Mark Wood v. Rick Thaler, Director

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UNPUBLISHED OPINION FILED. [09-10743 Affirmed ] Judge: RHB , Judge: JLD , Judge: CH Mandate pull date is 01/05/2011 [09-10743]

Mark Wood v. Rick Thaler,:Director Case 09-10743

Document: 00511323022 Page: 1 Date Filed: 12/15/2010

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IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
December 15, 2010 N o . 09-10743 Lyle W. Cayce Clerk

M A R K ALLEN WOOD, P e t it io n e r - Appellant v. R I C K THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL J U S T I C E , CORRECTIONAL INSTITUTIONS DIVISION, R e s p o n d e n t - Appellee

A p p e a l from the United States District Court fo r the Northern District of Texas U S D C No. 3:08-cv-02283-N

B e fo r e BARKSDALE, DENNIS, and HAYNES, Circuit Judges. P E R CURIAM:* M a r k Allen Wood appeals the denial of his habeas petition pursuant to 28 U .S .C . § 2254. He argues that Texas's classification of his 1973 conviction for " m u r d e r with malice, aforethought" as a "capital felony," leading him to be s u b je c t e d to new parole review procedures, violates the Ex Post Facto Clause of A r t ic le 1, Section 10 of the Constitution. The district court stated that this claim w a s unexhausted. We need not pass upon that issue, as we deny Wood's claim

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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.

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Case: 09-10743 Document: 00511323022 Page: 2 Date Filed: 12/15/2010

No. 09-10743 o n the merits. 28 U.S.C. § 2254(b)(2) ("An application for a writ of habeas corpus m a y be denied on the merits, notwithstanding the failure of the applicant to e x h a u s t the remedies available in the courts of the State."). In Wallace v. Q u a r te r m a n , 516 F.3d 351 (5th Cir. 2008), this court considered whether a § 2254 habeas petitioner had established that the same changes in Texas's p a r o le procedures violate the Ex Post Facto Clause. We held that the changes do " n o t alone show a significant risk of increased confinement," and therefore such a petitioner must present facts demonstrating that the "law produces a `s u ffic ie n t risk' of increased confinement" in his case, in order to establish an ex p o s t facto violation warranting habeas relief. Id. at 356 (quoting Cal. Dep't of C o r r . v. Morales, 514 U.S. 499, 509 (1995)). Wood presents no such facts. Instead, W o o d attempts to distinguish Wallace. He argues that Wallace only held that T e x a s 's changes to its parole review procedures did not constitute an ex post fa c t o violation by "increas[ing] the punishment for criminal acts," and instead h e claims that Texas committed a distinct ex post facto violation, subjecting him t o the new parole procedures through "retroactively alter[ing] the definition of [h is ] crime[]." Id. at 354 (quoting Collins v. Youngblood, 497 U.S. 37, 43 (1990)) (in t e r n a l quotation marks omitted). Wood's argument is unavailing. To s u c c e s s fu lly raise an ex post facto challenge contending that the state has " r e t r o a c t iv e ly altered the definition" of an offense, one must allege that the state h a s "creat[ed] . . . a [new, retroactive] crime or penalty." Collins, 497 U.S. at 44 (q u o tin g Calder v. Bull, 3 U.S. (3 Dall.) 386, 397 (1798)) (internal quotation m a r k s omitted). Wood instead complains that the state has erroneously c la s s ifie d his offense as a "capital felony" leading him to be subjected to new p a r o le procedures that have increased his period of incarceration. Thus, Wallace g o v e r n s this case; accordingly, we AFFIRM.

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