Lopez v. Quarterman , 225 F. App'x 243 ( 2007 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT April 17, 2007
Charles R. Fulbruge III
Clerk
No. 06-20462
Summary Calendar
ALEJANDRO GARCIA LOPEZ,
Petitioner-Appellant,
versus
NATHANIAL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:06-CV-1345
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Before DAVIS, BARKSDALE, and BENAVIDES, Circuit Judges.
PER CURIAM:*
Alejandro Garcia Lopez, Texas prisoner # 1195889, seeks a
certificate of appealability (COA) to appeal the district court’s
dismissal of his 28 U.S.C. § 2254 habeas petition for failure to
state a claim and as frivolous. The district court construed
Lopez’s petition as raising only a claim relating to the denial
of parole and held that Lopez had no liberty interest in being
released on parole. Lopez was convicted following a guilty plea
*
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this opinion should not be published and is not precedent except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. 06-20462
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to driving while intoxicated and was sentenced to a term of
imprisonment of fifteen years.
A COA may be issued only if the prisoner has made a
“substantial showing of the denial of a constitutional right.”
28 U.S.C. § 2253(c)(2). Such a showing requires that a
petitioner “demonstrate that reasonable jurists would find the
district court’s assessment of the constitutional claims
debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484
(2000).
Lopez argues that the district court erred in summarily
dismissing his § 2254 petition because he had alleged the denial
of a protected liberty interest. He contends that he was
deprived of a liberty interest when he was denied "supervised
release" once he was "declared eligible for parole." He states
that he was twice “declared eligible for mandatory supervision”
and that both times he was denied “parole.” He argues that the
denial resulted in a violation of his right to equal protection
and due process.
Lopez’s habeas petition did not raise a claim that he was
denied equal protection. A petitioner cannot pursue claims
raised for the first time in a COA motion. Whitehead v. Johnson,
157 F.3d 384, 387-88 (5th Cir. 1998).
It is unclear from Lopez’s § 2254 petition whether he was
alleging that he was entitled to release on mandatory supervision
or on parole as he identified both kinds of release in his
No. 06-20462
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petition. Lopez has no liberty interest in being released on
parole, but he may have a liberty interest in being released on
mandatory supervision under current Texas law. See TEX. GOVT.
CODE §§ 508.147, 508.149; Madison v. Parker, 104 F.3d 765, 768
(5th Cir. 1997); Malchi v. Thaler, 211 F.3d 953, 957-58 (5th Cir.
2000); Ex parte Geiken, 28 S.W.3d 553, 558 (Tex. Crim. App. 2000)
(en banc). Reasonable jurists would therefore find debatable the
correctness of the district court’s summary dismissal of the
petition as frivolous and for failure to state a claim absent any
clarification of the nature of Lopez’s complaint. Therefore, the
motion for COA is granted, the judgment is vacated, and the case
is remanded to the district court for further proceedings.
COA GRANTED; JUDGMENT VACATED AND CASE REMANDED.