Jackie Lynn Boss v. NATHANIEL QUARTERMAN Director, Texas Department of Criminal Justice, Correctional…

1 TEX. GOV’T CODE § 508.001(5). As discussed infra, mandatory supervision is a
conditional release provision in Texas that is no longer strictly mandatory but leaves the parole
panel a “modicum of discretion” to deny release.
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 07-50448
JACKIE LYNN BOSS
Petitioner - Appellant
v.
NATHANIEL QUARTERMAN
Director, Texas Department of Criminal Justice,
Correctional Institutions Division
Respondent - Appellee
Appeal from the United States District Court for the Western District of
Texas, Waco Division
Before HIGGINBOTHAM, BENAVIDES, and STEWART, Circuit Judges.
PATRICK E. HIGGINBOTHAM, Circuit Judge:
Texas state prisoner Jackie Lynn Boss, serving a 10-year sentence for
intoxication assault, appeals the district court's denial of his petition for a writ
of habeas corpus. Boss sought federal review of the Texas Board of Pardons and
Parole's June 2005 decision to deny him “mandatory supervision” release.1 The
parole panel's decision listed statutory reasons for the denial but did not offer
any evidence from the record to support its findings. Boss argues due process
requires more. We granted a certificate of appealability on the question of
United States Court of Appeals
Fifth Circuit
F I L E D
December 12, 2008
Charles R. Fulbruge III
Clerk

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No. 07-50488
2 472 U.S. 445 (1985).
3 Valdez v. Cockrell, 274 F.3d 941, 946 (5th Cir. 2001).
4 28 U.S.C. § 2254(d)(1).
5 Williams v. Taylor, 529 U.S. 362, 405 (2000).
6 TEX. GOV’T CODE § 508.001(5).
7 Teague v. Quarterman, 482 F.3d 769, 775 (5th Cir. 2007).
2
whether Superintendent v. Hill2 requires the Texas Board of Pardons and
Paroles to give reasons for denying mandatory supervision that are supported
by "some evidence." We AFFIRM the denial of the writ by the district court.
I
In addressing requests for habeas relief, we review a district court's
disposition of a pure legal issue de novo.3 The Antiterrorism and Effective
Death Penalty Act prohibits a federal court from granting an application for a
writ of habeas corpus on a claim adjudicated on the merits in state court unless
that adjudication "resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as determined by
the Supreme Court of the United States."4 We ask "if the state court applie[d]
a rule that contradicts the governing law set forth in [Supreme Court] cases."5
II
In the Texas penal system, mandatory supervision is "the release of an
eligible inmate sentenced to the institutional division so that the inmate may
serve the remainder of the inmate's sentence not on parole but under the
supervision of the pardons and paroles division."6 This early-release provision
is termed "mandatory" because prior to September 1, 1996, once a prisoner's
actual time served plus his accrued good-time credit equaled his prison sentence,
the inmate had a nondiscretionary right to release under Texas law "based solely
on simple arithmetic."7 But after Texas amended the mandatory-supervision

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No. 07-50488
8 TEX. GOV’T CODE § 508.147(a).
9 Teague, 482 F.3d at 774.
10 TEX. GOV’T CODE § 508.149(b).
11 Teague, 482 F.3d at 775.
12 Texas Board of Pardons and Paroles, Board Directive for Rule 145.6 Notification of
a Parole Panel Decision.
3
scheme, the scheme's title became something of a misnomer. No longer is
release strictly mandatory upon a prisoner's eligibility. Instead, under the
post-September 1, 1996 scheme, although the statute still reads that a parole
panel "shall issue the release" of an eligible inmate,8 the addition of a new
section allows the parole panel a "modicum of discretion"9 to deny release if it
determines that "(1) the inmate's accrued good conduct time is not an accurate
reflection of the inmate's potential for rehabilitation; and (2) the inmate's release
would endanger the public."10 We have described this new scheme as
"mandatory in large part, but also discretionary in small part."11
Under this system, the parole panel denied Boss mandatory supervision
based on a review of both Boss' record and additional information that Boss
submitted. The panel's one-page decision consisted of a list of five reasons for
Boss' denial, all of which were paragraphs cut verbatim from the Parole Board's
Directives.12
III
Boss argues that the procedure used by the parole panel to deny him
mandatory supervision did not satisfy due process because the panel's report
was not supported by "some evidence" from the record. The State does not
contest that Boss is entitled to due process, recognizing that this Court recently
held that Texas' mandatory-supervision scheme creates an "expectancy of
release"; a protected liberty interest that Texas may not deprive an inmate of

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No. 07-50488
13 Teague, 482 F.3d 773-77.
14 472 U.S. 445 (1985).
15 Id. at 453-57.
16 Id. at 454.
17 461 F.3d 1123 (9th Cir. 2006).
4
without the requisite due process.13 Rather, the State contends that it provided
the process due in these circumstances—an opportunity to be heard and a report
informing him of the reasons for denial.
Boss argues that due process required the parole panel to specify
particular evidence in the inmate's record when denying mandatory supervision,
pointing to Superintendent v. Hill.14 There, the Supreme Court considered the
process due when a prison disciplinary board revokes an inmate's good-time
credit because of the inmate's violation of a prison rule.15 The Court held that
to revoke good-time credit, a board’s decision must be supported by "some
evidence in the record."16 Boss contends that Hill’s “some evidence”
requirement applies with equal force to a board’s denial of mandatory
supervision because both a revocation of good-time credits and a denial of
mandatory supervision directly affect the duration of the prison term. The good-
time credits protected in Hill, Boss argues, are an inmate’s means to the goal of
release; if the means are afforded a protection, so to must be the goal.
Boss’ precise reasoning was recently employed by the Ninth Circuit in Sass
v. California Board of Prison Terms,17 in which that court held some evidence is
required to deny parole to California prisoners. The 9th Circuit, relying on Hill,
found no difference between the revocation of good-time credits and the denial
of parole, reasoning "[t]o hold that less than the some evidence standard is
required would violate clearly established federal law because it would mean

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No. 07-50488
18 Id. at 1129.
19 Mathews v. Eldridge, 424 U.S. 319, 334 (1976) (emphasis added).
20 Id. at 335.
21 Id.
22 Superintendent v. Hill, 472 U.S. 445, 454-55 (1985).
5
that a state could interfere with a liberty interest—that in parole—without
support or in an otherwise arbitrary manner."18
We are not persuaded that Hill's “some evidence” requirement is clearly
established law in the context of a Texas parole board's denial of mandatory
supervision. Boss’ argument employs a myopic focus on the prisoner's interest
in release, essentially suggesting that any state interference with the prisoner’s
release implicates Hill's “some evidence” protections. Such reasoning ignores
that due process “is not a technical conception with a fixed content unrelated to
time, place and circumstance,” but is “flexible and calls for such procedural
protections as the particular situation demands.”19 Based on the particular
situation presented, a court must balance various factors to determine the
proper protections, factors which are not limited to the “private interest that will
be affected by the official action,"20 as Boss’ argument implies, but also include
the risk of an erroneous deprivation, the probable value of additional procedural
safeguards, and the Government's interest.21 Indeed, the latter factors weigh
particularly heavy in the prison setting, where additional procedural protections
must be balanced against "the legitimate institutional needs of assuring the
safety of inmates and prisoners, avoiding burdensome administrative
requirements that might be susceptible to manipulation, and preserving the
disciplinary process as a means of rehabilitation."22 Boss' argument does not
account for the fact that these factors may weigh differently in denying
mandatory supervision than in revoking good-time credits.

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No. 07-50488
23 442 U.S. 1 (1979).
24 The conditional release provision at issue in Greenholt was the Nebraska parole
statute. Id. at 4. The Court first held, before defining the requirements of due process, that
Nebraska’s parole scheme created an “expectancy of release” protected by the Due Process
Clause. Id. at 11-12. The 5th Circuit recently held that “Texas’s mandatory supervision
scheme is virtually identical to [the parole scheme] at issue in Greenholtz,” and thus also
creates an “expectancy of release.” Teague v. Quarterman, 482 F.3d 769, 776 (5th Cir. 2007).
25 Greenholtz, 442 U.S. at 15.
26 Id.
6
The Supreme Court has purposefully afforded disparate protections in
these different situations. Prior to its decision regarding the revocation of good-
time credits in Hill, the Supreme Court in Greenholtz v. Inmates of Neb. Penal
& Correctional Complex23 considered what process is due when a parole board
denies a prisoner conditional release24—the precise question at issue in this case.
The Court held:
[W]e find nothing in the due process concepts as they have thus far
evolved that requires the Parole Board to specify the particular
“evidence” in the inmate's file or at his interview on which it rests
the discretionary determination that an inmate is not ready for
conditional release.25
The court reasoned that to require a parole board to provide a summary of the
evidence would "convert the process into an adversary proceeding," which is
appropriate for determining the retrospective questions of fact relevant in the
revocation of good-time credits, but unhelpful in making the predictive and
discretionary determination involved in conditional release.26 In other words,
while the statutory conditions to revoke good-time credits are "essentially
factual," requiring a board to determine if the prisoner has, in fact, broken a

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No. 07-50488
27 Id. at 13.
28 Id. at 16. Because of the subjective and predictive nature of the conditional release
decision, requiring a parole panel to provide evidence to support its decision would not serve
the purpose of minimizing the risk of error. Id. at 13.
29 Wilkinson v. Austin, 545 U.S. 209, 228-29 (2005).
7
prison rule, the conditional release decision is "necessarily subjective in part and
predictive in part,"27 an “experienced prediction based on a host of variables."28
Despite these differences, Boss would have us hold that Hill clearly
established the due process requirements for deciding whether to release a
prisoner under Texas’ rules of mandatory supervision. This argument places
Hill in tension with Greenholtz, which otherwise is controlling law in this case.
We find no persuasive reason to conclude that Hill supplanted Greenholtz.
The Hill opinion made no reference to Greenholtz, a strong implication that
parole board decisions on good-time credits and on mandatory supervision make
distinct draws upon due process. Moreover, the Supreme Court continues to rely
on Greenholtz after Hill. In a case considering the due process required to
transfer a prisoner to a supermax facility, the Court stated "[w]here the inquiry
draws more on the experience of prison administrators . . . the informal,
nonadversary procedures set forth in Greenholtz . . . provide the appropriate
model."29
Denying mandatory supervision and revoking good-time credits are
distinct deprivations for which the Supreme Court has prescribed different
constitutional protections. We cannot find that Hill's “some evidence”
requirement clearly established the due process requirements for denials of
mandatory supervision. Rather, Greenholtz continues to define the procedural
protections due before a state denies a prisoner conditional release. AFFIRMED.

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