Coleman v. Dretke, 053105 FED5, 03-50743

Docket Nº:03-50743
Party Name:Tony Ray Coleman, Petitioner-Appellant, v. Doug Dretke, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Petitioner-Appellant.
Case Date:May 31, 2005
Court:United States Courts of Appeals, Court of Appeals for the Fifth Circuit

Tony Ray Coleman, Petitioner-Appellant,


Doug Dretke, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Petitioner-Appellant.

No. 03-50743

United States Court of Appeals, Fifth Circuit

May 31, 2005

REVISED MAY 31, 2005.


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

Before REAVLEY, BENAVIDES and PRADO, Circuit Judges.


Because less than a majority of judges in active service have voted in favor of granting the petition for en banc rehearing, the petition is denied. To avoid confusion about our decision, we think it necessary that we write further to correct the mistakes of the accompanying dissent on the record and the law.

I. The Record

Tony Ray Coleman has never been convicted of a sex offense or otherwise found to be a sex offender. He did not "stipulate" to sex offender conditions upon his release on January 17, 2001, as the dissent states. The parole board imposed those conditions a month after he had been released without allowing Coleman any opportunity to object. The conditions took by action of the parole board and Coleman was then required to acknowledge their imposition. The dissent repeats a new and unexplained assertion from the state's petition for rehearing that the requirement for registration as a sex offender has been dropped. Coleman was required by the board and his parole officer to register as a sex offender, and did register with the Austin police. Coleman remains imprisoned because he failed to submit to sex offender therapy.

The dissent states that we do not challenge the conduct alleged in Coleman's sexual assault indictment. As the state has never established the truth of those allegations in a criminal trial or other proceeding, we have no basis for assessing their veracity, and to assume them to be either true or false would be improper.

The dissent maintains that it was "pure conjecture" for the panel to rely on the website of the Texas Council on Sex Offender Treatment to determine that the state's sex offender treatment is behavior modifying. Coleman cited to and relied on the same website in his brief and no contradiction was made by the state to that or to Coleman's characterization of sex offender therapy, either in its appellate brief or at oral argument. The attempt to object for the first time on petition for rehearing comes late. See Arenson v. S. Univ. Law Ctr., 53 F.3d 80, 81 (5th Cir. 1995). Furthermore, we fail to see any merit to an objection to the panel taking judicial notice of the state agency's own website. As the panel explained, the Texas Council is charged by statute with developing strategies and standards for the treatment of sex offenders in Texas. Tex. Occ. Code § 110.151 (Vernon 2004). There is no support in this record for the assertion in the state's petition for rehearing that the treatment on which Coleman's release was conditioned is anything other than the intrusive and behavior-modifying treatment outlined on the website.

The panel relied on the invasive and behavior-modifying nature of sex offender therapy. We said 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." Coleman v. Dretke, 395 F.3d 216, 223 (5th Cir. 2004). The dissent erroneously states that we have required pre-deprivation process whether or not invasive physical treatment is contemplated.

The dissent erroneously treats Coleman's case as a mere challenge to the nature of his confinement rather than a claim for release, as if mandatory supervision is a level of control different from parole. Under Texas law, mandatory supervision is statutorily mandated when the inmate has accrued a certain level of good conduct time, and the parole board has less discretion in denying an inmate's release on mandatory supervision than on parole. Tex. Gov't Code §§ 508.001(5), 508.001(6), 508.141, 508.147(a) (Vernon 2004); Ex parte Retzlaff, 135 S.W.3d 45, 48-49 (Tex. Crim. App. 2004). The condition that Coleman reside in a halfway house until employed is also immaterial. The condition, like all conditions of release, is a constraint on the freedom of the releasee, but it does not alter the "quantum change in the level of custody" that occurs when an individual is allowed to live outside prison walls, whether on parole or mandatory supervision. See Wilkinson v. Dotson, __ U.S._ _, 125 S.Ct. 1242, 1250 (2005) (Scalia, J., concurring).

II. The Law

The dissent argues that the panel mis-applied and extended Vitek v. Jones, 445 U.S. 480 (1980). And it argues that the panel failed to adhere to the deferential standard of review applicable to state habeas proceedings under the Anti-terrorism and Effective Death Penalty Act (AEDPA).

According to the dissent, Coleman failed to show that his situation is in line with the material facts of Vitek by establishing that the conditions placed on his release on mandatory supervision caused stigma and involved intrusive behavior-modification treatment. We have answered that contention above. The new argument that registration has been dropped from the case does not change matters. Vitek does not require publication to establish stigma. In fact, the plaintiff in Vitek had not been required to register the fact of his classification as mentally ill, and the Court nowhere indicated that his treatment providers would not keep his records confidential. See Vitek, 445 U.S. at 483-86 & 492. The Court nevertheless found it "indisputable" that commitment to the mental hospital alone could cause "adverse social consequences to the individual" and stated that "[w]hether we label this phenomena 'stigma' or choose to call it something else[,] we recognize that it can occur and that it can have a very significant impact on the individual." Id. at 492 (internal quotation marks omitted). Whether or not Coleman must now list his name on an official roster, by requiring him to attend sex offender therapy, the state labeled him a sex offender – a label which strongly implies that Coleman has been convicted of a sex offense and which can undoubtedly cause "adverse social consequences." See id. ; Neal v. Shimoda, 131 F.3d 818, 829 (9th Cir. 1997) ("We can hardly conceive of a state's action bearing more 'stigmatizing consequences' than the labeling of a prison inmate as a sex offender."); Vander Zee v. Reno, 73 F.3d 1365, 1369 (5th Cir. 1996) (stating that a statement causes stigma if it is both false and implies that the plaintiff is guilty of serious wrongdoing). The stigma aspect of the case is thus not mooted by the state's decision to remove Coleman from its sex offender registry. The facts of the present case are in line with Vitek's stigma element.

As explained above, the state's imposition of sex offender status and therapy as conditions of Coleman's release fits squarely within the material facts of Vitek, and the panel's decision was thus a proper exercise of deference under AEDPA. The dissent claims that application of Vitek to sex offender conditions cannot be clearly established under AEDPA because courts have found that the law in this area is not clearly established for purposes of qualified immunity. To support this argument, the dissent states that the AEDPA standard and the qualified immunity standard are logically similar. The dissent's reliance on qualified immunity analysis is misplaced. Habeas law and the law of qualified immunity are "doctrinally distinct." Williams v. Taylor, 529 U.S. 362, 380 n.12 (2000) (Stevens, J.). For qualified immunity purposes, law is clearly established if it would be clear to a reasonable official that her conduct was unlawful in the situation she confronted. Saucier v. Katz, 533 U.S. 194, 202 (2001). For AEDPA purposes, clearly established federal law is "whatever would qualify as an old rule under our Teague jurisprudence," as long as the old rule was decided by the Court. Williams, 529 U.S. at 412. Under Teague, a new rule is one that "breaks new ground or imposes a new obligation on the States or the Federal Government" or that is "not dictated by precedent existing at the time the defendant's conviction became final." Teague v. Lane, 489 U.S. 288, 301 (1989) (emphasis in original). The two standards thus require distinct analyses and cannot be conflated merely because they employ common terminology. Williams, 529 U.S. at 380 n. 12 (Stevens, J.) ("We are not persuaded by the argument that because Congress used the words 'clearly established law' and not 'new rule,' it meant in [28 U.S.C. § 2254(d)(1)] to codify an aspect of the doctrine of executive qualified immunity rather than Teague 's retroactivity bar. . . . Congress had Teague – and not any unrelated area of our jurisprudence – specifically in mind in amending the habeas statute. . . . We will not assume that in a single subsection of an amendment entirely devoted to the law of habeas corpus, Congress made the anomalous choice of reaching into the doctrinally distinct law of qualified immunity[.]") (emphasis added). Vitek imposed an obligation on the states to provide process before imposing stigmatizing classifications and concomitant behavior modification therapy on individuals in their custody. The panel opinion does nothing more.

The dissent implies that the Supreme Court's decision in Connecticut Department of Public Safety v. Doe, 538 U.S. 1 (2003), illustrates the Court's unwillingness to afford due process protection to "sex offenders" – a term the dissent appears to define as anyone who has been charged with a sex offense, even if never convicted on that charge. As the panel opinion noted, Doe is distinguishable. Coleman, 395 F.3d at 223 n.30. First, the Doe plaintiff challenged sex offender registration alone the case did not involve behavior modification therapy, and thus fell...

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