Daniel Johnson v. Rick Thaler, Director

Filing 920101230

Opinion

Case: 10-20394 Document: 00511336389 Page: 1 Date Filed: 12/30/2010

IN THE UNITED STATES COURT OF APPEALS United States Court of Appeals FOR THE FIFTH CIRCUIT Fifth Circuit FILED
N o . 10-20394 S u m m a r y Calendar December 30, 2010 Lyle W. Cayce Clerk

D A N I E L K. JOHNSON, P e titio n e r-A p p e lla n t v. R IC K THALER, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE, C O R R E C T I O N A L INSTITUTIONS DIVISION, R e s p o n d e n t -A p p e lle e

A p p e a l from the United States District Court fo r the Southern District of Texas U S D C No. 4:09-CV-1261

B e fo r e JOLLY, GARZA, and STEWART, Circuit Judges. P E R CURIAM:* D a n ie l K. Johnson, Texas prisoner # 274157, has applied for a certificate o f appealability (COA) for an appeal from the district court's judgment d is m is s in g his application for a writ of habeas corpus challenging the 2008 d e c is io n of the Texas Board of Pardons and Paroles (Parole Board) denying him r e le a s e on parole. Johnson raises the following substantive issues: (1) whether t h e Parole Board violated the Ex Post Facto Clause by applying parole statutes,

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 R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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: 10-20394 Document: 00511336389 Page: 2 Date Filed: 12/30/2010 No. 10-20394 g u id e lin e s , rules, customs and practices that were not in effect at the time of J o h n s o n 's conviction and sentencing; (2) whether Johnson's rights to due p r o c e s s , to equal protection, and against ex post facto laws were violated because t h e Parole Board did not rely on an adequate report on his future dangerousness b a s e d on the findings of a psychologist or psychiatrist; (3) whether the Parole B o a r d was qualified to assess Johnson's future dangerousness; (4) whether the r e v is e d Parole Guidelines considered by the Parole Board in determining J o h n s o n 's risk of recidivism were based upon acceptable research; (5) whether t h e Parole Board retaliated against Johnson for various lawsuits he has filed a g a in s t the Parole Board; (6) whether the Parole Board's no-tolerance policy for p e r s o n s serving life sentences for aggravated rape violated Johnson's right to d u e process; (7) whether the Parole Board violated Johnson's right to due process b y administratively finding him guilty of five unadjudicated offenses, and by d is r e g a r d in g the fact that the limitation period as to those offenses had lapsed; (8 ) whether Johnson was harmed by judicial construction of criminal statutes e n a c t e d after his offense; and (9) whether Johnson was denied credit for good t im e and calendar time served in violation of his equal protection rights. Johnson contends also that the district court erred in denying his motions for d i s c o v e r y and for an evidentiary hearing and his motion for relief from the ju d g m e n t. B e c a u s e Johnson has not shown that jurists of reason could find it d e b a t a b le whether the district court committed a substantive or procedural error in dismissing his habeas application, see Slack v. McDaniel, 529 U.S. 473, 484 (2 0 0 0 ), the request for a COA is DENIED. The district court refused to grant Johnson permission to pursue his r e t a lia t io n claim under 42 U.S.C. § 1983 because he was a sanctioned litigant w it h an unpaid $250 sanction. Although Johnson asserts correctly that the s a n c t io n has now been paid, the sanction prohibited Johnson from filing new a c t io n s before paying the sanction or obtaining leave of court. As he did neither, 2

Case: 10-20394 Document: 00511336389 Page: 3 Date Filed: 12/30/2010 No. 10-20394 t h e district court did not abuse its discretion in denying permission. The district c o u r t's judgment is AFFIRMED.

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