Petition for Writ of Certiorari — Earl McBride, Petitioner v. Bobby Lumpkin, Director, Texas Department of Criminal Justice, Correctional Institutions Division

No.

IN THE

SUPREME COURT OF THE UNITED STATES

EARL MCBRIDE JR., - PETITIONER

VS.

LORIE DAVIS, DIR. - RESPONDENT

ON PETITION FOR WRIT OF CEERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

Earl McBride Jr.,

Petitioner Pro se

TDCJ-ID #00315371 Ramsey Unit

1100 FM 655, Rosharon, Texas 77583

APPENDIX A

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

United States Court of Appeals

Fifth Circuit

No. 16-20626

Summary Calendar

FILED

May 14, 2018

Lyle W. Cayce

Clerk

EARL MCBRIDE, JR.

Petitioner-Appellant

v.

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF

JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

CRIMINAL

Respondent-Appellee.

Appeals from the United States District Court

for the Southern District of Texas

USDC No. 4:16-CV-2012

Before JOLLY, OWEN, and HAYNES, Circuit Judges.

PER CURIAM:*

Petitioner Earl McBride, Jr., Texas inmate # 315371, was convicted of

capital murder in 1980 and sentenced to a life term of imprisonment. In 2016,

McBride filed a 28 U.S.C. § 2254 petition asserting constitutional claims based

on his factual allegation that he had been paroled in 2014 but his parole was

improperly revoked before he was released. He specifically denied that he was

Pursuant to 5TH ClR. R. 4 / .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

ClR. R. 47.5.4.

:>

No. 16-20626

challenging any discretionary decision to grant or deny him parole. Without

ordering a response and without the benefit of any state court records, the

district court dismissed McBride’s claims as a meritless challenge to a denial

of parole. This court granted a certificate of appealability as to “whether the

district court correctly dismissed [McBride’s] constitutional claims as

predicated on a denial, rather than a revocation, of parole.”

Denial of parole and revocation of parole are subject to different

constitutional standards. See Morrissey u. Brewer, 408 U.S. 471, 482-84 (1972);

Jennings v. Owens, 602 F.3d 652, 657 (5th Cir. 2010); Orellana v. Kyle, 65 F.3d

29, 32 (5th Cir. 1995). The district court did not analyze McBride’s claims

under the standard applicable to revocation of parole and the limited record

does not conclusively establish McBride’s parole status. Merits briefing has

not clarified matters.

Accordingly, we conclude that the district court

misconstrued the basis of McBride’s constitutional claims and prematurely

dismissed his § 2254 petition. See Kiser v. Johnson, 163 F.3d 326, 328 (5th Cir.

1999). We therefore vacate the judgment and remand for further proceedings

consistent with this opinion. McBride’s motion for appointment of counsel,

construed as a motion for reconsideration of the denial of the original motion

to appoint counsel, is denied without prejudice to reurging the motion on

remand.

JUDGMENT

VACATED

AND

REMANDED;

MOTION

APPOINTMENT OF COUNSEL DENIED WITHOUT PREJUDICE.

2

FOR

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 19-20718

EARL MCBRIDE, JR.,

Petitioner-Appellant

v.

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL

JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

Respondent-Appellee

Appeals from the United States District Court

for the Southern District of Texas

ORDER:

Petitioner Earl McBride, Jr., Texas inmate # 315371, was convicted by a

jury of capital murder and sentenced to a life term of imprisonment. In 2016,

McBride filed a 28 U.S.C. § 2254 petition asserting constitutional claims

predicated on what he alleged was a revocation of parole. Following a previous

appeal and remand, see McBride v. Davis, 722 F. App’x 366, 367 (5th Cir. 2018),

the district court dismissed the petition as time barred. McBride now moves

for a certificate of appealability (COA) to appeal that decision.

To obtain a COA, McBride must make “a substantial showing of the

denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). Where, as here, the

district court’s denial of federal habeas relief is based on procedural grounds,

this court will issue a COA “when the prisoner shows, at least, that jurists of

reason would find it debatable whether the petition states a valid claim of the

denial of a constitutional right and that jurists of reason would find it

debatable whether the district court was correct in its procedural ruling.”

Slack v. McDaniel, 529 U.S. 473, 484 (2000). Both showings are required. See

id. at 484-85; Houser u. Dretke, 395 F.3d 560, 562 (5th Cir. 2004).

In light of the record developed on remand, McBride fails to make the

requisite showing of a valid claim of the denial of a constitutional right based

on the revocation, rather than denial, of parole. See Slack, 529 U.S. at 48485; Houser, 395 F.3d at 562; Teague v. Quarterman, 482 F.3d 769, 774 (5th Cir.

2007). Accordingly, his motion for a COA is DENIED.

A True Copy

Certified order issued Jul 07, 2020

vjwlt Ui. OtMjLlL

Clerk, U.S. Court of fibppeals, Fifth Circuit

ANDREW S. OLDHAM

UNITED STATES CIRCUIT JUDGE

NO.

IN THE

SUPREME COURT OF THE UNITED STATES

EARL MCBRIDE JR., -PETITIONER

VS.

LORIE DAVIS, DIR, - RESPONDENT

ON PETITION FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

EARL MCBRIDE JR,

PETITIONER PROSE

TDCI-ID #00315371 RAMSEY UNIT

1100 FM 655 , ROSHARON, TEXAS 77583

APPENDIX B

FEDERAL ROLES OF CIVIL PROCEDURE

RULE 56 Summary Judgment

(a) Motion for Summary judgment or Partial Summary Judgment.

A party may move for summary judgment,

identifying each claim or

defense---- or the part of each claim or defense---- on which sum­

mary judgment is sought. The court shall grant summary judgment

if the movant shows that there is no genuine dispute as to any

material fact and the movant is entitled to judgment as a matter

of law.

The court should state on the record the reasons for

granting or denying the motion.

(b)

Time to File a Motion. Unless a different time is set

by local rule or the court orders otherwise, a party may file a

motion for summary judgment at any time until 30 days after the

close of all discovery.

(c) Procedures.

(1) Supporting"-Factual Positions.

A party.asserting

that a fact cannot be or is genuinely disputed must support the

assertion by;

(A) citing to particular parts of materials in the record,

including depositions, documents, electtronically stored infor­

mation, affidavits or declarations, stipulations (including those

made for purposes of the motion only), admissions,

interrogatory

answers, or other materials; or

(B)

showing that the materials cited do rio„t establish the

absence or presence of a genuine dispute, or that an adverse

56.1

party cannot produce admissible evidence to support the fact.

(2) Objection That a Fact Is Not Supported by Admissible

Evidence. A party may object that the material cited to

support or dispute a fact cannot be presented in a form that

could be admissible in evidence.

(3) Materials Not Cited.

The court need consider only the

cited materials, but it may consider other materials in the

record.

(4) Affidavits or Declarations.

An affidavit or declara- ,

tion used to support or oppose a motion must be made on personal

knowledge, set out facts that would be admissible in evidence,

and show that the affiant or declarant is competent to testify on

the matters stated.

(d) When Facts Are Unavailable to the Nonmovant.

If a non­

movant shows by affidavit or declaration that, for specified

reasons, it cannot present facts essential to justify its .

opposition, the court may;

(1) defer considering the motion or deny it;

(2) allow time to obtain affidavits or declarations or to

take discovery; or

(3) issue any other appropriate order.

(e) Failing to Properly Support or Address a Fact. If a

party fails to properly support an assertion of fact or fails to

properly address another party's assertion of fact as required by

Rule 56(c), the court may;

(1) give an opportunity to properly support or address the

f act;

56.2

(2) consider the fact undisputed for purposes of the motion;

(3) grant summary judgment if the motion and supporting

materials— including the £a££8-'cionsjider ed~*tmdispu.ted— show that

the movant is entitled to it; or

(4) issue any other appropriate order.

(f) Judgment Independent of the Motion After giving notice

and a reasonable time to respond/ the court may;

(1) grant summary judgment for a nonmovant;

(2) grant the motion on grounds not raised by a party; or

(3) consider summary judgment on its own after identifying

for the parties materials facts that may not be genuinely in

dispute.

(g) Failing to Grant All the Requested Relief. If the court

does not grant all the relief requested by the motion/

it may

enter an order stating any material fact — including an item of

damages or other relief

that is not genuinely in dispute and

treating the fact as established in the case.

(h) Affidavit or Declaration Submitted in Bad Faith. If

satisfied that an affidavit or declaration,under this rule.is

submitted in bad faith or solely for delay/ the court —after

notice and reasonable time to respond— may order the submitting

party to pay the other party the reasonable expenses/

including

attorney fees/it incurred as a result. An offending party or

attorney may also be held in contempt or subject to other appro­

priate sanctions.

56.3