Cruz v. Texas Parole Division , 87 F. App'x 346 ( 2004 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS January 30, 2004
FOR THE FIFTH CIRCUIT
Charles R. Fulbruge III
Clerk
No. 03-50745
Summary Calendar
DIONICIO A. CRUZ,
Petitioner-Appellant,
versus
TEXAS PAROLE DIVISION,
Respondent-Appellee.
--------------------
Appeal from the United States District Court
for the Western District of Texas
USDC No. SA-02-CV-310
--------------------
Before JOLLY, WIENER, and DENNIS, Circuit Judges.
PER CURIAM:*
Dionicio A. Cruz, a Texas parolee, appeals the district
court’s denial of his 28 U.S.C. § 2254 petition, wherein he
challenged the retroactive application of the State of Texas’ Super
Intensive Supervision Program (“SISP”) as a condition of his
parole. The district court granted Cruz a certificate of
appealability on the issue whether SISP violates the Ex Post Facto
Clause by subjecting Cruz to greater punishment on parole.
Cruz argues that: (1) he is entitled to the benefit of 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this opinion should not be published and is not precedent except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.
parole laws in effect at the time of his conviction and subsequent
parole violation and (2) the retroactive application of SISP
constitutes a violation of the Ex Post Facto Clause because the
SISP provisions are more onerous than the former parole laws. He
has also filed a motion for injunctive relief in this court.
Texas prisoners have no constitutional expectancy of parole.
See Madison v. Parker, 104 F.3d 765, 768 (5th Cir. 1997). Thus,
to the extent Cruz argues that he is entitled to the benefit of the
parole laws that were in effect at the time of his state conviction
and subsequent parole violation, he has not stated a violation of
a constitutional right. See Orellana v. Kyle, 65 F.3d 29, 32 (5th
Cir. 1995).
To the extent that Cruz argues that SISP violates the Ex Post
Facto Clause by increasing the punishment for his offense, his
argument fails. The only SISP condition that Cruz specifically
challenges on appeal is the State’s use of electronic monitoring.
In Vineyard v. Keesee, No. 95-10132 (5th Cir. Oct. 18, 1995)
(unpublished), slip. op. at 3-5, this court held that changes in
Texas parole laws imposing electronic monitoring, urinalysis,
driving restrictions, and curfew did not constitute an ex post
facto violation. In light of Vineyard, Cruz has not stated a
violation of a constitutional right. See 5TH CIR. R. 47.5.3.
Because Cruz has failed to establish a violation of his
constitutional rights, he is not entitled to habeas relief. See
Orellana, 65 F.3d at 31.
2
In his request for injunctive relief, Cruz seeks to enjoin the
State from impeding his access to the law library. In light of the
disposition of this case, Cruz cannot make the showing required for
obtaining an injunction because he cannot demonstrate a substantial
likelihood of success on the merits. See Lindsay v. City of San
Antonio, 821 F.2d 1103, 1107 (5th Cir. 1987).
AFFIRMED; MOTION DENIED.
3