseling or treatment as a condition on their release, we find that, due to its highly invasive nature, Texas's sex offender therapy program is "qualitatively different" from other conditions which may attend an inmate's release. 29 Accordingly, the Due Process Clause, as interpreted in Vitek, provides Coleman with a liberty interest in freedom from the stigma and compelled treatment on which his parole was conditioned,...

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