Breshears v. Garrett , 143 F. App'x 570 ( 2005 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT July 20, 2005
Charles R. Fulbruge III
Clerk
No. 05-50064
Summary Calendar
JASON M. BRESHEARS,
Plaintiff-Appellant,
versus
GERALD GARRETT; PADDY BURWELL; ALVIN SHAW;
RISSIE OWENS; JUANITA GONZALEZ,
Defendants-Appellees.
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Appeals from the United States District Court
for the Western District of Texas
USDC No. 5:04-CV-356
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Before SMITH, GARZA and PRADO, Circuit Judges.
PER CURIAM:*
Jason M. Breshears, a Texas prisoner (# 635072) serving a
30-year sentence for aggravated sexual assault with a weapon,
appeals the dismissal of his 42 U.S.C. § 1983 civil rights suit
as frivolous and for failure to state a claim, pursuant to 28
U.S.C. § 1915A(b), and the granting of two defendants’ motion for
summary judgment, FED. R. CIV. P. 56. Breshears asserted in his
complaint that the defendants, members of the Texas Board of
Pardons and Paroles (“Board”), had violated his rights under the
*
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this opinion should not be published and is not precedent except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.
No. 05-50064
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Due Process, Ex Post Facto, and Equal Protection Clauses by
retroactively applying to him and other sex offenders a September
1, 1995 change in state parole procedure, which required that sex
offenders receive 12 votes from a specially-convened 18-member
Board panel in order to be granted release on parole. He alleged
that, prior to that date, such offenders had needed to receive
only two favorable votes from a standard three-member panel in
order to be granted parole. Breshears has admittedly filed a 28
U.S.C. § 2254 habeas petition raising these identical claims, his
appeal of the denial of which remains pending before this court.
Without addressing any evidentiary materials, the district
court concluded that Breshears’s constitutional claims were
frivolous and that he had failed to state a claim, because Texas
prisoners had “no constitutionally protected right to parole or a
parole hearing.” Insofar as Breshears was raising a due-process
claim, this conclusion was correct. See Orellana v. Kyle, 65
F.3d 29, 32 (5th Cir. 1995). Breshears also failed to state a
cognizable equal-protection claim because he had not shown that
sex offenders were a suspect class or that they had been denied a
fundamental right, see Rublee v. Fleming, 160 F.3d 213, 217 (5th
Cir. 1998), and subjecting such offenders to different parole
procedures is reasonably related to a legitimate penological
interest. See, e.g., Finley v. Staton, 542 F.2d 250, 250 (5th
Cir. 1976). Accordingly, we AFFIRM the district court’s
dismissal of Breshears’s due-process and equal-protection claims
No. 05-50064
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as frivolous and for failure to state a claim. See Berry v.
Brady, 192 F.3d 504, 507 (5th Cir. 1999).
The district court’s determination that Breshears’s ex post
facto claim was frivolous, on the ground that Texas prisoners had
no “constitutionally protected” right to parole, was erroneous.
The viability of an ex post facto claim is not dependent on the
existence of a “vested” constitutional right. See Orellana, 65
F.3d at 32 (citing Weaver v. Graham, 450 U.S. 24, 29-30 (1981)).
Moreover, Breshears’s habeas appeal is being held pending a
decision in other cases, and, in one of those cases, a
certificate of appealability (“COA”) has been granted with
respect to a nearly identical ex post facto claim. Even if it
assumed arguendo that Breshears’s ex post facto claim is
nonfrivolous, however, we conclude that it is barred by the
doctrine of Heck v. Humphrey, 512 U.S. 477 (1994), because the
granting of relief would necessarily imply the invalidity of the
parole decisions Breshears challenges in this civil rights
action. See Jackson v. Vannoy, 49 F.3d 175, 177 (5th Cir. 1995).
Accordingly, we AFFIRM the dismissal but without prejudice of
Breshears’s ex post facto claim on the alternative ground that
such claim has not yet accrued under Heck. See Castellano v.
Fragozo, 352 F.3d 939, 959-60 (5th Cir. 2003), cert. denied, 125
S. Ct. 31 (2004); Zolicoffer v. United States Dep’t of Justice,
315 F.3d 538, 541 (5th Cir. 2003).
AFFIRMED.