Hallcy v. Lumpkin

Case: 23-10473 Document: 00516809732 Page: 1 Date Filed: 07/05/2023
United States Court of Appeals
for the Fifth Circuit
____________
United States Court of Appeals
Fifth Circuit
No. 23-10473
Summary Calendar FILED
____________ July 5, 2023
Lyle W. Cayce
Mark DeWayne Hallcy, Clerk
Petitioner—Appellant,
versus
Bobby Lumpkin, Director, Texas Department of Criminal Justice,
Correctional Institutions Division,
Respondent—Appellee.
______________________________
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 5:23-CV-42
______________________________
Before Jolly, Jones, and Ho, Circuit Judges.
Per Curiam: *
Mark DeWayne Hallcy, Texas prisoner # 2149848, has filed this
interlocutory appeal from the district court’s denial of his motions for
appointment of counsel, expansion of the record, and release on bail pending
the disposition of his 28 U.S.C. § 2254 petition. We construe Hallcy’s notice
_____________________
*
This opinion is not designated for publication. See 5th Cir. R. 47.5.
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No. 23-10473
of appeal as a motion seeking release on bail pending the conclusion of this
appeal.
As an initial matter, because the district court’s order denying the
motions for appointment of counsel and for expansion of the record was
neither a final order nor an appealable interlocutory or collateral order, we
lack jurisdiction to consider Hallcy’s appeal from the denial of those motions.
See Brinar v. Williamson, 245 F.3d 515, 517 (5th Cir. 2001); Thomas v. Scott,
47 F.3d 713, 715-16 (5th Cir. 1995). However, we exercise jurisdiction over
the instant appeal from the denial of Hallcy’s motion for release pending
review of his habeas petition. See Calley v. Callaway, 496 F.2d 701, 702 (5th
Cir. 1974).
To obtain release on bail pending review of a habeas petition, or
pending an appeal in a § 2254 case, the petitioner must (1) raise a substantial
constitutional claim with a high probability of success and (2) demonstrate
that “extraordinary or exceptional circumstances” exist that require his
release from prison “to make the habeas remedy effective.” Id. Hallcy
claims violations of the Ex Post Facto and Due Process clauses, essentially
arguing that he has a constitutional right to have his earned good-time credits
applied to his eight-year sentence, which would result in his immediate
release.
Because the grant of parole is discretionary, we have repeatedly held
that Texas law does not create a liberty interest in parole that is protected by
the Due Process Clause. See Teague v. Quarterman, 482 F.3d 769, 774 (5th
Cir. 2007). Further, to the extent Hallcy challenges any good-time credits
that were forfeited, “there is no protected liberty interest in the restoration
of good time credits.” Hallmark v. Johnson, 118 F.3d 1073, 1079-80 (5th Cir.
1997). To the extent Hallcy claims he should have been released on
mandatory supervision, his arguments do not implicate due process concerns
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because Texas law provides that mandatory supervision is unavailable to
offenders who were convicted of aggravated assault with a deadly weapon.
See Teague, 482 F.3d at 777; Tex. Penal Code § 22.02(a)(2), (b) (2009);
Tex. Gov’t Code § 508.149(a)(7) (2017).
Further, retroactive changes in parole laws may violate the Ex Post
Facto Clause, see Garner v. Jones, 529 U.S. 244, 249-50 (2000), but
“speculative, attenuated and conjectural effects are insufficient” to
demonstrate an ex post facto violation, Hallmark, 118 F.3d at 1078 (internal
quotation marks and citation omitted). Hallcy has not shown that there has
been any change in state law since the time of his conviction that is being
applied retroactively and, thus, has not shown an ex post facto violation. See
Garner, 529 U.S. at 249-50. To the extent that Hallcy argues that the denial
of his state habeas application without a hearing or written reasons
constitutes a substantial constitution claim, a challenge to infirmities in a
state habeas proceeding is not cognizable on federal habeas review. Rudd v.
Johnson, 256 F.3d 317, 320 (5th Cir. 2001).
Because the district court did not base its decision on an error of law
or an erroneous assessment of the evidence, it did not abuse its discretion by
denying Hallcy’s motion for release on bail pending disposition of his habeas
petition. See United States v. Olis, 450 F.3d 583, 585 (5th Cir. 2006); United
States v. Castillo, 430 F.3d 230, 238 (5th Cir. 2005). Further, to the extent
that Hallcy requests release on bail while this appeal is pending, he has also
failed to make the requisite showing. See Calley, 496 F.2d at 702.
Given the foregoing, the judgment of the district court is
AFFIRMED in part, the appeal is DISMISSED in part for lack of
jurisdiction, and Hallcy’s motion for release on bail pending appeal is
DENIED.
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