Galbraith v. Hooper ( 2023 )

Case: 22-30159 Document: 00516940626 Page: 1 Date Filed: 10/23/2023
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
____________ FILED
October 23, 2023
No. 22-30159
Lyle W. Cayce
____________
Clerk
Samuel Galbraith,
Petitioner—Appellee,
versus
Tim Hooper, Warden, Louisiana State Penitentiary,
Respondent—Appellant.
______________________________
Appeal from the United States District Court
for the Middle District of Louisiana
USDC No. 3:19-CV-181
______________________________
Before Stewart, Dennis, and Southwick, Circuit Judges.
Leslie H. Southwick, Circuit Judge:
Samuel Galbraith, a Louisiana prisoner, sued the Louisiana Board of
Pardons and Parole (“Parole Board”), seeking to have his parole reinstated
on the grounds that its rescission just prior to its effective date violated his
due process rights. The district court agreed with Galbraith and ordered his
release on parole within 30 days, subject to the original conditions of his
parole. On appeal, the Parole Board’s arguments include that there is no
constitutionally protected liberty interest in parole. Based on Louisiana’s
parole statutes, we hold that, on the facts of this case, a liberty interest did
arise. We AFFIRM.
Case: 22-30159 Document: 00516940626 Page: 2 Date Filed: 10/23/2023
No. 22-30159
FACTUAL AND PROCEDURAL BACKGROUND
In February 2000, Samuel K. Galbraith pled guilty to the
manslaughter and attempted aggravated rape of Karen Hill in November
1988. He was sentenced to 71 years at hard labor. In November 2000, James
Hill, who is the victim’s surviving husband, completed a “Louisiana
Department of Public Safety and Corrections Victim/Witness Notification
Request Form.” The form required the Parole Board to notify the named
person when a parole hearing was granted for a specified inmate. The record
does not contain a similar form from anyone else that requested notice
regarding Galbraith’s potential parole.
In the spring of 2016, 1 Galbraith filed an Application for Parole. His
first possible parole eligibility date was April 23, 2017. The Parole Board set
Galbraith’s hearing for October 13, 2016, and sent notification letters on July
7, 2016, to Hill and Jessie McWilliams, Karen Hill’s mother, advising them
of their right to appear and present testimony at the parole hearing.
McWilliams’s letter was erroneously addressed to a post office box in
Albany, New York, instead of to the same-numbered post office box in
Albany, Illinois. On September 14, 2016, Galbraith’s attorney requested a
continuance of the October hearing until November 3, 2016, which was
granted. The Parole Board sent notification letters to Hill and McWilliams
on September 28, 2016, this time to their correct addresses, reflecting the
new November hearing date. At this time, the Louisiana Administrative
Code required notification 30 days prior to the parole hearing to be sent to
“[t]he victim, spouse, or next of kin of a deceased victim.” LA. ADMIN.
_____________________
1
Galbraith’s Application for Parole is undated; however, other documents in the
application reflect dates of early-to-mid 2016.
2
Case: 22-30159 Document: 00516940626 Page: 3 Date Filed: 10/23/2023
No. 22-30159
CODE, tit. 22, Pt XI, § 510(B) (eff. Aug. 2013 to Mar. 2018). 2 Thus, the
Parole Board was required to give notice only to Hill as the surviving
husband. The Parole Board did so.
A pre-parole investigation report was prepared. The report contained
statements from Hill, McWilliams, the Vernon Parish District Attorney’s
Office, the Vernon Parish Sheriff’s Office, and the Vernon Parish sentencing
judge. They all opposed parole. At Galbraith’s parole hearing, a three-
member panel of the Parole Board heard testimony or statements from those
opposed to his early release. That Board also heard from Galbraith’s family
members, who supported his parole. Galbraith was represented by counsel
at the hearing. The Parole Board panel unanimously voted to grant parole to
Galbraith with a scheduled release date of April 23, 2017, and with a list of
specific conditions during his parole term. The Certificate of Parole showed
that Galbraith would reside in Aransas Pass, Texas, and would be subject to
the authority of a parole office in Corpus Christi, Texas.
Neither Hill nor McWilliams attended the hearing, but each provided
a written statement or testimony. Both were contacted directly by someone
from the Department of Corrections after the hearing and were notified of
the decision.
After parole was granted, Vernon Parish District Attorney Asa
Skinner filed a request for reconsideration of the parole board’s decision. He
_____________________
2
The statute was amended in March 2018 to require 90-days’ notice and to require
notice to any person who has filed a victim notice and registration form. See LA. ADMIN.
CODE, tit. 22, pt. XI, § 510(B) (eff. Mar. 2018 to Dec. 2018). Victim notification errors
were not a permissible basis, at least explicitly, for rescission of parole until the statute was
amended in August 2019. Compare LA. ADMIN. CODE, tit. 22, pt. XI, § 504(K) (eff. Jan.
2015 to Aug. 2019), with LA. ADMIN. CODE, tit. 22, pt. XI, § 504(K) (eff. Aug. 2019 to Jan.
2020).
3
Case: 22-30159 Document: 00516940626 Page: 4 Date Filed: 10/23/2023
No. 22-30159
sent request letters on November 15, 2016, November 30, 2016, 3 and January
9, 2017. In February 2017, the Parole Board denied Skinner’s request for
reconsideration, explaining that “[t]he panel voted unanimously to grant
parole . . . after serious and thorough consideration” and “[t]he board’s
policy provides for a reconsideration review only in [limited]
circumstances,” none of which were applicable in Galbraith’s case. Skinner
and McWilliams aired their displeasure to the press, leading to negative
reports that appeared in the news regarding Galbraith’s imminent parole.
In early April 2017, the Parole Board and the Department of
Corrections made final preparations for Galbraith’s release. On April 10,
2017, Parole Board member Mary Fuentes sent an email to the Deputy
Executive Counsel to Louisiana Governor John Bel Edwards. She referred
to a news story regarding Galbraith’s release that would air on April 13. Her
concern was that the story could impact criminal justice legislation that was
desired by the governor. Two days later, a single Parole Board member,
Sheryl Ranatza, added electronic monitoring as a condition of Galbraith’s
parole. On April 20, 2017, the Parole Board received notice from Texas that
the new condition of parole was accepted, and Ranatza signed and issued a
Certificate of Parole with a release date of April 23, 2017.
On April 21, 2017, an email exchange occurred between Special
Counsel of the Louisiana Governor’s Legislative Staff and a lobbyist with
Top Drawer Strategies, LLC. Both expressed concern about the negative
media reports regarding Galbraith’s release and potential impact on the
success of the pending criminal justice reform legislation. The news report
_____________________
3
In one of the November 30 letters, Skinner attached a report by retired chief
detective, Martin Hilton, who relayed his opinion that Galbraith may be responsible for two
cold-case murders in Vernon Parish. Galbraith, however, was never charged with either of
these murders, and there is no evidence in the record connecting him to those two victims.
4
Case: 22-30159 Document: 00516940626 Page: 5 Date Filed: 10/23/2023
No. 22-30159
referenced in that email exchange included details about interviews with
McWilliams, who stated her victim notification letter was sent to the wrong
mailing address, and with Skinner, who claimed Galbraith was responsible
for two other cold-case murders in Vernon Parish.
On April 21, the same day as this email exchange, Galbraith’s parole
hearing docket record stated: “Rescind Pending Per Mary F,” i.e., board
member Mary Fuentes. That day, a single Parole Board member, Jim Wise,
filled in a “Parole Board Action Sheet” that rescinded Galbraith’s parole
based on this reason: “Other [–] There may have been tech[n]ical irregularity
to victim notice.”
Galbraith was not released. In a letter dated May 1, the Parole Board
officially notified him of the rescission, awkwardly repeating the phrasing of
the Parole Board Action Sheet:
This correspondence is to advise you that the Parole Board has
voted to rescind the parole granted at your original parole
hearing.
This action was taken due to the following:
We have been advised that Other.
There may have been technical irregularities notifying the
victim’s family.
You will be scheduled for another hearing on 08/03/2017.
There is no evidence that the Parole Board took any action to rescind
parole beyond the single board member’s signature on the rescission form.
The Parole Board later issued a press release announcing the decision to
rescind. It explained that, even though McWilliams received notice of the
November hearing and provided a statement for its consideration, the Board
5
Case: 22-30159 Document: 00516940626 Page: 6 Date Filed: 10/23/2023
No. 22-30159
was rescheduling the parole hearing “because of the apparent procedural
error which occurred with the initial victim notification.” 4
In May 2017, Galbraith filed an administrative grievance, which was
rejected on the ground that the Parole Board’s decision was discretionary and
could not be challenged. In June 2017, Galbraith’s counsel sent a letter (1)
contesting the decision to rescind for failure to adhere to Parole Board policy,
(2) contesting the factual basis of the alleged technicality that occurred with
the victim notice, and (3) advising the Parole Board that neither of the two
permissible reasons for rescission of parole applied in his case. In July 2017,
Galbraith, through counsel, withdrew from parole consideration for the
reasons stated in his attorney’s June letter.
On July 26, 2017, counsel for Galbraith filed a 42 U.S.C. § 1983complaint in the Middle District of Louisiana challenging the Parole Board’s
rescission of his parole. He sought reinstatement of his parole and immediate
release from prison. A year and a half later, the Parole Board filed a motion
for summary judgment in which it argued Galbraith’s exclusive remedy to
seek release from custody was through a writ of habeas corpus.
On March 27, 2019, counsel for Galbraith filed a 28 U.S.C. § 2241application, naming the warden of the prison as the defendant. We will refer
to the defendant as the State since the warden was sued in his official
capacity. Stating that it was due to the common legal issues, the district court
stayed and administratively closed the Section 1983 proceedings pending
resolution of the Section 2241 application. In its answer to Galbraith’s
Section 2241 application, the State argued Galbraith failed to exhaust his
_____________________
4
As we have already explained, the Parole Board was required to provide 30 days’
notice of the hearing, and timely notice was given for the November hearing. There is no
suggestion or record that McWilliams requested notification, and she was not required to
be notified under the statute in effect at the time. See supra n.2.
6
Case: 22-30159 Document: 00516940626 Page: 7 Date Filed: 10/23/2023
No. 22-30159
available state court remedies, his application was time-barred, and his claim
lacked merit because the Parole Board’s rescission did not infringe any
constitutionally protected liberty interest.
In a March 9, 2022, Report and Recommendation, the magistrate
judge determined:
(1) Galbraith was not required to exhaust his claims because Louisiana’s
statutory scheme did not permit him to challenge the Parole Board’s
rescission under these circumstances;
(2) It was not clear if Galbraith’s Section 2241 petition was subject to a
limitations period;
(3) Even if a one-year limitations period was applicable, Galbraith filed a
Section 1983 complaint within that time period seeking habeas corpus
relief;
(4) Although Galbraith did not have a liberty interest in the granting of
parole, there was a state-created liberty interest at issue here because
the Parole Board regulations in effect at the time permitted rescission
of a parole grant only in two circumstances, neither of which was
applicable to Galbraith’s situation;
(5) Galbraith was therefore entitled to notice and a meaningful
opportunity to be heard prior to rescission of his parole grant, but he
received neither; and
(6) A remand to the Parole Board to conduct a rescission hearing would
be futile because neither permissible basis for rescission was
applicable.
The magistrate judge recommended granting Galbraith’s habeas
application and ordering his release on parole within 30 days, subject to the
original conditions of his parole as granted on November 3, 2016. The State
filed objections. On March 28, 2022, the district court granted Galbraith’s
habeas corpus application “for the reasons set forth in the Magistrate Judge’s
7
Case: 22-30159 Document: 00516940626 Page: 8 Date Filed: 10/23/2023
No. 22-30159
Report.” The State filed a timely notice of appeal. We granted an unopposed
motion to stay the district court’s judgment and release order, pending
appeal.
On appeal, the State argues the district court erred in its holding that
(1) Galbraith was not required to exhaust state remedies, (2) Galbraith’s
application was not time-barred, and (3) Galbraith had a protected liberty
interest in his parole grant prior to release.
DISCUSSION
“In a habeas corpus appeal, we review the district court’s findings of
fact for clear error and its conclusions of law de novo.” Reeder v. Vannoy, 978
F.3d 272, 276 (5th Cir. 2020) (citation omitted).
We first review the district court’s legal conclusion about the often-
difficult issue of the proper statutory vehicle for a prisoner’s claim. Different
procedural hurdles apply depending on that decision. We then turn to the
State’s three arguments about reversible error in the district court’s rulings.
I. Habeas corpus application or Civil Rights suit?
Section 2241 is a general statute permitting district courts to grant
writs of habeas corpus to individuals who are in custody under the authority of
either federal law or a state court judgment, while Section 2254 limits district
courts’ authority when considering habeas relief for state prisoners. See
Hartfield v. Osborne, 808 F.3d 1066, 1071–73 (5th Cir. 2015). When state
prisoners contest their custody and seek to obtain release, the appropriate
procedure is to file a Section 2254 application. Id. Significant limitations
apply to the right to relief under that section. See 28 U.S.C. § 2254(a)–(i). If
the prisoner instead is contesting the “execution” of his sentence, Section
2241 is the relevant statute. See Tolliver v. Dobre, 211 F.3d 876, 877 (5th Cir.
2000). Another expression of Section 2241’s applicability is that it is for
8
Case: 22-30159 Document: 00516940626 Page: 9 Date Filed: 10/23/2023
No. 22-30159
challenges to “the manner in which a sentence is carried out or the prison
authorities’ determination of its duration.” Pack v. Yusuff, 218 F.3d 448, 451
(5th Cir. 2000).
“[Section] 2254 is not an independent avenue through which
petitioners may pursue habeas relief.” Hartfield, 808 F.3d at 1073. “Instead,
all habeas petitions . . . are brought under [Section] 2241, and [Section]
2254 places additional limits on a federal court’s ability to grant relief if the
petitioner is being held in custody ‘pursuant to the judgment of a State
court.’” Topletz v. Skinner, 7 F.4th 284, 294 (5th Cir. 2021) (quoting §
2254(a)). Among those limitations is that the application “by a person in
custody pursuant to the judgment of a State court” must be filed within one
year of different events; relevant here is “the date on which the factual
predicate of the claim” was or could have been discovered. 28 U.S.C.
§ 2244(d)(1)(D).
Galbraith is in custody due to a state court judgment and seeks his
release by requesting the court to reinstate his parole grant. He argues the
one-year limitation period is inapplicable. That is because his rights allegedly
were violated when the Parole Board did not hold a hearing prior to the
rescission of his parole grant, and that means he is challenging “the manner
in which [his] sentence is carried out or the prison authorities’ determination
of its duration.” Pack, 218 F.3d at 451.
Three possible vehicles for Galbraith’s claim have been proposed: a
civil rights suit under Section 1983, or a habeas application under either
Section 2241 or Section 2254.
We start with Section 1983. A helpful precedent concerned a Section
1983 suit in which two state prisoners claimed that state authorities had
violated the Ex Post Facto and Due Process Clauses of the Constitution. See
Wilkinson v. Dotson, 544 U.S. 74, 76–77 (2005). The violation allegedly arose
9
Case: 22-30159 Document: 00516940626 Page: 10 Date Filed: 10/23/2023
No. 22-30159
when officials applied new, harsher guidelines for determining parole to
prisoners whose crimes had been committed when less-demanding
guidelines were used. Id. The plaintiff prisoners had been considered for
parole under the harsher guidelines, were denied parole, and then deemed
ineligible to seek parole again for five years. Id. The plaintiffs wanted
immediate parole hearings under the prior guidelines. Id. at 77. The Court
held that the constitutional claims were properly brought using Section 1983.
Id. at 76. The Court rejected the argument that “the prisoners’ lawsuits, in
effect, collaterally attack the duration of their confinement; hence, such a
claim may only be brought through a habeas corpus action.” Id. at 78(emphasis in original). “A consideration of this Court’s case law makes clear
that the connection between the constitutionality of the prisoners’ parole
proceedings and release from confinement is too tenuous here to achieve
Ohio’s legal door-closing objective.” Id.Galbraith, though, is not seeking a new hearing. He insists the parole
he earlier received was improperly rescinded and should again be reinstated.
He brings a direct and immediate claim about the duration of his
confinement, without the contingency that existed in Dotson that a new
hearing might not grant parole. Habeas is the proper procedure here.
We now examine the habeas application Galbraith eventually did file
under Section 2241. The State argues that the one-year statute of limitations
that is set out in 28 U.S.C. § 2244(d) applies. The district court disagreed,
holding that Galbraith’s challenge to the rescission of his parole was properly
brought under Section 2241 (which has no statute of limitations) because it
raised issues of “the manner in which a sentence [was] carried out,” quoting
Pack, 218 F.3d 448. Parole was not involved in Pack, though, so it does not
directly answer whether parole fits within the category of “carrying out” a
sentence.
10
Case: 22-30159 Document: 00516940626 Page: 11 Date Filed: 10/23/2023
No. 22-30159
So, how do we categorize this claim? Does Section 2254 apply to a
challenge to the validity or length of the original sentence but not to disputes
about whether the sentence has ended or been shortened by subsequent
events? In other words, is Section 2254 inapplicable to challenges like
Galbraith’s to the execution of a sentence? A treatise on federal habeas
procedures supports our characterization of Galbraith’s claim as one that is
about the “execution” of his sentence. See Tolliver, 211 F.3d at 877. The
treatise concluded that challenges to the denial of federal parole are properly
brought under Section 2241. BRIAN R. MEANS, FED. HABEAS MANUAL §
1:29, at 47 (2023) (quoting Coady v. Vaughn, 251 F.3d 480, 485 (3d Cir.
2001)). That treatise accepts that denial of parole is an act relating to the
execution of the sentence.
The treatise continues:
All courts agree that [Section] 2241 is an appropriate vehicle to
challenge government action that inevitably affects the
duration of the petitioner’s custody, such as challenges to
administrative orders revoking good-time credits, computation
of a prisoner’s sentence by prison officials, a right to release on
parole, or other equivalent sentence-shortening devices.
Id. at 48.
While Galbraith is a state prisoner and the above treatise concerns
federal prisoners, our circuit has extended the same reasoning that challenges
to parole revocations sound under Section 2241 to state prisoners. Generally
unpublished opinions offer no precedential weight, but, in this circuit,
unpublished opinions issued prior to January 1, 1996, are precedential. 5th
Cir. R. 47.5.3. The district court cited one such opinion. See Richie v. Scott,
70 F.3d 1269 (5th Cir. 1995) (unpublished but precedential under Fifth Cir.
Local R. 47.5.3). In Richie, we rejected the district court’s determination that
the prisoner had to bring his claim under Section 2254, finding that a
11
Case: 22-30159 Document: 00516940626 Page: 12 Date Filed: 10/23/2023
No. 22-30159
challenge to the revocation of parole should be brought under Section 2241.
Id. at *1 (citing Rome v. Kyle, 42 F.3d 640 (5th Cir. 1994) (unpublished);
Johnson v. Scott, 56 F.3d 1385 (5th Cir. 1995) (unpublished)). If the party is
not contesting the legality or validity of the sentence, Section 2254 is
inapplicable. Id.In another case, the Johnson panel rejected the state’s invitation to
allow parole revocation challenges under either Section 2241 or 2254.
Johnson, 56 F.3d at *1. Rather, it acknowledged that “[o]n numerous
occasion . . . this court has construed a habeas petition challenging the
revocation of parole as one arising exclusively under” Section 2241, and it
ruled accordingly. Id. (citations omitted). Another panel found that the
district court “improperly characterized [the defendant’s] petition as arising
under Section 2254” when it was not contesting the legality or validity of the
sentence. Rome, 42 F.3d at *2. It concluded that a petition must be construed
under Section 2241 when it “is contesting the manner in which [the]
sentence is being executed.” Id.Based on this precedent, we conclude that such a claim as Galbraith’s
should indeed be defined as a dispute about how a “sentence is carried out.”
See Pack, 218 F.3d at 451. Galbraith’s challenge to the revocation of his
parole was properly brought under Section 2241. Richie, 70 F.3d at *1.
A prisoner must exhaust state remedies prior to seeking relief under
Section 2241. Id. Thus, we begin with the exhaustion requirement, discuss
timeliness briefly, then conclude with examining the merits of the claim.
II. Exhaustion of state remedies
“Whether a federal habeas petitioner has exhausted state remedies is
a question of law reviewed de novo.” Anderson v. Johnson, 338 F.3d 382, 386
(5th Cir. 2003). The “exhaustion requirement is not jurisdictional, but
reflects a policy of federal-state comity . . . designed to give the State an initial
12
Case: 22-30159 Document: 00516940626 Page: 13 Date Filed: 10/23/2023
No. 22-30159
opportunity to pass upon and correct alleged violations of its prisoners’
federal rights.” Id. (alteration in original) (quotation marks and citations
omitted).
On appeal, the State repeats its arguments that it made to the district
court that Galbraith could have raised his challenge in a state habeas corpus
application and has failed to exhaust his state court remedies. It relies heavily
on Sinclair v. Stalder, 867 So. 2d 743 (La. Ct. App. 2003) and Sneed v. Hooper,
328 So. 3d 1164 (La. 2021). The district court rejected the argument that
Galbraith could have filed a state habeas application. That is because
Louisiana’s statutory scheme does not permit a challenge to the Parole
Board’s rescission on any ground, except for the denial of a revocation
hearing. Due to the perceived lack of any available state corrective process,
the district court held that Galbraith was not required to exhaust his habeas
application and met the exception in Section 2254(b)(1)(B)(i). First, we
examine those conclusions.
Federal habeas relief for state prisoners is limited to those applicants
who have “exhausted the remedies available in the courts of the State,”
unless “there is an absence of available State corrective process” or
“circumstances exist that render such process ineffective to protect the
rights of the applicant.” § 2254(b)(1). An applicant has not exhausted his
available remedies “if he has the right under the law of the State to raise, by
any available procedure, the question presented.” § 2254(c).
The district court relied on the fact that “Louisiana’s parole statutes
allow for appeal of parole board actions in only one circumstance.” The
pertinent language in the statute is this:
Parole is an administrative device for the rehabilitation of
prisoners under supervised freedom from actual restraint, and
the granting, conditions, or revocation of parole rest in the
13
Case: 22-30159 Document: 00516940626 Page: 14 Date Filed: 10/23/2023
No. 22-30159
discretion of the committee on parole. No prisoner or parolee
shall have a right of appeal from a decision of the committee
regarding release or deferment of release on parole, the
imposition or modification of authorized conditions of parole,
the termination or restoration of parole supervision or
discharge from parole before the end of the parole period, or
the revocation or reconsideration of revocation of parole, except
for the denial of a revocation hearing under R.S. 15:574.9.
La. R.S. § 15:574.11(A) (emphases added).
Another relevant statute provides that
The committee may order revocation of parole upon a
determination that:
(1) The parolee has failed, without a satisfactory excuse, to
comply with a condition of his parole; and
(2) The violation of condition involves the commission of
another felony, or misconduct including a substantial risk that
the parolee will commit another felony, or misconduct
indicating that the parolee is unwilling to comply with proper
conditions of parole.
La. R.S. § 15:574.9(B).
Based on the Louisiana statutory language, a prisoner cannot contest
a decision by the Parole Board unless he has not been afforded a revocation
hearing and his parole revocation meets the requirements set forth in Section
15:574.9. Otherwise, as the district court held, there is no statutory recourse
to challenge a decision by the Parole Board. Making this clear, when
Galbraith attempted to file an administrative grievance to challenge the
Parole Board’s decision, his grievance was rejected. The stated reason was
the Parole Board’s policy that “decisions of these boards are d[i]scretionary
and may not be challenged.”
14
Case: 22-30159 Document: 00516940626 Page: 15 Date Filed: 10/23/2023
No. 22-30159
For purposes of Section 2254(b)’s exhaustion requirement, “a
prisoner’s state remedy must be adequate and available.” Preiser v.
Rodriguez, 411 U.S. 475, 493 (1973). Based on the statutory scheme alone,
Galbraith did not have an adequate and available state remedy or corrective
process that would have allowed him to bring this claim in state court.
Next, we look at the Louisiana caselaw cited by the parties and the
district court. The district court discussed Sinclair v. Stalder and determined
that “[h]ad [Galbraith] attempted to challenge rescission of his parole
through the state court system, his pleadings would have been dismissed as
directed in Sinclair because he was not denied a parole revocation hearing,
which is the only permissible basis to obtain review of a Parole Board
decision.” The State insists the district court “conflated its own perceived
likelihood of success on the merits of Galbraith’s challenge with whether
state review procedures were ‘available’ for Galbraith to pursue.” We
examine Sinclair.
In that case, a Louisiana prisoner sought review of the Parole Board’s
decision to deny him early release on parole. Sinclair, 867 So. 2d at 743–44.
The court held that a state habeas corpus application was “the proper
mechanism for an inmate who claims his initially lawful custody became
unlawful due to the parole board’s actions in denying him release on parole.”
Id. at 744 (emphasis added). The court explained that Section 15:574.11(A)
has been interpreted to mean “there is no appeal of decisions of the board
unless the procedural due process protections specifically afforded by the
hearing provisions of 15:574.9 are violated.” Id.; see also Bosworth v. Whitley,
627 So. 2d 629, 631 (La. 1993) (outlining Louisiana’s system of parole and
discussing that the Parole Board’s decisions “generally cannot be appealed”
as per Section 15:574.11). Accordingly, any challenge to actions of the Parole
Board not “in accordance with 15:574.9 should be dismissed by the district
court.” Sinclair, 867 So. 2d at 744. Because Louisiana’s parole statutes did
15
Case: 22-30159 Document: 00516940626 Page: 16 Date Filed: 10/23/2023
No. 22-30159
not “create an expectancy of release or liberty interest,” the court held
Sinclair’s application failed to state a cause of action. Id. In that case, Sinclair
challenged the parole board’s decision to deny his initial application for
parole, but the “parole board has full discretion when passing on applications
for early release.” Id.Galbraith’s case significantly differs from Sinclair’s — most clearly in
the fact that his petition for parole was granted, not denied. Galbraith had a
parole hearing and was granted a Certificate of Parole. The Parole Board set
his release date and arranged with the State of Texas to have Galbraith serve
his parole there. Galbraith’s parole grant was rescinded two days prior to his
release for a reason that appears unauthorized by statute at the time. 5
Thus, under Sinclair, if Galbraith would have filed a state habeas corpus
application challenging the Parole Board’s rescission, his application would
have been dismissed because the claim was not based on the Parole Board’s
failure to provide a parole revocation hearing. See id. This supports the
district court’s conclusion that Galbraith was not required to meet the
exhaustion requirement because there were no available state procedures to
exhaust.
The State also discusses a recent Louisiana Supreme Court opinion in
which the court analyzed a habeas corpus application that involved a
_____________________
5
This argument tends toward the merits review, but importantly, the Parole Board
did not have the statutory authority to rescind Galbraith’s parole grant for errors regarding
victim notification. The relevant statute was not amended until August of 2019, at which
time victim notification error was added as a permissible basis for parole rescission. LA.
ADMIN. CODE, tit. 22, pt. XI, § 504(K) (eff. Aug. 2019 to Jan. 2020). At the time of
Galbraith’s rescission, the only permissible bases for rescission were (1) violation of the
terms of work release, and (2) misconduct prior to release, and upon rescission, the parolee
would promptly receive a new parole hearing. LA. ADMIN. CODE, tit. 22, pt. XI § 504(K)
(eff. Jan. 2015 to Aug. 2019).
16
Case: 22-30159 Document: 00516940626 Page: 17 Date Filed: 10/23/2023
No. 22-30159
prisoner’s challenge to the rescission of his parole. Sneed, 328 So. 3d 1164.
There, a prisoner was granted parole; four days prior to his scheduled release,
he collapsed and was hospitalized. Id. at 1164. Upon his release from the
hospital, and after his parole release date had passed, he returned to prison
and was issued a disciplinary report for possessing contraband that was
related to his collapse. Id. Although he was later found “not guilty” of
possessing the contraband, a single Parole Board member rescinded his
parole grant a few days after that finding. Id.When presented with Sneed’s state habeas corpus application, the
Louisiana Supreme Court held: (1) Sneed’s limited liberty interest attached
once his release date passed; (2) rescission of his parole was not available for
that reason; (3) Sneed “was entitled to a revocation hearing rather than a
rescission of parole”; and (4) the denial of a revocation hearing was
appealable under Section 15:574.11. Id. at 1165. In an opinion issued a few
days later, the Louisiana Supreme Court further held the district court erred
by ordering Sneed to be released on parole because that was “not an available
remedy” under Section 15:574.11(C) for his due process violation. Sneed v.
Hooper, 328 So. 3d 1165, 1166 (La. 2021). The Louisiana Supreme Court
remanded the case to the district court with instructions to remand the
matter to the Parole Board to conduct a parole revocation hearing pursuant
to Louisiana law. Id.The district court distinguished Sneed on the ground that Sneed’s
parole was rescinded after his release date passed; thus, he came within the
statutory exception to appeal the denial of what should have been a
revocation hearing. The district court was correct that Sneed’s emphasis on
the timing of the Parole Board’s rescission means it does not apply here.
Sneed, 328 So. 3d at 1166.; see also Sneed, 328 So. 3d at 1164–65. The
Louisiana Supreme Court construed Sneed’s challenge as a revocation,
rather than a rescission, because he was kept in prison beyond his release date
17
Case: 22-30159 Document: 00516940626 Page: 18 Date Filed: 10/23/2023
No. 22-30159
that was scheduled before the purported rescission decision. Sneed, 328 So.
3d at 1164–65.
Because Galbraith’s rescission occurred two days prior to his release
date, his challenge could not be construed as a revocation of his parole as in
Sneed; passage of the release date is a necessary event for invoking
jurisdiction under Section 15:574.11. See § 15:574.11(A), (C). The Parole
Board, here, acted beyond the scope of its own policies when it rescinded his
parole. See supra nn.2, 5. Further, Galbraith did not receive formal, personal
notice of the rescission until May 1, 2017.
We find there is an absence of available State corrective process and
exhaustion of state remedies is therefore inapplicable and excused.
III. Timeliness
The State also argues that Galbraith’s habeas corpus application
needed to be brought under Section 2254, with its one-year limitations
period. We already concluded that the claim here is properly brought under
Section 2241 as one that challenges the execution of a sentence. There is no
statute of limitations on that claim, so it cannot be dismissed as untimely.
We now examine the merits of Galbraith’s habeas petition.
IV. Valid, protected liberty interest
Having determined that Galbraith’s habeas application arises under
Section 2241 and is not untimely, we conduct a de novo review of his
application. See Martinez v. Caldwell, 644 F.3d 238, 242 (5th Cir. 2011).
Galbraith posits that the State violated his substantive and procedural
due process rights by rescinding his parole grant without providing notice of
the reason for rescission and an opportunity to be heard. He argues “the
State created a right to parole that was granted” and, thus, that right could
not be taken away without due process of law. The magistrate judge
18
Case: 22-30159 Document: 00516940626 Page: 19 Date Filed: 10/23/2023
No. 22-30159
determined Galbraith’s procedural due process rights had been violated, 6
and the district court agreed.
The State contends Galbraith is not entitled to relief because
“Louisiana law does not afford or entitle Galbraith a right to parole or release
onto parole until” he is released from incarceration under “a validly executed
Certificate of Parole.” The State bases its argument on the premise that the
Parole Board has unfettered discretion in all aspects of parole and release
decisions. In support of its position, the State relies on an unpublished
opinion from the Louisiana First Circuit that states:
The parole statutes do not create an expectancy of release or
liberty interest. Sinclair, [] 867 So.2d at 744. The parole board
has full discretion when passing on applications for early
release. Id. Even if an inmate is fully rehabilitated, the
Louisiana parole scheme does not require that he be
paroled. Id. The procedures used by the Parole Board in
deciding whether an inmate should be released early are
beyond the scope of this court’s review. Id.Burton v. Bd. of Parole, 2009 CA 1246, 2010 WL 503019, *1 (La. App. 1 Cir.
Feb. 12, 2010). That opinion relies on Sinclair for its analysis, which we have
already rejected as inapplicable in this case. We conclude the same now with
regard to Burton because, there, the Louisiana First Circuit was considering
an appeal from a prisoner’s denial of parole. Id. The opinion discusses
“expectancy of release,” while the question here is whether there are limits
_____________________
6
The magistrate judge did not reach the question of whether there was a
substantive due process violation. Because we agree with the magistrate judge that
Galbraith’s procedural due process rights were violated, we too do not reach the
substantive due process question.
19
Case: 22-30159 Document: 00516940626 Page: 20 Date Filed: 10/23/2023
No. 22-30159
on the Parole Board to rescind parole after its formal grant but before the
effective date of release.
The State also relies on a Louisiana Supreme Court decision that
addressed parole eligibility for inmates sentenced to life and the commutation
of those sentences. See Bosworth, 627 So. 2d at 630. In Bosworth, the state
court held that state prisoners who were statutorily ineligible for parole had
no protected liberty interest in parole eligibility because the Louisiana
legislature set those parameters. See id. at 633–34. Because the analysis was
limited to non-grantees, it is not instructive of whether a parole grantee —
such as Galbraith — has a protected liberty interest.
Finally, the State argues a United States Supreme Court decision is
dispositive. See Jago v. Van Curen, 454 U.S. 14 (1981). As the State puts it,
that case “explicitly held that a prisoner has no protected liberty interest in
parole until the prisoner is actually released on parole, even where an initial
decision to grant parole is made and later rescinded.” The State’s summary
of the Supreme Court’s holding is overly broad, and the Court’s analysis and
holding is distinguishable from this case.
Jago is factually similar to this case, but there are notable differences
that impacted that outcome. The Jago Court reversed the Sixth Circuit’s
decision that the Ohio Parole Board violated the prisoner’s procedural due
process rights when it rescinded his parole grant prior to its effective date
without a hearing, a rescission based on the discovery that Jago had falsified
information in his parole interview. Id. at 15–17. The Court held that the
Sixth Circuit “erred in finding a constitutionally protected liberty interest by
rel[ying] upon the ‘mutually explicit understandings’ language of Perry v.
Sindermann,” 408 U.S. 593 (1972). Id. at 17. That was because the Court’s
“decision in Sindermann was concerned only with the Fourteenth
20
Case: 22-30159 Document: 00516940626 Page: 21 Date Filed: 10/23/2023
No. 22-30159
Amendment’s protection of ‘property’ interests, and its language, relied
upon by the Court of Appeals, was expressly so limited.” Id.
The Court reiterated that “‘[t]he ground for a constitutional claim, if
any, must be found in statutes or other rules defining the obligations of the
authority charged with exercising clemency.’” Id. at 20 (quoting Connecticut
Bd. of Pardons v. Dumschat, 452 U.S. 458, 465 (1981)). In Ohio, parole for
prisoners lay entirely within the discretion of the Ohio Adult Parole
Authority. Id. at 16. The Court did not discuss any statutory limits on
withdrawing a grant. Instead, the argument as to why process was due was
based on quasi-contract. Id. at 17–18. The Court rejected the Sixth Circuit’s
approach that relied on both the general law of contracts and common law to
give rise to a protected liberty interest in that particular parole context. Id. at
18–20.
Thus, the Ohio statutes providing for parole did not create a protected
liberty interest. Jago was therefore not entitled to a hearing prior to the
rescission of his parole. Id. at 21–22. We need to examine the Louisiana
statutory framework, but we first give background on liberty interests.
Those seeking to invoke the Fourteenth Amendment’s procedural
protection must establish that life, liberty, or property is at stake. Wilkinson
v. Austin, 545 U.S. 209, 221 (2005). “A liberty interest may arise from the
Constitution itself, by reason of guarantees implicit in the word ‘liberty,’ or
it may arise from an expectation or interest created by state laws or policies.”
Id. (citations omitted). The Supreme Court has recognized a liberty interest
subject to due process protection even when that interest was not created by
the Constitution. See Wolff v. McDonnell, 418 U.S. 539, 557 (1974). The
Wolff case dealt with the Nebraska statutory right to good-time credit, which
— according to the statute’s limiting language — could only be lost due to
serious misconduct:
21
Case: 22-30159 Document: 00516940626 Page: 22 Date Filed: 10/23/2023
No. 22-30159
But here the State itself has not only provided a statutory right
to good time but also specifies that it is to be forfeited only for
serious misbehavior. Nebraska may have the authority to
create, or not, a right to a shortened prison sentence through
the accumulation of credits for good behavior, and it is true that
the Due Process Clause does not require a hearing in every
conceivable case of government impairment of private
interest. But the State having created the right to good time
and itself recognizing that its deprivation is a sanction
authorized for major misconduct, the prisoner’s interest has
real substance and is sufficiently embraced within Fourteenth
Amendment ‘liberty’ to entitle him to those minimum
procedures appropriate under the circumstances and required
by the Due Process Clause to insure that the state-created right
is not arbitrarily abrogated.
Id. (quotation marks and citation omitted). Thus, “a person’s liberty is
equally protected, even when the liberty itself is a statutory creation of the
State.” Id. at 558. The purpose of due process protection is to shield a
person “against arbitrary action of government.” Id. Wolff is directly
applicable in that it states that a liberty interest arose because of the specific,
exclusive reasons a state statute gave for losing good-time credits.
Similarly, the Supreme Court has stated that “[t]here is no
constitutional or inherent right to parole, but once a State grants a prisoner
the conditional liberty properly dependent on the observance of special
parole restrictions, due process protections attach to the decision to revoke
parole.” Vitek v. Jones, 445 U.S. 480, 488 (1980) (quotation marks and
citation omitted). Though Vitek discussed parole revocation, implying that
the parole had commenced, we find it instructive for our purposes. Once a
“State grants a prisoner a right or expectation that adverse action will not be
taken against him except upon the occurrence of specified behavior, the
determination of whether such behavior has occurred becomes critical, and
the minimum requirements of procedural due process appropriate for the
22
Case: 22-30159 Document: 00516940626 Page: 23 Date Filed: 10/23/2023
No. 22-30159
circumstances must be observed.” Id. at 490–91 (quotation marks and
citation omitted).
We have applied these principles from Wolff and Vitek to reverse a
grant of summary judgment that dismissed a prisoner’s claim that his good-
time credits were revoked without due process. See Jackson v. Cain, 864 F.2d
1235, 1250–51 (5th Cir. 1989).
We must look at Louisiana law to determine whether a liberty interest
has been created so as to invoke due process protection.
Louisiana’s parole system is codified in Louisiana Revised Statutes
§ 15:574.2, et seq. “[T]he granting, conditions, or revocation of parole rest in
the discretion of the committee on parole.” La. R.S. § 15:574.11(A). At the
time of Galbraith’s parole rescission in April 2017, the Louisiana
Administrative Code provided grounds for rescinding parole once it had been
granted:
Upon notification by the secretary of the Department of Public
Safety and Corrections that an offender has violated the terms
of work release granted under § 311 or has engaged in
misconduct prior to the inmate’s release, the committee may
rescind its decision to grant parole. In such cases, the inmate
shall promptly receive another parole hearing.
LA. ADMIN. CODE, tit. 22, Pt XI, § 504(K) (eff. Jan. 2015 to Aug. 2019).
Thus, unlike Jago, the Louisiana parole authorities did not have
unlimited discretion. Certainly, a liberty interest was subject to rescission in
only two circumstances: (1) if the parolee violated terms of work release, or
(2) if the prospective parolee engaged in misconduct prior to his release. The
first possibility — violating terms of work-release — certainly seems relevant
only after parole has been granted, but regardless, that and misconduct before
parole begins were the only statutory reasons for rescinding parole prior to
an inmate’s release.
23
Case: 22-30159 Document: 00516940626 Page: 24 Date Filed: 10/23/2023
No. 22-30159
We agree with the magistrate judge’s conclusion that these statutory
provisions created a liberty interest protecting Galbraith from rescission:
While it is true that Louisiana’s parole statutes do not create a
liberty interest in the granting of parole, once parole has been
granted, the Parole Board’s discretion to rescind that parole
was statutorily limited to an objective, fact-based finding that
Petitioner had either: (1) violated the terms of his work release,
or (2) engaged in misconduct. Neither statutory basis was even
argued, much less established in April 2017. Under the
Fourteenth Amendment, Petitioner was entitled to notice and
a meaningful opportunity to be heard before rescinding his
parole, which did not occur.
Galbraith’s parole was ostensibly rescinded because of an alleged
problem with notice to a victim. He was notified of this reason on May 1,
2017, 10 days after his parole was rescinded. At the time, that was not a
permissible reason to rescind his grant of parole.
Therefore, Galbraith’s parole was improperly rescinded.
We AFFIRM and REMAND for the district court to release
Galbraith, subject to the parole conditions set forth by the Parole Board in its
original decision on November 3, 2016.
24