Petition for Writ of Certiorari — Samuel Galbraith, Petitioner v. Darrel Vannoy, Warden

Supreme Court briefNov 12, 2025

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APPENDIX A

WESTLAW

Galbraith v. Hooper

United States Court of Appeals, Fifth Circuit.August20, 2025151 F.4th 795

(Approx. 22 pages)

151 F.4th 795

United States Court of Appeals, Fifth Circuit.

Samuel GALBRAITH, Petitioner—Appellee,

Tim HOOPER, Warden, Louisiana State Penitentiary, Respondent

—Appellant.

No. 22-30159

FILED August 20, 2025

Synopsis

Background: State prisoner filed application for writ of habeas corpus

seeking to have his parole reinstated on ground that its rescission just prior

to its effective date violated his due process rights. The United States

District Court for the Middle District of Louisiana, John W. deGravelles, J.,

2022 WL 907142, granted the application for the reasons set forth in the

report and recommendation of Erin Wilder-Doomes, United States

Magistrate Judge, 2022 WL 943144. State appealed.

Holdings: On petition for rehearing, the Court of Appeals, Southwick,

Circuit Judge, held that:

1 proper procedure for prisoner to assert his claim was an application for

writ of habeas corpus, rather than a § 1983 action;

2 prisoner's habeas application was subject to one-year statute of

limitations for habeas applications filed by prisoners in custody pursuant to

judgment of state court;

3 one-year limitations period for prisoner's habeas application began to run

at time he received letter notifying him that Louisiana Board of Pardons and

Parole had rescinded his parole and stating reason for the rescission; and

4 prisoner could have filed a state habeas application to challenge Parole

Board's decision, and thus he failed to exhaust his state-court remedies

prior to filing federal application.

Petition for rehearing granted; reversed and rendered.

Dennis, Circuit Judge, filed dissenting opinion.

Opinion, 85 F.4th 273, withdrawn, 2024 WL 1170026.

Appellate ReviewPost-Conviction Review

West Headnotes (14)

Change View

Habeas Corpus

Review de novo

Habeas Corpus O53 Clear error

In habeas corpus appeal, Court of Appeals reviews district court's

findings of fact for clear error and its conclusions of law de novo. 28

U.S.C.A. §§ 2241, 2254.

Civil Rights

Parole

Habeas Corpus &=■ Revocation

Proper procedure for state prisoner to seek to have his parole

reinstated, on ground that its rescission just prior to its effective

date violated his due process rights, was an application for writ of

habeas corpus, rather than a § 1983 action; prisoner brought a

direct and immediate claim about the duration of his confinement

and was not seeking a new parole hearing. U.S. Const. Amend. 14;

28 U.S.C.A. §§ 2241, 2254; 42 U.S.C.A. § 1983.

Habeas Corpus €■= Limitations applicable

Habeas Corpus O’ Characterization; treatment as habeas

corpus petition

Application for writ of habeas corpus filed by state prisoner, seeking

to have his parole reinstated on ground that its rescission just prior

to its effective date violated his due process rights, was to be

viewed under both § 2241 and § 2254, rather than only § 2241,

and thus the application was subject to one-year statute of

limitations for habeas applications filed by prisoners in custody

pursuant to judgment of state court; prisoner was requesting that

parole be reinstated and that he immediately be released from

prison, and outcome in prisoner's favor would affect the time he

would serve. U.S. Const. Amend. 14; 28 U.S.C.A. §§ 2241,

2244(d)(1), 2254.

Habeas Corpus O’ Petitions by state or territorial prisoners in

general

Habeas Corpus €==> Characterization; treatment as habeas

corpus petition

Section 2241, which is the general statute authorizing federal courts

to grant writs of habeas corpus in their respective jurisdictions, and

§ 2254, which sets forth requirements for grant of habeas relief to a

petitioner held in custody pursuant to state-court judgment, do not

represent an either/or dichotomy. 28 U.S.C.A. §§ 2241, 2254.

Habeas Corpus

Federal Courts

Authority of federal courts to grant writs of habeas corpus in their

respective jurisdictions applies to persons in custody regardless of

whether a final judgment exists. 28 U.S.C.A. § 2241(a).

Habeas Corpus

general

Petitions by state or territorial prisoners in

Section 2254, which relates to habeas petitions filed by petitioners

in custody pursuant to state-court judgment, is not an independent

avenue through which petitioners may pursue habeas relief;

instead, all habeas petitions are brought under § 2241, and § 2254

places additional limits on a federal court's ability to grant habeas

relief if the petitioner is being held in custody pursuant to the

judgment of a state court. 28 U.S.C.A. §§ 2241, 2254.

Habeas Corpus €= Accrual

State prisoner who was serving sentence for manslaughter knew

factual premise of his habeas claim, namely that Louisiana Board of

Pardons and Parole had rescinded his parole for a reason other than

violating terms of work release or engaging in misconduct prior to

release, at time he received letter notifying him that Parole Board

had rescinded his parole because of technical irregularities in

notifying victim's family of original parole hearing, and thus oneyear limitations period for filing habeas application began to run at

that time, although prisoner did not have access to parole file for

purposes of showing that Parole Board's asserted reason was false;

letter clearly stated grounds for Parole Board's decision, which was

neither of reasons authorized by state's administrative code. 28

U.S.C.A. §§ 2241, 2244(d)(1)(D), 2254; La. Admin. Code tit. 22,

pt. XI, § 504(K) (2017).

Habeas Corpus <0= Delayed discovery of claim

One-year statute of limitations for person in custody pursuant to a

state-court judgment to file application for a writ of habeas corpus,

which can run from the date on which the factual predicate of the

claim or claims presented could have been discovered through the

exercise of due diligence, does not convey a statutory right to an

extended delay while a habeas petitioner gathers every possible

scrap of evidence that might support his claim. 28 U.S.C.A. §§

2244(d)(1)(D), 2254.

Habeas Corpus €= Sentence and punishment

State prisoner could have filed a state habeas application to

challenge decision of Louisiana Board of Pardons and Parole that

rescinded his parole just prior to its effective date, and thus

prisoner failed to exhaust his state-court remedies prior to filing

application for federal writ of habeas corpus; prisoner was not

challenging validity of his original sentence or seeking to have

sentence set aside, but was instead asserting that his lawful

sentence had now become unlawful because Parole Board had no

authority to rescind his certificate of parole. 28 U.S.C.A. §§

2254(b)(1), 2254(c); La. Code Crim. Proc. Ann. art. 362(2).

10 Habeas Corpus

Review de novo

Whether federal habeas petitioner has exhausted state remedies is

question of law reviewed de novo. 28 U.S.C.A. § 2254(b)(1).

11 Habeas Corpus

Comity or jurisdiction

The requirement for petitioner in custody pursuant to state-court

judgment to exhaust state-court remedies, prior to bringing petition

for writ of habeas corpus, is not jurisdictional, but reflects a policy

of federal-state comity designed to give the State an initial

opportunity to pass upon and correct alleged violations of its

prisoners' federal rights. 28 U.S.C.A. § 2254(b)(1).

12 Pardon and Parole €=» Review

Under Louisiana law, a prisoner has no right to appeal a decision by

the Louisiana Board of Pardons and Parole unless his parole was

revoked without a revocation hearing. La. Rev. Stat. Ann. §§

15:574.9, 15:574.11(A).

13 Habeas Corpus

Pending proceedings; pretrial or

prejudgment petitions

Habeas Corpus

Post-Conviction Motions or Proceedings

Under Louisiana law, a writ of habeas corpus generally is not the

proper procedural device for petitioners seeking post-conviction

relief because habeas deals with preconviction complaints

concerning custody; an application for post-conviction relief is a

petition seeking to have the conviction and sentence set aside. La.

Code Crim. Proc. Ann. arts. 362(2), 924.

14 Habeas Corpus tr5* Improper restraint or detention in general

Under Louisiana law, state habeas applies in a post-conviction

setting when applicant is not seeking to set aside his original

sentence, but instead alleges that the original custody, which was

lawful, has become unlawful due to some act, omission, or event

which has since occurred. La. Code Crim. Proc. Ann. arts. 362(2),

924.

Appeal from the United States District Court for the Middle District of

Louisiana, USDC No. 3:19-CV-181, John W. deGravelles, U.S. District Judge

Attorneys and Law Firms

Nicholas Joseph Trenticosta, Esq., Attorney, Herrero & Trenticosta, New

Orleans, LA, for Petitioner-Appellee.

John Taylor Gray, Assistant Attorney General, Louisiana Department of

Justice, Criminal Division, Baton Rouge, LA, Christopher Neal Walters,

Assistant Attorney General, Office of the Governor for the State of

Louisiana, Baton Rouge, LA, Grant Lloyd Willis, Assistant Attorney General,

Taylor, Porter, Brooks & Phillips, L.L.P., Baton Rouge, LA, for Respondent-

Appellant.

Before Stewart, Dennis, and Southwick, Circuit Judges.

ON PETITION FOR REHEARING

Leslie H. Southwick, Circuit Judge:

*797 An earlier opinion in this appeal was issued on October 23, 2023. See

*798 Galbraith v. Hooper, 85 F.4th 273 (5th Cir. 2023). The opinion was

later withdrawn. Galbraith v. Hooper, No. 22-30159, 2024 WL 1170026 (5th

Cir. Mar. 19, 2024). The petition for rehearing is GRANTED.

Samuel Galbraith, a Louisiana prisoner, sued the Louisiana Board of Pardons

and Parole ("Parole Board") and sought reinstatement of his parole on the

grounds that its rescission just prior to its effective date violated his due

process rights. The district court agreed with Galbraith and ordered his

release on parole within 30 days, subject to the original conditions of his

parole. On appeal, the State argues that Galbraith's claim is barred by 28

U.S.C. § 2244's one-year statute of limitations and that Galbraith did not

fully exhaust his state court remedies. We agree and REVERSE.

FACTUAL AND PROCEDURAL BACKGROUND

In February 2000, Samuel K. Galbraith pled guilty to the 1988 manslaughter

and attempted aggravated rape of Karen Hill. He was sentenced to 71 years

of hard labor. The victim's surviving husband, James Hill, completed a

"Louisiana Department of Public Safety and Corrections Victim/Witness

Notification Request Form" in November 2000. The form required the Parole

Board to notify the named person when a parole hearing was granted for a

specified inmate. The record does not contain a similar form from any other

person requesting notice of Galbraith's potential parole.

In the spring of 2016,1 Galbraith filed an Application for Parole. His first

possible parole eligibility date was April 23, 2017. The Parole Board set

Galbraith's hearing for October 13, 2016, and sent notification letters on

July 7, 2016, to Hill and Jessie McWilliams, Karen Hill's mother, advising

them of their right to appear and present testimony at the parole hearing.

McWilliams's letter was erroneously addressed to a post office box in

Albany, New York, instead of to the same-numbered post office box in

Albany, Illinois. On September 14, 2016, Galbraith's attorney requested a

continuance of the October hearing until November 3, 2016, which was

granted. The Parole Board sent notification letters with the new hearing date

to Hill and McWilliams on September 28, 2016, this time to their correct

addresses. At that time, the Louisiana Administrative Code required

notification to be sent to "[t]he victim, spouse, or next of kin of a deceased

victim" 30 days before the parole hearing. LA. ADMIN. CODE tit. 22, pt. XI,

§ 510(B) (eff. Aug. 2013 to Mar. 2018). 2 Thus, the Parole Board was

required to give notice only to Hill as the surviving husband. The Parole

Board did so.

A pre-parole investigation report was prepared. The report contained

statements from Hill, McWilliams, the Vernon Parish District Attorney's

Office, the Vernon Parish Sheriff's Office, and the Vernon Parish sentencing

judge. They all opposed parole. At Galbraith's parole hearing, a threemember panel of the Parole Board heard testimony and statements from

those opposed to his early release. The panel also *799 heard from

Galbraith's family members, who supported his parole. Galbraith was

represented by counsel at the hearing. The panel unanimously voted to

grant parole to Galbraith with a scheduled release date of April 23, 2017,

and with a list of specific conditions during his parole term. The Certificate of

Parole showed that Galbraith would reside in Aransas Pass, Texas, and

would be subject to the authority of a parole office in Corpus Christi, Texas.

Neither Hill nor McWilliams attended the hearing, but each provided a

written statement. Both were contacted directly by someone from the

Department of Corrections after the hearing and were notified of the

decision.

After parole was granted, Vernon Parish District Attorney Asa Skinner filed

requests for reconsideration of the Parole Board's decision on November 15,

2016, November 30, 2016, 3 and January 9, 2017. In February 2017, the

Parole Board denied Skinner's request for reconsideration, explaining that

"[t]he panel voted unanimously to grant parole ... after serious and

thorough consideration" and "[t]he board's policy provides for a

reconsideration review only in [limited] circumstances," none of which were

applicable in Galbraith's case. Skinner and McWilliams aired their

displeasure to the press, leading to negative reporting regarding Galbraith's

imminent parole.

In early April 2017, the Parole Board and the Department of Corrections

made final preparations for Galbraith's release. On April 10, 2017, Parole

Board member Mary Fuentes sent an email to Louisiana Governor John Bel

Edwards's Deputy Executive Counsel. Fuentes referred to a news story

about Galbraith's release that would air on April 13. Her concern was that

the story could impact criminal justice legislation that was desired by the

Governor. Two days later, a single Parole Board member, Sheryl Ranatza,

added electronic monitoring as a condition of Galbraith's parole. On April 20,

2017, the Parole Board received notice from Texas that the new condition of

parole was accepted, and Ranatza signed and issued a Certificate of Parole

with a release date of April 23, 2017.

On April 21, 2017, the Special Counsel of the Louisiana Governor's

Legislative Staff exchanged emails with a lobbyist from Top Drawer

Strategies, LLC. Both expressed concern about the negative media reports

about Galbraith's release and their potential impact on the success of the

pending criminal justice reform legislation. The referenced news report

included details about interviews with McWilliams, who stated her victim

notification letter was sent to the wrong mailing address, and with Skinner,

who claimed Galbraith was responsible for two other cold-case murders in

Vernon Parish.

On April 21, the same day as the email exchange we just discussed,

Galbraith's parole hearing docket record stated: "Rescind Pending Per Mary

F," /.e., Parole Board member Mary Fuentes. That day, one Parole Board

member, Jim Wise, filled in a "Parole Board Action Sheet" that rescinded

Galbraith's parole based on this reason: "Other [—] There may have been

tech[n]ical irregularity to victim notice."

Galbraith was not released. In a letter dated May 1, the Parole Board

officially notified him of the rescission and repeated the phrasing of the

Parole Board Action Sheet:

*800 This correspondence is to advise you that the Parole Board has

voted to rescind the parole granted at your original parole hearing.

This action was taken due to the following:

We have been advised that Other. There may have been technical

irregularities notifying the victim's family.

You will be scheduled for another hearing on 08/03/2017.

There is no evidence that the Parole Board took any action to rescind parole

beyond the one Parole Board member's signing the rescission form. The

Parole Board later issued a press release announcing the decision to rescind.

It explained that, even though McWilliams received notice of the November

2016 hearing and provided a statement for its consideration, the Parole

Board was rescheduling the parole hearing "because of the apparent

procedural error which occurred with the initial victim notification."4

In May 2017, Galbraith filed an administrative grievance, which was rejected

because the Parole Board's decision was discretionary and could not be

challenged. In June 2017, Galbraith's counsel sent a letter (1) contesting

the decision to rescind for failure to adhere to Parole Board policy, (2)

contesting the factual basis of the alleged technicality that occurred with the

victim notice, and (3) advising the Parole Board that neither of the two

permissible reasons for rescission of parole applied in his case. In July 2017,

Galbraith, through counsel, withdrew from parole consideration for the

reasons stated in his attorney's June letter.

On July 26, 2017, Galbraith's attorney filed a 42 U.S.C. § 1983 complaint in

the Middle District of Louisiana challenging the Parole Board's rescission of

his parole. Galbraith sought reinstatement of his parole and immediate

release from prison. A year and a half later, the Parole Board filed a motion

for summary judgment, arguing Galbraith's exclusive remedy to seek

release from custody was through a writ of habeas corpus.

Galbraith's attorney then filed a 28 U.S.C. § 2241 application on March 27,

2019, naming the prison's warden as the defendant. We will refer to the

defendant as the State because the warden was sued in his official capacity.

After concluding the two cases had common legal issues, the district court

stayed and administratively closed the Section 1983 proceedings pending

resolution of the Section 2241 application. In its answer to Galbraith's

Section 2241 application, the State argued Galbraith failed to exhaust his

available state court remedies, his application was time-barred, and his

claim lacked merit because the Parole Board's rescission did not infringe any

constitutionally protected liberty interest.

In a March 9, 2022, Report and Recommendation, the magistrate judge

determined:

(1) Galbraith was not required to exhaust his claims because Louisiana's

statutory scheme did not permit him to challenge the Parole Board's

rescission under these circumstances;

(2) It was not clear if Galbraith's Section 2241 application was subject to a

limitations period;

(3) Even if a one-year limitations period was applicable, Galbraith filed a

Section 1983 complaint within that *801 time period seeking habeas

corpus relief;

(4) Although Galbraith did not have a liberty interest in the granting of

parole, there was a state-created liberty interest at issue here because

the Parole Board regulations in effect at the time permitted rescission of

a parole grant only in two circumstances, neither of which was

applicable to Galbraith's situation;

(5) Galbraith was therefore entitled to notice and a meaningful

opportunity to be heard prior to rescission of his parole grant, but he

received neither; and

(6) A remand to the Parole Board to conduct a rescission hearing would be

futile because neither permissible basis for rescission was applicable.

The magistrate judge recommended granting Galbraith's habeas application

and ordering his release on parole within 30 days, subject to the original

conditions of his parole as granted on November 3, 2016. The State filed

objections. On March 28, 2022, the district court granted Galbraith's habeas

application "for the reasons set forth in the Magistrate Judge's Report." The

State filed a timely notice of appeal. We granted an unopposed motion to

stay the district court's judgment and release order pending appeal.

The State now argues that the district court erred in holding (1) Galbraith

was not required to exhaust state remedies, (2) Galbraith's application was

not time-barred, and (3) Galbraith had a protected liberty interest in his

parole grant prior to release.

DISCUSSION

"In a habeas corpus appeal, we review the district court's findings of

fact for clear error and its conclusions of law de novo." Reeder v. Vannoy,

978 F.3d 272, 276 (5th Cir. 2020) (quoting Jenkins v. Hall, 910 F.3d 828,

832 (5th Cir. 2018)).

We first review the district court's legal conclusion about the often-difficult

question of which statutory vehicle is proper for a prisoner's claim. Different

procedural hurdles apply depending on that answer. We then turn to the

State's three arguments about reversible error in the district court's rulings.

I. Habeas corpus application or civil rights suit?

Three possible statutory bases for Galbraith's claim have been proposed: a

civil rights suit under Section 1983, a habeas application under Section

2241, or a habeas application under Section 2254.

We start with Section 1983. A helpful precedent concerned a Section 1983

suit in which two state prisoners claimed that state authorities violated the

Ex Post Facto and Due Process Clauses of the United States Constitution.

See Wilkinson v. Dotson, 544 U.S. 74, 76-77, 125 S.Ct. 1242, 161 L.Ed.2d

253 (2005). The alleged violations occurred when officials applied new,

harsher guidelines to determine the parole of prisoners whose crimes had

been committed when less-demanding guidelines were used. Id. When

considered for parole under the more stringent guidelines, the two prisoners

were denied and deemed ineligible to seek parole again for five years. Id.

The prisoners then filed a Section 1983 suit and sought immediate parole

hearings under the prior guidelines. Id. at 77, 125 S.Ct. 1242. The Court

held that the constitutional claims were properly brought using Section

1983, and it rejected the argument that "the prisoners' lawsuits, in effect,

collaterally attack the duration of their confinement; hence, such a claim

may only be brought through a habeas corpus action." *802 Id. at 76, 78,

125 S.Ct. 1242. "A consideration of this Court's case law makes clear that

the connection between the constitutionality of the prisoners' parole

proceedings and release from confinement is too tenuous here to achieve

[the state's] legal door-closing objective." Id. at 78, 125 S.Ct. 1242.

2 Galbraith, though, is not seeking a new hearing. He insists that the

parole he was actually granted was improperly rescinded and should be

reinstated. He brings a direct and immediate claim about the duration of his

confinement, without the contingency that existed in Dotson that a new

hearing might not grant parole. Habeas is the proper procedure here.

We now examine the habeas application Galbraith eventually did file.

Galbraith filed for habeas under Section 2241. He argued his claim was ripe

for immediate de novo review by a federal court under Section 2254(b)

(l)(B)(i) because there is no Louisiana state corrective process to challenge

his parole rescission. The State asserted Galbraith's claims were time-barred

because the one-year statute of limitations established by Section

2244(d)(1) applied and he did not file within one year of May 1, 2017, when

he received notice of his parole rescission. The district court disagreed.

Quoting Pack v. Yusuff, 218 F.3d 448, 451 (5th Cir. 2000), the district court

held that Galbraith's challenge to the rescission of his parole was properly

brought under Section 2241 (which has no statute of limitations) because it

raised issues regarding "the manner in which a sentence [was] carried out."

The district court concluded Section 2244(d)(l)'s one-year statute of

limitations did not extend to Section 2241 habeas applications, meaning

Galbraith's application could not conclusively be deemed untimely. The court

further determined Galbraith sufficiently established his claim was-not

subject to Section 2254's exhaustion requirement. See 28 U.S.C. § 2254(b)

(l)(B)(i). According to the court, "[without a mechanism to exhaust, there

can be no failure to exhaust," allowing Galbraith's claim to be reviewed by a

federal court.

3 So, was Galbraith's application properly brought under Section 2241,

which contains no statute of limitations? Do Section 2254 and the applicable

one-year limitations period apply and bar Galbraith's claims? An explanation

of the interaction between the two statutes will be useful.

4 5 These "two statutes do not represent an either/or dichotomy."

Topletz v. Skinner, 7 F.4th 284, 293 (5th Cir. 2021). Section 2241 is the

general statute authorizing federal courts to grant writs of habeas corpus in

their respective jurisdictions. 28 U.S.C. § 2241(a). This authority "applies to

persons in custody regardless of whether [a] final judgment" exists.

Hartfield v. Osborne, 808 F.3d 1066, 1071 (5th Cir. 2015) (quoting

Dickerson v. Louisiana, 816 F.2d 220, 224 (5th Cir. 1987)); see also 28

U.S.C. § 2241(c). Once Congress enacted the Antiterrorism and Effective

Death Penalty Act of 1996 ("AEDPA"), federal courts' authority to grant

habeas relief became more limited. See Pub. L. No. 104-132, 110 Stat.

1214; Shoop v. Twyford, 596 U.S. 811, 818, 142 S.Ct. 2037, 213 L.Ed.2d

318 (2022). As part of AEDPA, Congress enacted Section 2254, which

governs writs to which Section 2241(c)(3) applies. Topietz, 7 F.4th at 293.

Importantly, Section "2254 is not an independent avenue through

which petitioners may pursue habeas relief." Hartfield, 808 F.3d at 1073.

"Instead, all habeas petitions ... are brought under [Section] 2241, and

[Section] 2254 places additional limits on a federal court's ability to grant

[habeas] relief if the petitioner is being *803 held in custody 'pursuant to

the judgment of a State court.' " Topletz, 7 F.4th at 294 (quoting 28 U.S.C.

§ 2254(a)). Galbraith is in custody because of a state court judgment; his

habeas application must be viewed under both Sections 2241 and 2254.

With Galbraith's habeas application being subject to both statutes, the

question remains whether it is also subject to a statute of limitations. The

Supreme Court explained that AEDPA "changed the standards governing our

consideration of habeas petitions by imposing new requirements for the

granting of relief to state prisoners." Felker v. Turpin, 518 U.S. 651, 662,

116 S.Ct. 2333, 135 L.Ed.2d 827 (1996). Because federal courts' habeas

authority is now limited by Section 2254, AEDPA's additional "new

requirements" for granting relief to state prisoners also apply to writs

governed by Section 2254. Id. These include Section 2244's limitations. See

AEDPA § 101, 110 Stat, at 1217. Among those limitations is that the habeas

application "by a person in custody pursuant to the judgment of a State

court" must be filed within one year of various events; relevant here is "the

date on which the factual predicate of the claim" was or could have been

discovered. 28 U.S.C. § 2244(d)(1)(D).

The district court concluded that, because Galbraith challenged the Parole

Board's refusal to hold a hearing prior to the rescission of his parole grant,

he is challenging "the manner in which [his] sentence is carried out or the

prison authorities' determination of its duration." Pack, 218 F.3d at 451.

Citing a pre-AEDPA, unpublished Fifth Circuit opinion, the district court

further determined that Section 2254 did not apply to Galbraith. See Richie

v. Scott, 70 F.3d 1269 (5th Cir. 1995) (unpublished table opinion that is

precedential under 5th Cir. R. 47.5.3). In Richie, we rejected the district

court's determination that the prisoner had to bring his claim under Section

2254, finding that a challenge to the revocation of parole should be brought

under Section 2241 only. Id. at *1 (citing Rome v. Kyle, 42 F.3d 640 (5th

Cir. 1994) (unpublished); Johnson v. Scott, 56 F.3d 1385 (5th Cir. 1995)

(unpublished)). We concluded that if the party is not contesting the legality

or validity of the sentence, Section 2254 is inapplicable. Id.

In a later decision, the court concluded that this precedent did not survive

AEDPA. Kimbrell v. Cockrell, 311 F.3d 361, 362 (5th Cir. 2002). The court

considered whether AEDPA's one-year limitation period applied to Section

2254 habeas applications "contesting the outcome of prison disciplinary

proceedings." Id. Tie held that "when prison disciplinary proceedings result

in a change in good-time earning status that extends the prisoner's release

date," Section 2254 applies. Id. The court refused to treat prison disciplinary

proceedings in such a distinct way as to give them "unusual procedural

recognition" that would render Section 2244(d)(l)'s one-year limitation

period inapplicable. Id. at 362-63. Instead, the court concluded that Section

2244(d)(1) "is ... easily applied" to applications "attacking the prisoner's

conviction" and also to those attacking "the calculation of time served." Id.

at 363. Both applications are seeking "a shorter confinement pursuant to

the original judgment," thus "any [Section] 2254 writ application by a

'person in custody pursuant to the judgment of a State court' " is limited by

Section 2244(d)(1). Id. In other words, when a favorable outcome would

affect the amount of time a state prisoner served, "Section 2244(d)(1)

literally applies." Id.

Galbraith's claim is based on the Parole Board's allegedly improper

rescission of his parole. He is requesting that it be reinstated and that he

immediately be released from prison. An outcome in Galbraith's *804 favor

would affect the time he will serve; indeed, it would end his confinement

almost instantly. Section 2244(d)(1) therefore applies.

II. Timeliness

Because we conclude Galbraith's claim is properly viewed under both

Sections 2241 and 2254 and is challenging the duration of time he will

serve, we now address the State's argument that the one-year limitations

period in Section 2244(d)(1) bars Galbraith's habeas application.

Under Section 2241(d)(1), the one-year period begins to run on one of

four dates. 28 U.S.C. § 2244(d)(l)(A)-(D). The latest date that could begin

this period for Galbraith's claim is "the date on which the factual predicate of

the claim or claims presented could have been discovered through the

exercise of due diligence." § 2244(d)(1)(D). The factual predicate that is

alleged to support Galbraith's claims is the Parole Board's rescission of "his

Certificate of Parole based upon facts the Board knew to be false and a

reason not enumerated in the [Louisiana] law that allows for rescission." We

must determine on what date Galbraith could have discovered this factual

premise.

Galbraith argues that he could not have discovered or verified the facts

underlying his claim until after he received complete discovery in his Section

1983 action. Therefore, Section 2244(d)(l)'s one-year statute of limitations

allegedly would not apply. Galbraith's parole file was confidential and unable

to be released to him except through discovery. See La. R.S. §

15:574.12(A); LA. ADMIN. CODE tit. 22, pt. I, § 101(K)(6)(c) (2023). Once

Galbraith received full disclosure of the file, he learned that the "technical

irregularit[ies]" the Parole Board cited as its reason for rescinding his parole

were false because the victim's family had been properly notified of his

parole hearing. Discovery was complete by June 13, 2018, and Galbraith

filed his habeas application based on these undisputed facts on March 27,

2019. Because Galbraith could not access his parole file except through

discovery, he argues he could not have uncovered the Parole Board's true

rationale until June 2018. He therefore exercised the required due diligence

and timely filed his application. Further, even if the one-year limitations

period applied, Galbraith filed his habeas application in March 2019, which

was within one year of receiving his parole file.

Galbraith's claim is premised on the fact that the Parole Board could only

rescind its decision to grant him parole if he "violated the terms of work

release" or "engaged in misconduct prior to [his] release." LA. ADMIN. CODE

tit. 22, pt. XI, § 504(K) (eff. Jan. 2015 to Aug. 2019). 5 In its notification to

Galbraith of its decision to rescind his parole, the Parole Board advised

Galbraith that"[t]here may have been technical irregularities notifying the

victim's *805 family" of his original parole hearing and explained that was

the reason for the rescission. The Parole Board clearly stated the grounds

for its decision, which was neither of the reasons authorized by the

Louisiana Administration Code. See id.

The May 1, 2017 letter notified Galbraith that the Parole Board had

rescinded his parole and informed him of its reason for doing so. Neither of

Section 504(K)'s reasons were listed in the letter, so Galbraith would have

known, upon receipt of the letter, of the argument that the rescission was

not statutorily authorized. The possibility that the Parole Board's actual

rationale was "false" and that evidence establishing falsity was in Galbraith's

parole file is irrelevant to his claim. Galbraith "is confusing his knowledge of

the factual predicate of his claim with the time permitted for gathering

evidence to support that claim." Flanagan v. Johnson, 154 F.3d 196, 199

(5th Cir. 1998). "Section 2244(d)(1)(D) does not convey a statutory right to

an extended delay ... while a habeas petitioner gathers every possible scrap

of evidence that might ... support his claim." Id.

For Galbraith to file for habeas relief, all that was required under Section

2244(d)(1)(D) was that he know the factual premise of the claim. Here, that

premise is the Parole Board's rescinding Galbraith's parole for a reason other

than that he "violated the terms of work release" or "engaged in misconduct

prior to [his] release." LA. ADMIN. CODE tit. 22, pt. XI, § 504(K) (eff. Jan.

2015 to Aug. 2019). Galbraith knew that premise upon receipt of the May 1,

2017 letter; thus, Section 2244(d)(l)'s one-year limitations period began to

run on that date. He therefore was required to file his habeas application by

May 2018. Galbraith filed his application on March 27, 2019, roughly 10

months after the one-year limitations period ended. Galbraith's habeas

application is thus time-barred absent tolling.

Galbraith argues, and the district court determined, that even if Galbraith's

habeas claim was subject to a one-year limitations period, it was tolled

when he filed his Section 1983 complaint on July 26, 2017, because that

complaint was a de facto habeas application. We need not decide this issue

because of our holding in the following section.

III. Exhaustion of state remedies

9 "An application for a writ of habeas corpus on behalf of a person in

custody pursuant to the judgment of a State court shall not be granted

unless it appears that—(A) the applicant has exhausted the remedies

available in the courts of the State." 28 U.S.C. § 2254(b)(1). On appeal, the

State repeats the arguments it made to the district court that Galbraith

could have raised his challenge in a state habeas corpus application and has

thus failed to exhaust his state court remedies. It relies heavily on Sinclair

v. Staider, 867 So. 2d 743 (La. Ct. App. 1st Cir. 2003), and Sneed v.

Hooper, 328 So. 3d 1164 (La. 2021). The district court rejected the

argument that Galbraith could have filed a state habeas application, because

it concluded Louisiana's statutory scheme does not permit a challenge to the

Parole Board's rescission on any ground except for the denial of a revocation

hearing. Because of the perceived lack of any available state corrective

process, the district court held there was no state mechanism for Galbraith

to exhaust, so his claim was reviewable in federal court under Section

2254(b)(l)(B)(i).

11 "Whether a federal habeas petitioner has exhausted state remedies

is a question of law reviewed de novo." Anderson v. Johnson, 338 F.3d 382,

386 (5th Cir. 2003). The "exhaustion requirement is not jurisdictional, but

’reflects a policy of federal-state comity ... designed *806 to give the State

an initial opportunity to pass upon and correct alleged violations of its

prisoners' federal rights.' " Id. (alteration in original) (quoting Wilder v.

Cockrell, 274 F.3d 255, 260 (5th Cir. 2001)).

An applicant has not exhausted his available remedies "if he has the right

under the law of the State to raise, by any available procedure, the question

presented." § 2254(c). The district court relied on the fact that "Louisiana's

parole statutes allow for appeal of parole board actions in only one

circumstance." See La. R.S. § 15:574.11. Even if that is so, exhaustion is

still required if there is some other state procedure available. The pertinent

language in the parole statute is this:

Parole is an administrative device for the rehabilitation of

prisoners under supervised freedom from actual restraint, and

the granting, conditions, or revocation of parole rest in the

discretion of the committee on parole. No prisoner or parolee

shall have a right of appeal from a decision of the committee

regarding release or deferment of release on parole, the

imposition or modification of authorized conditions of parole, the

termination or restoration of parole supervision or discharge

from parole before the end of the parole period, or the

revocation or reconsideration of revocation of parole, except for

the denial of a revocation hearing under R.S. 15:574.9.

La. R.S. § 15:574.11(A) (emphasis added).

Another relevant parole statute provides:

The committee may order revocation of parole upon a determination that:

(1) The parolee has failed, without a satisfactory excuse, to comply with a

condition of his parole; and

(2) The violation of condition involves the commission of another felony,

or misconduct including a substantial risk that the parolee will commit

another felony, or misconduct indicating that the parolee is unwilling to

comply with proper conditions of parole.

§ 15:574.9(B).

12 Based on this statutory language, a prisoner has no right to appeal a

decision by the Parole Board unless his parole was revoked under Revised

Statute 15:574.9 without a revocation hearing. See Leach v. La. Parole Bd.,

991 So. 2d 1120, 1124 (La. Ct. App. 1st Cir. 2008). This explains why

Galbraith's attempt at filing an administrative grievance to challenge the

Parole Board's decision was rejected. The stated reason was the Parole

Board's policy that "decisions of these boards are d[i]scretionary and may

not be challenged," which follows Louisiana's parole statutes.

13 14 Even so, we must consider whether there was any other available

state court remedy that Galbraith could have used. One possibility, seeking

a writ of habeas corpus, generally is "not the proper procedural device for

petitioners" in Louisiana seeking "post-conviction relief" because habeas

"deals with preconviction complaints concerning custody." State ex rel.

Bartie v. State, 501 So. 2d 260, 263 (La. Ct. App. 1st Cir. 1986). "An

application for post-conviction relief is a petition ... seeking to have the

conviction and sentence set aside." Id. (emphasis removed); see also LA.

CODE CRIM. PROC. art. 924. There are instances, however, when state

habeas does apply in a post-conviction setting in Louisiana when the

applicant is not seeking to set aside his original sentence. See Sinclair v.

Kennedy, 701 So. 2d 457, 460 (La. Ct. App. 1st Cir. 1997). Louisiana Code

of Criminal Procedure Article 362(2) governs these cases, and it states

habeas "relief shall be granted" if "[t]he original custody was lawful, but by

some act, omission, or event which has since occurred, the custody has

become unlawful." Id.

A Louisiana intermediate court held that a state habeas application "is the

proper *807 mechanism" when "an inmate ... claims his initially lawful

custody became unlawful due to the parole board's actions in denying him

release on parole." Sinclair v. Stalder, 867 So. 2d at 744. That is similar to

Galbraith's claim, though in Sinclair the prisoner's parole was denied while

here the parole, already granted, was rescinded. That opinion is the most

closely relevant authority cited to us. Although Galbraith is contesting the

duration of his sentence and seeking a shorter confinement, he is neither

challenging the validity of his original sentence nor seeking to have the

sentence set aside. Instead, he is asserting that a lawful sentence has now

become unlawful because the Parole Board had no authority to rescind his

Certificate of Parole and then deny him release.

Galbraith did not pursue habeas relief, and the State argues he has failed to

satisfy the need to exhaust state remedies before seeking relief in federal

court. Galbraith argues he did not need to begin in state court because

Sinclair v. Stalder held that even though state habeas is the proper

procedure for a claim such as this, no relief can be granted. That court said

"the fact that an action may be properly maintained as a petition for a writ

of habeas corpus does not end the inquiry into whether a cause of action

has been stated." Id. Because the parole statute provides only two bases to

contest a parole board decision, the court held, any "[p]leadings challenging

actions of the parole board other than [the two statutory reasons] should be

dismissed." Id. The opinion also explains that the inmate failed to state a

cause of action. As a result, Galbraith in essence is arguing that there were

no "remedies available in the courts of the State." § 2254 (b)(1).

At times this court, and other circuit courts, have discussed availability in

terms of futility. In one decision, we held that "exhaustion is not required if

it would plainly be futile." Morris v. Dretke, 413 F.3d 484, 492 (5th Cir.

2005). We found futility when the state's highest court had recently decided

the same legal issue adversely to the habeas applicant. Fisher v. Texas, 169

F.3d 295, 303 (5th Cir. 1999). Such a standard mirrors the level of clarity

sister circuits require. See BRIAN R. MEANS, FEDERAL HABEAS MANUAL §

9C:53 (collecting cases).

Regardless of whether "futility" is the best terminology, Galbraith has failed

to show there is no available state procedural remedy. We have already

identified one distinction with Sinclair, namely, that the inmate there was

denied parole — which the court said was entirely discretionary — while

Galbraith's parole was first granted but then rescinded before he was

released. Consequently, even if Sinclair expresses the manner in which all

Louisiana courts would resolve a similar case, we do not see that reasoning

to be clearly applicable here. In addition, Galbraith's one state intermediate

court opinion does not suffice. In Fisher, we held there was clarity about the

relevant state law because of a recent state supreme court opinion. No such

clarity exists here. Importantly, we agree with the observation by another

panel of this court that if the uncertainty concerns a matter of state

procedure and not the merits of an applicant's claims, even more respect is

potentially due to the requirement to exhaust. Berkley v. Quarterman, 310

F. App'x 665, 671-72 (5th Cir. 2009).

Because Galbraith is "claiming he is entitled to immediate release under

[Article] 362," he should have raised his challenge in a state habeas

application in the appropriate state district court. Madison v. Ward, 825 So.

2d 1245, 1254 (La. Ct. App. 1st Cir. 2002) (en banc), superseded by statute

on other grounds, Act No. 460, 2005 La. Acts 2174. Had he sought relief

*808 using Article 362(2), state courts would have resolved the legal issues

he now raises with us. Under AEDPA, Galbraith was required to give state

courts a chance before applying for federal habeas relief. Galbraith did not

exhaust his available state court remedies and therefore is not entitled to

federal habeas relief.

The petition for rehearing is GRANTED. The judgment of the district court is

REVERSED and RENDER judgment for Respondent Hooper.

James L. Dennis, Circuit Judge, dissenting:

The majority says Galbraith did not exhaust his state remedies because, at

least in theory, he could have filed a state habeas petition under Article

362(2) of the Louisiana Code of Criminal Procedure to challenge the Parole

Committee's decision to rescind his parole grant. But whether Louisiana law

permits such a challenge is an unresolved and contested question. The

Louisiana Supreme Court has never addressed the scope of the state district

courts' habeas jurisdiction in this precise context, and the state's

intermediate appellate courts have reached conflicting results. In the

absence of clear controlling authority, I would not undertake an Erie guess

to settle this open question of state law as the majority does—particularly

not in a way that forecloses federal habeas review. Moreover, even

assuming Louisiana courts might entertain such a petition under their

original jurisdiction, the district court below lacked the opportunity to

address whether pursuing that remedy would have been futile under the

circumstances of this case in the first instance. As an appellate court, we are

bound to review questions decided below, not to decide in the first instance

questions that were never passed upon.

I would therefore either certify the question to the Louisiana Supreme

Court, or, in the alternative, vacate the district court's judgment and

remand for consideration of the availability, adequacy, and futility of any

state corrective process in the first instance. Because the majority concludes

otherwise, I respectfully dissent.

* * *

The majority's exhaustion analysis turns on the interaction of Article 362(2)

of the Louisiana Code of’Criminal Procedure and Section 15:574.11(A) of

the Louisiana Revised Statutes. Article 362(2)—a general provision about

habeas corpus—provides a mechanism for relief to prisoners who file a writ

of habeas corpus in state court challenging an order of custody when the

original custody was lawful, but by some act, omission, or event which has

since occurred, the custody has become unlawful. Louisiana Revised Statute

§ 15:574.11(A)—a specific statute about the finality of parole committee

decisions—provides that "[p]arole ... rest[s] in the discretion of the

committee on parole." To that end:

No prisoner or parolee shall have a right of appeal from a

decision of the committee regarding release or deferment of

release on parole, the imposition or modification of authorized

conditions of parole, the termination or restoration of parole

supervision or discharge from parole before the end of the parole

period, or the revocation or reconsideration of revocation of

parole.

Id. Section 15:574.11(A) carves out one exception: a prisoner or parolee

does have a right to appeal the parole committee's "denial of a revocation

hearing under R.S. 15:574.9.7,1 It is undisputed that this exception is

inapplicable here.

*809 An "appeal" under § 15:574.11(A) refers to the state district court's

"review of an administrative tribunal's action" and "is considered functionally

to be an exercise of its appellate review jurisdiction." Madison v. Ward,

2000-2842 (La. App. 1 Cir. 7/3/02), 825 So. 2d 1245, 1250 n.7 (en banc)

(citing Loop, Inc. v. Collector of Revenue, 523 So. 2d 201, 203 (La. 1987)),

superseded by statute on other grounds, 2005 La. Acts, No. 460, § 1. The

Louisiana Constitution confines the state district courts' exercise of appellate

jurisdiction to that which is specifically authorized by statute. LA. CONST.

ANN. art. V, § 16(B); Loop, Inc., 523 So. 2d at 203. As such, "[a] litigant

seeking judicial review of administrative action in a district court must

establish that there is a statute which gives subject matter jurisdiction to

that court." Loop, Inc., 523 So. 2d at 203. And where the governing statute

prescribes a particular procedure for obtaining judicial review, that

procedure must be followed; jurisdiction cannot be invoked "unless there

can be found within the act a genuine legislative intent to authorize judicial

review by other means." Id. (citing Corbello v. Sutton, 446 So. 2d 301, 302

(La. 1984)). Section 15:574.11(A) expressly limits appellate jurisdiction

over decisions of the parole committee to those arising from the denial of a

revocation hearing under LA. R.S. § 15:574.9. This suggests that state

district courts lack subject matter jurisdiction to consider any challenge to

parole committee decisions other than those concerning the "denial of a

revocation hearing under R.S. 15:574.9." LA. R.S. § 15:574.11(A); see also

Madison, 825 So. 2d at 1250 n.7.

The district court below concluded that Galbraith could not obtain redress in

state court because § 15:574.11(A) "effectively deprived [Galbraith] of a

procedure to challenge the actions of the Parole [Committee] in rescinding

his parole."The majority agrees that § 15:574.11(A) bars appellate review

of parole committee decisions but nevertheless holds that Galbraith could

have pursued his claim through a state habeas petition under Article 362(2).

Ante, at 806-07. This conclusion necessarily assumes that state district

courts possess original jurisdiction to hear habeas petitions challenging any

parole committee decision. Yet, the Louisiana Supreme Court has never

resolved this jurisdictional question and, contrary to the majority's analysis,

state intermediate appellate courts are divided on whether Article 362(2)

provides a viable means of relief in this context.

The majority's holding turns on one line of cases that permits state habeas

petitions challenging parole committee decisions but dismiss those failing to

allege the denial of a revocation hearing under § 15:574.9 (again, the sole

exception to § 15:574.ll(A)'s general prohibition) as failing to state a cause

of action. Ante, at 805-07. For example, in Sinclair v. Kennedy, 96-1510

(La. App. 1st Cir. 9/19/97), 701 So. 2d 457, 461-62, the Louisiana First

Circuit Court of Appeal considered a prisoner's habeas petition claiming he

was wrongfully denied parole despite satisfying all eligibility criteria and,

thus, was entitled to immediate release. Because the prisoner did not

contest the validity of his underlying conviction or sentence, but instead

”claim[ed] his initially lawful custody became unlawful due to the parole

[committee]'s actions in denying him release on parole," habeas was an

available remedy. Id. at 462. Nevertheless, Kennedy ruled that the prisoner

failed to state a cause of action allowing for habeas relief because *810

merely qualifying for parole did not entitle him to immediate release. 2 Id.

Later, in Sinclair v. Stalder, 2003-1568 (La. App. 1 Cir. 10/17/03), 867 So.

2d 743, the First Circuit again considered a prisoner's habeas petition

seeking review of the parole committee's decision denying him parole. Citing

Kennedy, the court agreed that a habeas petition "is the proper mechanism

for an inmate who claims his initially lawful custody became unlawful due to

the parole [committee]'s actions in denying him release on parole." Id. at

744. However, the court ruled that the prisoner's petition failed to state a

cause of action because the "parole statutes do not create an expectancy of

release or liberty interest." Id. (citing Bosworth v. Whitley, 627 So.2d 629,

633 (La. 1993)). 3

A more recent line of cases, however, suggest the specific limitations of §

15:574.11(A) broadly prohibits state district courts from considering any

challenge to a parole committee decision—via habeas or otherwise—unless

the prisoner or parolee alleges they were denied a revocation hearing under

§ 15:574.9. In other words, § 15:574.11(A) is a specific statutory exception

to general state habeas relief. Beginning with Madison v. Ward, 825 So. 2d

at 1250 n.7, the Louisiana First Circuit Court of Appeal sitting en banc

revisited its approach to reviewing parole decisions in light of a growing

number of prior First Circuit rulings that had permitted post-conviction

habeas relief in such cases. The court explained that Louisiana

"jurisprudence has not satisfactorily addressed the appropriate procedure

for challenges to actions of the Board of Parole." Id. The threshold question

Madison considered was what parole committee actions may be challenged:

We find the clear meaning of La. R.S. 15:574.11(A) is that there shall be

no appeal of decisions of the [committee] unless the procedural due

process protections specifically afforded by the hearing provisions of La.

R.S. 15:574.9 are violated. See Smith v. Dunn, 263 La. 599, 268 So.2d

670, 671 (1972). Thus, for example, challenges to the [committee]'s

denial of parole, revocation of parole, refusal to consider an inmate for

parole, or imposition of parole conditions would not be subject to appeal.

This statement is consistent with Bosworth v. Whitley, 627 So.2d 629, 633

(La. 1993), which cites United States Supreme Court decisions holding

that the existence of a parole system does not by itself give rise to a

constitutionally protected liberty interest and that laws or regulations

providing that a parole [committee] "may" release an inmate on parole

have not been found to give rise to that interest; Bosworth goes on to say

that "the Parole [Committee] has full discretion *811 when passing on

applications for early release." Bosworth, 627 So.2d at 633.

Id. It follows, Madison observed, that "[o]nly where it is alleged that the

hearing provisions of La. R.S. 15:574.9 were violated is appeal allowed." Id.

Madison then turned to the question of "how such appeal is to be

accomplished" under § 15:574.11. Id. (emphasis added). For example, it

reaffirmed that parole decisions are not subject to review under the

Louisiana Administrative Procedure Act. Id. (citing Smith v. Dunn, 263 La.

599, 268 So. 2d 670, 671-72 (1972) (”[T]he special provisions in Title 15

creating the Board of Parole and setting out its powers and duties are not

complementary or supplementary to the general administrative rules of

procedure.")). The court then sharply limited the scope of all other possible

procedural avenues, holding that "pleadings challenging actions of the

parole [committee] other than failure to act in accordance with La. R.S.

15:574.9, whether styled as writs of habeas corpus or captioned in some

other fashion, should be dismissed by the district court." Id. (emphasis

added). By contrast, only "[p]leadings alleging a denial of a revocation

hearing under La. R.S. 15:574.9, however styled," were to be "reviewed on

the merits by the district court." Id. In adopting this restrictive procedural

rule, the Madison court abrogated all prior First Circuit jurisprudence

"considering challenges to parole [committee] actions in a manner other

than that outlined" in its opinion, noting that such decisions "are without

precedential effect to the extent [they are] inconsistent with the procedure

we adopt today." Id. This broad repudiation of earlier authority reasonably

extends to the portions of Kennedy, 701 So. 2d at 462, upon which Stalder,

867 So. 2d at 744, and now the majority relies upon to support the

availability of state habeas review. In substance, Madison's procedural

holding did not merely define the method of review—it functionally

eliminated state habeas petitions as a viable remedy for challenging parole

committee actions outside the narrow confines of § 15:574.9.

More recent, albeit unpublished, decisions from the Louisiana First Circuit

Court of Appeal reflect a consistent trend of dismissing state habeas

petitions that challenge parole committee decisions unrelated to the denial

of a revocation hearing, citing a lack of jurisdiction. In Boston v. Jones,

2009-1778 (La. App. 1 Cir. 6/4/10), 2010 WL 2844344, the court rejected a

habeas petition filed by a parolee alleging procedural violations during the

revocation process. The court explained that "[t]o properly assert [a] right

of review of the [committee]'s decision, a parolee is required to file a

petition for judicial review in a district court, alleging that his right to a

revocation hearing was denied ...." Id. at *1 (citing Leach v. La. Parole Bd.,

2007-0848 (La. App. 1 Cir. 6/6/08), 991 So. 2d 1120). Because the parolee

had instead filed a habeas petition claiming his confinement was unlawful,

the court was "unable to consider the propriety of the [committee]'s

decision or the validity of the inmate's waiver of the final parole revocation

hearing."4 Id. Similarly, in Gatson v. La. Dep't of Pub. Safety & Corr.,

2014-1127 (La. App. 1 Cir. 3/6/15), 2015 WL 997222, the court dismissed a

habeas petition challenging the revocation of parole where the petitioner

conceded that a revocation hearing had been held. Because the claim did

*812 not concern the denial of a hearing, the court held it "was not

properly a claim for habeas corpus relief under Article 362," and affirmed

the district court's conclusion that it "lacked subject matter jurisdiction over

appellant's challenge of the Parole [Committee]'s decision to revoke his

parole." Id. at *2-3. These cases cast further doubt on the viability of state

habeas petitions as an accepted means of challenging parole committee

decisions under Kennedy, 701 So. 2d at 462 and Stalder, 867 So. 2d at 744.

At most, then, Louisiana intermediate appellate courts offer uncertain and

inconsistent support for the majority's conclusion that Galbraith could have

pursued his challenge through a state habeas petition. And the Louisiana

Supreme Court has not weighed in at all. True enough, Galbraith's claim

tracks the language of Article 362(2) in a general sense: he alleges his

"original custody was lawful" but contends that the parole committee's

subsequent "act" of rescinding his parole rendered his continued

confinement "unlawful." LA. CODE CRIM. PRO. art. 362(2); Kennedy, 701

So. 2d at 462; Stalder, 867 So. 2d at 744. But a growing body of Louisiana

caselaw casts serious doubt on whether state district courts may entertain

habeas petitions (or any other pleadings) challenging parole committee

decisions outside the narrow confines of La. R.S. 15:574.9 under either their

original or appellate jurisdiction. See, e.g., Madison, 825 So. 2d at 1250

n.7; accord Leach, 991 So. 2d at 1125; Gatson, 2015 WL 997222 at *2-3.

To speak authoritatively on the availability of a state habeas remedy here

would be, at best, a jurisprudential gamble. Compare Galbraith v. Hooper,

85 F.4th 273, 284 (5th Cir. 2023) (finding no available state habeas remedy

because Galbraith's claim did not fall within the jurisdictional bounds of §

15:574.11), op. withdrawn, No. 22-30159, 2024 WL 1170026 (5th Cir. Mar.

19, 2024), with ante, at 807-08 (holding that Galbraith could have brought

his claim in a state habeas application).

Even more troubling, the majority makes its Erie guess without the benefit

of a considered judgment from the district court. The district court did not

analyze whether Louisiana state district courts possess original jurisdiction

to hear a habeas petition under Article 362 in this context. And

understandably so: neither party raised it below, nor has either

meaningfully briefed it on appeal. "[Mjindful that we are a court of review,

not of first view," judicial humility cautions against "seek[ing] out

alternative grounds" to deny relief—especially where those grounds were

neither addressed by the district court nor developed by the parties. Rutila

v. Dep't of Transp., 12 F.4th 509, 511 n.3 (5th Cir. 2021) (quoting Cutter v.

Wilkinson, 544 U.S. 709, 718 n.7, 125 S.Ct. 2113, 161 L.Ed.2d 1020

(2005)). ”[R]ather than decide these heady questions ourselves without the

benefit of any considered judgment below," our well-established practice is

to vacate and remand to allow the district court to consider the issue in the

first instance. See, e.g., Braidwood Mgmt., Inc. v. Becerra, 104 F.4th 930,

957 (5th Cir. 2024); Arnesen v. Raimondo, 115 F.4th 410, 414 (5th Cir.

2024); Montano v. Texas, 867 F.3d 540, 546 (5th Cir. 2017).

The majority nevertheless forges ahead with a significant departure from

our prior opinion's exhaustion analysis—despite the serious due process

violation we recognized there—without the benefit of a district court ruling

and relying on nothing more than an Erie guess. Instead of guessing, I

would either certify the question to the Louisiana Supreme Court or, in the

alternative, remand for our capable district court colleague to weigh in

first. 5

*813 Because the majority provides no answer to the concerns I have

raised, I respectfully dissent.

All Citations

151 F.4th 795

| Footnotes

Galbraith's Application for Parole is undated, but other documents

in the application reflect dates of early-to-mid 2016.

The statute was amended in March 2018 to require 90-days'

notice and to require notice to any person who has filed a victim

notice and registration form. See LA. ADMIN. CODE tit. 22, pt. XI,

§ 510(B) (eff. Mar. 2018 to Dec. 2018). Victim notification errors

were not a permissible basis, at least explicitly, for rescission of

parole until the code was amended in August 2019. Compare LA.

ADMIN. CODE tit. 22, pt. XI, § 504(K) (eff. Jan. 2015 to Aug.

2019), with LA. ADMIN. CODE tit. 22, pt. XI, § 504(K) (eff. Aug.

2019 to Jan. 2020).

In one of the November 30 letters, Skinner attached a report by

retired chief detective, Martin Hilton, who relayed his opinion that

Galbraith may be responsible for two cold-case murders in Vernon

Parish. Galbraith was never charged with either of these murders,

and there is no evidence in the record connecting him to the two

victims.

As we have already explained, the Parole Board was required to

provide 30 days' notice of the hearing, and timely notice was

given for the November 2016 hearing. There is no suggestion or

record that McWilliams requested notification, and she was not

required to be notified under the statute in effect at the time. See

supra n.2.

Galbraith's argument relies on a prior version of Louisiana's

Administration Code that was effective until August 2019. See LA.

ADMIN. CODE tit. 22, pt. XI, § 504(K) (eff. Jan. 2015 to Aug.

2019) . The relevant section has been amended five times since

Galbraith's proceedings began. See La. Admin. Code tit. 22, pt.

XI, § 504 (historical notes). Under the prior version, the Parole

Board did not have explicit statutory authority to rescind

Galbraith's parole grant for errors regarding victim notification. At

the time, the only permissible bases for rescission were (1)

violation of the terms of work release, and (2) misconduct prior to

release, and upon rescission, the parolee would promptly receive

a new parole hearing. LA. ADMIN. CODE tit. 22, pt. XI § 504(K)

(eff. Jan. 2015 to Aug. 2019). Victim notification errors were not a

permissible basis for parole rescission until August 2019. LA.

ADMIN. CODE tit. 22, pt. XI, § 504(K)(2) (eff. Aug. 2019 to Jan.

2020) . We will use the law that was in effect at the time of

Galbraith's filings.

Section 15:574.9(A) entitles a parolee, upon his return to the

custody of the Department of Public Safety and Corrections, to a

hearing before the parole committee "to determine whether his

parole should be revoked, unless said hearing is expressly waived

in writing by the parolee." Section 15:574.9(B)-(H) sets forth,

inter alia, the hearing procedure and the standard by which the

parole committee may revoke parole.

Kennedy's holding relied heavily on State ex rel. Bartie v. State,

501 So. 2d 260 (La. Ct. App. 1986), a case involving a prisoner's

habeas claim that the Louisiana Department of Public Safety and

Corrections had miscalculated his time served and that, upon

proper calculation, he was entitled to immediate release. Bartie

found that such an action should be categorized as a post

conviction habeas corpus action because the prisoner did not

"contest the validity of his conviction or sentence[.]" Id. at 263.

Critically, Bartie did not squarely address whether habeas relief

was available when challenging a decision of the parole

committee. See Madison, 825 So. 2d 1245, 1250 n.7.

Stalder seemed to observe the tension between § 15:574.11(A)

and Article 362(2) but made no effort to resolve it. Because the

petitioner sought review of a parole committee decision beyond

the scope of § 15:574.9, the court found "no statutory basis for

[the petitioner] to seek review" of that decision. Id. Despite this,

the court evaluated the merits of the habeas petition by applying

Kennedy's reasoning that a habeas petition is permissible to

challenge the parole committee's actions in denying release on

parole. Id.

Like Boston, some First Circuit decisions have suggested that a

petition for judicial review is the exclusive avenue to challenge

parole committee decisions. See, e.g., Moore v. La. Parole Bd.,

2022-1278 (La. App. 1 Cir. 6/2/23), 369 So. 3d 415, 418 (citation

omitted); Williams v. La. Dep't of Pub. Safety & Corr., 2023-1235

(La. App. 1 Cir. 6/27/24), 2024 WL 3198974 at *2-3.

I do not view the majority opinion to conclude that Galbraith's

petition was untimely because it acknowledges but does not

resolve the district court's timeliness ruling. Ante, at------- ("We

need not decide this issue because of our holding in the following

section."). Lest there be any doubt, I would find Galbraith's

petition timely for the reasons stated by the district court.

End of

Document

Thomson Reuters

APPENDIX

WESTLAW

Galbraith v. Hooper

United Stales Court of Appeals, Fifth Circuit, OFFICE OF THE CLERK.

March 19, 2024

Not Reported in Fed. Fplr. . 2024 WL 1170026 (Appmx 1 page)

2024 WL 1170026

Only the Westlaw citation is currently available.

United States Court of Appeals, Fifth Circuit,

OFFICE OF THE CLERK.

Galbraith

Hooper

No. 22-30159

Filed: 03/19/2024

USDCNo. 3:19-CV-181

Opinion

*1 LYLE W. CAYCE CLERK

TEL. 504-310-7700

600 S. MAESTRI PLACE,

Suite 115

NEW ORLEANS, LA 70130

MEMORANDUM TO COUNSEL OR PARTIES LISTED BELOW:

The court has taken the following action in this case:

The published opinion filed on October 23, 2023, is hereby WITHDRAWN. A new opinion

will be substituted at a later date.

Sincerely,

LYLE W. CAYCE, Clerk

By:

Whitney M. Jell, Deputy Clerk

504-310-7772

Mr. John Taylor Gray

Mr. Michael L. McConnell

Mr. Nicholas Joseph Trenticosla

Mr. Christopher Neal Walters

Mr. Grant Lloyd Willis

All Citations

Not Reported in Fed. Rptr., 2024 WL 1170026

End of

Document

THOMSON REUTERS

Thomson Reuters is'-fwt’providing legal advice

APPENDIX C

WESTLAW

M Galbraith v. Hooper

United States Court of Appeals, Fifth Circuit.October 23, 202385 F.4th 273 (Approx. 17 pages)

pi On Rehearing Galbraith v. Hooper,

5th Cir.(La.), | August 20, 2025

85 F.4th 273

United States Court of Appeals, Fifth Circuit.

Samuel GALBRAITH, Petitioner—Appellee,

Tim HOOPER, Warden, Louisiana State Penitentiary, Respondent

—Appellant.

No. 22-30159

FILED October 23, 2023

Synopsis

Background: State prisoner filed petition for writ of habeas corpus seeking

to have his parole reinstated on ground that its rescission just prior to its

effective date violated his due process rights. The United States District

Court for the Middle District of Louisiana, John W. deGravelles, J., 2022 WL

907142, adopted report and recommendation of Erin Wilder-Doomes, United

States Magistrate Judge, 2022 WL 943144, and granted petition, and Board

appealed.

Holdings: The Court of Appeals, Southwick, Circuit Judge, held that:

1 prisoner's challenge to revocation of his parole was properly brought as §

2241 habeas petition;

2 prisoner was not required to exhaust his state remedies before seeking

federal habeas relief; and

3 parole board violated prisoner's procedural due process rights when it

rescinded his parole because of alleged problem with notice to victim.

Affirmed.

Appellate ReviewPost-Conviction Review

West Headnotes (12)

Change View

Habeas Corpus

Review de novo

Habeas Corpus

Clear error

In habeas corpus appeal, Court of Appeals reviews district court's

findings of fact for clear error and its conclusions of law de novo.

Habeas Corpus

Purpose and Use of Writ

Habeas Corpus

Other objectives; damages, etc

When state prisoners contest their custody and seek to obtain

release, appropriate procedure is to file § 2254 habeas application,

but if prisoner instead is contesting execution of his sentence, §

2241 is relevant statute. 28 U.S.C.A. §§ 2241, 2254.

Habeas Corpus €=» Revocation

State prisoner's challenge to revocation of his parole was properly

brought as habeas petition under § 2241, rather than as § 1983

action or § 2254 habeas petition. 28 U.S.C.A. §§ 2241, 2254; 42

U.S.C.A. § 1983.

5 Cases that cite this headnote

Habeas Corpus €= Review de novo

Whether federal habeas petitioner has exhausted state remedies is

question of law reviewed de novo. 28 U.S.C.A. § 2241.

Habeas Corpus

Comity or jurisdiction

Requirement that federal habeas petitioner exhaust state remedies

is not jurisdictional, but reflects policy of federal-state comity

designed to give state initial opportunity to pass upon and correct

alleged violations of its prisoners' federal rights. 28 U.S.C.A. §

2241.

Habeas Corpus

Remedies

Availability and Effectiveness of State

For purposes of federal habeas statute's exhaustion requirement,

prisoner's state remedy must be adequate and available. 28

U.S.C.A. § 2254(b).

Habeas Corpus €?= Availability and Effectiveness of State

Remedies

Louisiana prisoner did not have adequate and available state

remedy or corrective process that would have allowed him to assert

in state court claim that state parole board's rescission of his parole

two days before his release date violated due process, and thus

prisoner was not required to exhaust his state remedies before

seeking federal habeas relief; Louisiana's parole statutes did not

allow for appeal of parole board actions except for denial of

revocation hearing, prisoner's administrative grievance was rejected

on ground that Board's decisions "are d[i]scretionary and may not

be challenged," and passage of release date was necessary event

for invoking state court jurisdiction. U.S. Const. Amend. 14; 28

U.S.C.A. §§ 2241, 2254(b); La. Rev. Stat. Ann. § 15:574.11(A).

2 Cases that cite this headnote

Constitutional Law

Involved in General

Rights, Interests, Benefits, or Privileges

Those seeking to invoke Fourteenth Amendment's procedural

protection must establish that life, liberty, or property is at stake.

U.S. Const. Amend. 14.

Constitutional Law

Liberties and liberty interests

Liberty interest protected by Due Process Clause may arise from

Constitution itself, by reason of guarantees implicit in word

"liberty," or it may arise from expectation or interest created by

state laws or policies. U.S. Const. Amend. 14.

10 Constitutional Law

Arbitrariness

Purpose of due process protection is to shield person against

arbitrary action of government. U.S. Const. Amend. 14.

11 Constitutional Law

Parole

Pardon and Parole

Parole as right or privilege

There is no constitutional or inherent right to parole, but once state

grants prisoner conditional liberty properly dependent on

observance of special parole restrictions, due process protections

attach to decision to revoke parole. U.S. Const. Amend. 14.

12 Constitutional Law €=» Parole

Pardon and Parole O33 Grounds for Revocation; Defenses

Pardon and Parole

Procedure for Revocation

Louisiana law created liberty interest protecting prisoner from

rescission of his parole once granted for any reason other than for

violation of terms of work release or for misconduct, even though

Louisiana's parole statutes did not create liberty interest in granting

of parole, and thus Louisiana parole board violated prisoner's

procedural due process rights when it rescinded his parole because

of alleged problem with notice to victim. U.S. Const. Amend. 14; La.

Rev. Stat. Ann. § 15:574.11(A); La. Admin. Code tit. 22, pt. XI, §

504(K).

2 Cases that cite this headnote

*275 Appeal from the United States District Court for the Middle District of

Louisiana, USDC No. 3:19-CV-181, John W. deGravelles, U.S. District Judge

Attorneys and Law Firms

Nicholas Joseph Trenticosta, Esq., Attorney (argued), Herrero & Trenticosta,

New Orleans, LA, for Petitioner-Appellee.

Christopher Neal Walters, Assistant Attorney General, Louisiana Department

of Justice, Baton Rouge, LA, Grant Lloyd Willis, Assistant Attorney General

(argued), Louisiana Department of Justice, Litigation Division, Baton Rouge,

LA, for Respondent-Appellant.

Before Stewart, Dennis, and Southwick, Circuit Judges.

Opinion

Leslie H. Southwick, Circuit Judge:

Samuel Galbraith, a Louisiana prisoner, sued the Louisiana Board of Pardons

and Parole ("Parole Board"), seeking to have his parole reinstated on the

grounds that its rescission just prior to its effective date violated his due

process rights. The district court agreed with Galbraith and ordered his

release on parole within 30 days, subject to the original conditions of his

parole. On appeal, the Parole Board's arguments include that there is no

constitutionally protected liberty interest in parole. Based on Louisiana's

parole statutes, we hold that, on the facts of this case, a liberty interest did

arise. We AFFIRM.

FACTUAL AND PROCEDURAL BACKGROUND

In February 2000, Samuel K. Galbraith pled guilty to the manslaughter and

attempted aggravated rape of Karen Hill in November 1988. He was

sentenced to 71 years at hard labor. In November 2000, James Hill, who is

the victim's surviving husband, completed a "Louisiana Department of Public

Safety and Corrections Victim/Witness Notification Request Form." The form

required the Parole Board to notify the named person when a parole hearing

was granted for a specified inmate. The record does not contain a similar

form from anyone else that requested notice regarding Galbraith's potential

parole.

In the spring of 2016,1 Galbraith filed an Application for Parole. His first

possible parole eligibility date was April 23, 2017. The Parole Board set

Galbraith's hearing for October 13, 2016, and sent notification *276 letters

on July 7, 2016, to Hill and Jessie McWilliams, Karen Hill's mother, advising

them of their right to appear and present testimony at the parole hearing.

McWilliams's letter was erroneously addressed to a post office box in

Albany, New York, instead of to the same-numbered post office box in

Albany, Illinois. On September 14, 2016, Galbraith's attorney requested a

continuance of the October hearing until November 3, 2016, which was

granted. The Parole Board sent notification letters to Hill and McWilliams on

September 28, 2016, this time to their correct addresses, reflecting the new

November hearing date. At this time, the Louisiana Administrative Code

required notification 30 days prior to the parole hearing to be sent to "[t]he

victim, spouse, or next of kin of a deceased victim." LA. ADMIN. CODE, tit.

22, Pt XI, § 510(B) (eff. Aug. 2013 to Mar. 2018). 2 Thus, the Parole Board

was required to give notice only to Hill as the surviving husband. The Parole

Board did so.

A pre-parole investigation report was prepared. The report contained

statements from Hill, McWilliams, the Vernon Parish District Attorney's

Office, the Vernon Parish Sheriff's Office, and the Vernon Parish sentencing

judge. They all opposed parole. At Galbraith's parole hearing, a threemember panel of the Parole Board heard testimony or statements from

those opposed to his early release. That Board also heard from Galbraith's

family members, who supported his parole. Galbraith was represented by

counsel at the hearing. The Parole Board panel unanimously voted to grant

parole to Galbraith with a scheduled release date of April 23, 2017, and with

a list of specific conditions during his parole term. The Certificate of Parole

showed that Galbraith would reside in Aransas Pass, Texas, and would be

subject to the authority of a parole office in Corpus Christi, Texas.

Neither Hill nor McWilliams attended the hearing, but each provided a

written statement or testimony. Both were contacted directly by someone

from the Department of Corrections after the hearing and were notified of

the decision.

After parole was granted, Vernon Parish District Attorney Asa Skinner filed a

request for reconsideration of the parole board's decision. He sent request

letters on November 15, 2016, November 30, 2016, 3 and January 9, 2017.

In February 2017, the Parole Board denied Skinner's request for

reconsideration, explaining that "[t]he panel voted unanimously to grant

parole ... after serious and thorough consideration" and "[t]he board's policy

provides for a reconsideration review only in [limited] circumstances," none

of which were applicable in Galbraith's case. Skinner and McWilliams aired

their displeasure to the press, leading to negative reports that appeared in

the news regarding Galbraith's imminent parole.

In early April 2017, the Parole Board and the Department of Corrections

made final preparations for Galbraith's release. *277 On April 10, 2017,

Parole Board member Mary Fuentes sent an email to the Deputy Executive

Counsel to Louisiana Governor John Bel Edwards. She referred to a news

story regarding Galbraith's release that would air on April 13. Her concern

was that the story could impact criminal justice legislation that was desired

by the governor. Two days later, a single Parole Board member, Sheryl

Ranatza, added electronic monitoring as a condition of Galbraith's parole.

On April 20, 2017, the Parole Board received notice from Texas that the new

condition of parole was accepted, and Ranatza signed and issued a

Certificate of Parole with a release date of April 23, 2017.

On April 21, 2017, an email exchange occurred between Special Counsel of

the Louisiana Governor's Legislative Staff and a lobbyist with Top Drawer

Strategies, LLC. Both expressed concern about the negative media reports

regarding Galbraith's release and potential impact on the success of the

pending criminal justice reform legislation. The news report referenced in

that email exchange included details about interviews with McWilliams, who

stated her victim notification letter was sent to the wrong mailing address,

and with Skinner, who claimed Galbraith was responsible for two other cold

case murders in Vernon Parish.

On April 21, the same day as this email exchange, Galbraith's parole

hearing docket record stated: "Rescind Pending Per Mary F," i.e., board

member Mary Fuentes. That day, a single Parole Board member, Jim Wise,

filled in a "Parole Board Action Sheet" that rescinded Galbraith's parole

based on this reason: "Other [-] There may have been tech[n]ical

irregularity to victim notice."

Galbraith was not released. In a letter dated May 1, the Parole Board

officially notified him of the rescission, awkwardly repeating the phrasing of

the Parole Board Action Sheet:

This correspondence is to advise you that the Parole Board has voted to

rescind the parole granted at your original parole hearing.

This action was taken due to the following:

We have been advised that Other.

There may have been technical irregularities notifying the victim's family.

You will be scheduled for another hearing on 08/03/2017.

There is no evidence that the Parole Board took any action to rescind parole

beyond the single board member's signature on the rescission form. The

Parole Board later issued a press release announcing the decision to rescind.

It explained that, even though McWilliams received notice of the November

hearing and provided a statement for its consideration, the Board was

rescheduling the parole hearing "because of the apparent procedural error

which occurred with the initial victim notification."4

In May 2017, Galbraith filed an administrative grievance, which was rejected

on the ground that the Parole Board's decision was discretionary and could

not be challenged. In June 2017, Galbraith's counsel sent a letter (1)

contesting the decision to rescind for failure to adhere to Parole Board

policy, (2) contesting the factual basis of the alleged technicality that

occurred with the victim notice, and (3) advising the *278 Parole Board

that neither of the two permissible reasons for rescission of parole applied in

his case. In July 2017, Galbraith, through counsel, withdrew from parole

consideration for the reasons stated in his attorney's June letter.

On July 26, 2017, counsel for Galbraith filed a 42 U.S.C. § 1983 complaint in

the Middle District of Louisiana challenging the Parole Board's rescission of

his parole. He sought reinstatement of his parole and immediate release

from prison. A year and a half later, the Parole Board filed a motion for

summary judgment in which it argued Galbraith's exclusive remedy to seek

release from custody was through a writ of habeas corpus.

On March 27, 2019, counsel for Galbraith filed a 28 U.S.C. § 2241

application, naming the warden of the prison as the defendant. We will refer

to the defendant as the State since the warden was sued in his official

capacity. Stating that it was due to the common legal issues, the district

court stayed and administratively closed the Section 1983 proceedings

pending resolution of the Section 2241 application. In its answer to

Galbraith's Section 2241 application, the State argued Galbraith failed to

exhaust his available state court remedies, his application was time-barred,

and his claim lacked merit because the Parole Board's rescission did not

infringe any constitutionally protected liberty interest.

In a March 9, 2022, Report and Recommendation, the magistrate judge

determined:

(1) Galbraith was not required to exhaust his claims because Louisiana's

statutory scheme did not permit him to challenge the Parole Board's

rescission under these circumstances;

(2) It was not clear if Galbraith's Section 2241 petition was subject to a

limitations period;

(3) Even if a one-year limitations period was applicable, Galbraith filed a

Section 1983 complaint within that time period seeking habeas corpus

relief;

(4) Although Galbraith did not have a liberty interest in the granting of

parole, there was a state-created liberty interest at issue here because

the Parole Board regulations in effect at the time permitted rescission of

a parole grant only in two circumstances, neither of which was

applicable to Galbraith's situation;

(5) Galbraith was therefore entitled to notice and a meaningful

opportunity to be heard prior to rescission of his parole grant, but he

received neither; and

(6) A remand to the Parole Board to conduct a rescission hearing would be

futile because neither permissible basis for rescission was applicable.

The magistrate judge recommended granting Galbraith's habeas application

and ordering his release on parole within 30 days, subject to the original

conditions of his parole as granted on November 3, 2016. The State filed

objections. On March 28, 2022, the district court granted Galbraith's habeas

corpus application "for the reasons set forth in the Magistrate Judge's

Report." The State filed a timely notice of appeal. We granted an unopposed

motion to stay the district court's judgment and release order, pending

appeal.

On appeal, the State argues the district court erred in its holding that (1)

Galbraith was not required to exhaust state remedies, (2) Galbraith's

application was not time-barred, and (3) Galbraith had a protected liberty

interest in his parole grant prior to release.

*279 DISCUSSION

1 "In a habeas corpus appeal, we review the district court's findings of

fact for clear error and its conclusions of law de novo." Reeder v. Vannoy,

978 F.3d 272, 276 (5th Cir. 2020) (citation omitted).

We first review the district court's legal conclusion about the often-difficult

issue of the proper statutory vehicle for a prisoner's claim. Different

procedural hurdles apply depending on that decision. We then turn to the

State's three arguments about reversible error in the district court's rulings.

I. Habeas corpus application or Civil Rights suit?

2 Section 2241 is a general statute permitting district courts to grant

writs of habeas corpus to individuals who are in custody under the authority

of either federal law or a state court judgment, while Section 2254 limits

district courts' authority when considering habeas relief for state prisoners.

See Hartfield v. Osborne, 808 F.3d 1066, 1071-73 (5th Cir. 2015). When

state prisoners contest their custody and seek to obtain release, the

appropriate procedure is to file a Section 2254 application. Id. Significant

limitations apply to the right to relief under that section. See 28 U.S.C. §

2254(a)—(i). If the prisoner instead is contesting the "execution" of his

sentence, Section 2241 is the relevant statute. See Tolliver v. Dobre, 211

F.3d 876, 877 (5th Cir. 2000). Another expression of Section 2241's

applicability is that it is for challenges to "the manner in which a sentence is

carried out or the prison authorities' determination of its duration." Pack v.

Yusuff, 218 F.3d 448, 451 (5th Cir. 2000).

"[Section] 2254 is not an independent avenue through which petitioners

may pursue habeas relief." Hartfield, 808 F.3d at 1073. "Instead, all habeas

petitions ... are brought under [Section] 2241, and [Section] 2254 places

additional limits on a federal court's ability to grant relief if the petitioner is

being held in custody 'pursuant to the judgment of a State court.' " Topletz

v. Skinner, 7 F.4th 284, 294 (5th Cir. 2021) (quoting § 2254(a)). Among

those limitations is that the application "by a person in custody pursuant to

the judgment of a State court" must be filed within one year of different

events; relevant here is "the date on which the factual predicate of the

claim" was or could have been discovered. 28 U.S.C. § 2244(d)(1)(D).

Galbraith is in custody due to a state court judgment and seeks his release

by requesting the court to reinstate his parole grant. He argues the one-

year limitation period is inapplicable. That is because his rights allegedly

were violated when the Parole Board did not hold a hearing prior to the

rescission of his parole grant, and that means he is challenging "the manner

in which [his] sentence is carried out or the prison authorities' determination

of its duration." Pack, 218 F.3d at 451.

Three possible vehicles for Galbraith's claim have been proposed: a civil

rights suit under Section 1983, or a habeas application under either Section

2241 or Section 2254.

We start with Section 1983. A helpful precedent concerned a Section 1983

suit in which two state prisoners claimed that state authorities had violated

the Ex Post Facto and Due Process Clauses of the Constitution. See

Wilkinson v. Dotson, 544 U.S. 74, 76-77, 125 S.Ct. 1242, 161 L.Ed.2d 253

(2005). The violation allegedly arose when officials applied new, harsher

guidelines for determining parole to prisoners whose crimes had been

committed when less-demanding guidelines were used. Id. The plaintiff

prisoners had been considered for parole under the harsher guidelines, were

denied parole, and then deemed *280 ineligible to seek parole again for

five years. Id. The plaintiffs wanted immediate parole hearings under the

prior guidelines. Id. at 77, 125 S.Ct. 1242. The Court held that the

constitutional claims were properly brought using Section 1983. Id. at 76,

125 S.Ct. 1242. The Court rejected the argument that "the prisoners'

lawsuits, in effect, collaterally attack the duration of their confinement;

hence, such a claim may only be brought through a habeas corpus action."

Id. at 78, 125 S.Ct. 1242 (emphasis in original). "A consideration of this

Court's case law makes clear that the connection between the

constitutionality of the prisoners' parole proceedings and release from

confinement is too tenuous here to achieve Ohio's legal door-closing

objective." Id.

Galbraith, though, is not seeking a new hearing. He insists the parole he

earlier received was improperly rescinded and should again be reinstated.

He brings a direct and immediate claim about the duration of his

confinement, without the contingency that existed in Dotson that a new

hearing might not grant parole. Habeas is the proper procedure here.

We now examine the habeas application Galbraith eventually did file under

Section 2241. The State argues that the one-year statute of limitations that

is set out in 28 U.S.C. § 2244(d) applies. The district court disagreed,

holding that Galbraith's challenge to the rescission of his parole was

properly brought under Section 2241 (which has no statute of limitations)

because it raised issues of "the manner in which a sentence [was] carried

out," quoting Pack, 218 F.3d 448. Parole was not involved in Pack, though,

so it does not directly answer whether parole fits within the category of

"carrying out" a sentence.

So, how do we categorize this claim? Does Section 2254 apply to a

challenge to the validity or length of the original sentence but not to

disputes about whether the sentence has ended or been shortened by

subsequent events? In other words, is Section 2254 inapplicable to

challenges like Galbraith's to the execution of a sentence? A treatise on

federal habeas procedures supports our characterization of Galbraith's claim

as one that is about the "execution" of his sentence. See Tolliver, 211 F.3d

at 877. The treatise concluded that challenges to the denial of federal parole

are properly brought under Section 2241. BRIAN R. MEANS, FED. HABEAS

MANUAL § 1:29, at 47 (2023) (quoting Coady v. Vaughn, 251 F.3d 480, 485

(3d Cir. 2001)). That treatise accepts that denial of parole is an act relating

to the execution of the sentence.

The treatise continues:

All courts agree that [Section] 2241 is an appropriate vehicle to

challenge government action that inevitably affects the duration

of the petitioner's custody, such as challenges to administrative

orders revoking good-time credits, computation of a prisoner's

sentence by prison officials, a right to release on parole, or other

equivalent sentence-shortening devices.

Id. at 48.

While Galbraith is a state prisoner and the above treatise concerns federal

prisoners, our circuit has extended the same reasoning that challenges to

parole revocations sound under Section 2241 to state prisoners. Generally

unpublished opinions offer no precedential weight, but, in this circuit,

unpublished opinions issued prior to January 1, 1996, are precedential. 5th

Cir. R. 47.5.3. The district court cited one such opinion. See Richie v. Scott,

70 F.3d 1269 (5th Cir. 1995) (unpublished but precedential under Fifth Cir.

Local R. 47.5.3). In Richie, we rejected the district court's determination

that the prisoner had to bring his claim under Section 2254, finding *281

that a challenge to the revocation of parole should be brought under Section

2241. Id. at *1 (citing Rome v. Kyle, 42 F.3d 640 (5th Cir. 1994)

(unpublished); Johnson v. Scott, 56 F.3d 1385 (5th Cir. 1995)

(unpublished)). If the party is not contesting the legality or validity of the

sentence, Section 2254 is inapplicable. Id.

In another case, the Johnson panel rejected the state's invitation to allow

parole revocation challenges under either Section 2241 or 2254. Johnson,

56 F.3d at *1. Rather, it acknowledged that"[o]n numerous occasion ... this

court has construed a habeas petition challenging the revocation of parole

as one arising exclusively under" Section 2241, and it ruled accordingly. Id.

(citations omitted). Another panel found that the district court "improperly

characterized [the defendant's] petition as arising under Section 2254"

when it was not contesting the legality or validity of the sentence. Rome, 42

F.3d at *2. It concluded that a petition must be construed under Section

2241 when it "is contesting the manner in which [the] sentence is being

executed." Id.

3 Based on this precedent, we conclude that such a claim as Galbraith's

should indeed be defined as a dispute about how a "sentence is carried out."

See Pack, 218 F.3d at 451. Galbraith's challenge to the revocation of his

parole was properly brought under Section 2241. Richie, 70 F.3d at *1.

A prisoner must exhaust state remedies prior to seeking relief under Section

2241. Id. Thus, we begin with the exhaustion requirement, discuss

timeliness briefly, then conclude with examining the merits of the claim.

II. Exhaustion of state remedies

5 "Whether a federal habeas petitioner has exhausted state remedies

is a question of law reviewed de novo." Anderson v. Johnson, 338 F.3d 382,

386 (5th Cir. 2003). The "exhaustion requirement is not jurisdictional, but

reflects a policy of federal-state comity ... designed to give the State an

initial opportunity to pass upon and correct alleged violations of its

prisoners' federal rights." Id. (alteration in original) (quotation marks and

citations omitted).

On appeal, the State repeats its arguments that it made to the district court

that Galbraith could have raised his challenge in a state habeas corpus

application and has failed to exhaust his state court remedies. It relies

heavily on Sinclair v. Stalder, 867 So. 2d 743 (La. Ct. App. 2003) and Sneed

v. Hooper, 328 So. 3d 1164 (La. 2021). The district court rejected the

argument that Galbraith could have filed a state habeas application. That is

because Louisiana's statutory scheme does not permit a challenge to the

Parole Board's rescission on any ground, except for the denial of a

revocation hearing. Due to the perceived lack of any available state

corrective process, the district court held that Galbraith was not required to

exhaust his habeas application and met the exception in Section 2254(b)

(l)(B)(i). First, we examine those conclusions.

Federal habeas relief for state prisoners is limited to those applicants who

have "exhausted the remedies available in the courts of the State," unless

"there is an absence of available State corrective process" or "circumstances

exist that render such process ineffective to protect the rights of the

applicant." § 2254(b)(1). An applicant has not exhausted his available

remedies "if he has the right under the law of the State to raise, by any

available procedure, the question presented." § 2254(c).

The district court relied on the fact that "Louisiana's parole statutes allow for

appeal *282 of parole board actions in only one circumstance." The

pertinent language in the statute is this:

Parole is an administrative device for the rehabilitation of

prisoners under supervised freedom from actual restraint, and

the granting, conditions, or revocation of parole rest in the

discretion of the committee on parole. No prisoner or parolee

shall have a right of appeal from a decision of the committee

regarding release or deferment of release on parole, the

imposition or modification of authorized conditions of parole, the

termination or restoration of parole supervision or discharge

from parole before the end of the parole period, or the

revocation or reconsideration of revocation of parole, except for

the denial of a revocation hearing under R.S. 15:574.9.

La. R.S. § 15:574.11(A) (emphases added).

Another relevant statute provides that

The committee may order revocation of parole upon a determination that:

(1) The parolee has failed, without a satisfactory excuse, to comply with a

condition of his parole; and

(2) The violation of condition involves the commission of another felony,

or misconduct including a substantial risk that the parolee will commit

another felony, or misconduct indicating that the parolee is unwilling to

comply with proper conditions of parole.

La. R.S. § 15:574.9(6).

Based on the Louisiana statutory language, a prisoner cannot contest a

decision by the Parole Board unless he has not been afforded a revocation

hearing and his parole revocation meets the requirements set forth in

Section 15:574.9. Otherwise, as the district court held, there is no statutory

recourse to challenge a decision by the Parole Board. Making this clear,

when Galbraith attempted to file an administrative grievance to challenge

the Parole Board's decision, his grievance was rejected. The stated reason

was the Parole Board's policy that "decisions of these boards are

d[i]scretionary and may not be challenged."

For purposes of Section 2254(b)'s exhaustion requirement, "a

prisoner's state remedy must be adequate and available." Preiser v.

Rodriguez, 411 U.S. 475, 493, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). Based

on the statutory scheme alone, Galbraith did not have an adequate and

available state remedy or corrective process that would have allowed him to

bring this claim in state court.

Next, we look at the Louisiana caselaw cited by the parties and the district

court. The district court discussed Sinclair v. Staider and determined that

"[h]ad [Galbraith] attempted to challenge rescission of his parole through

the state court system, his pleadings would have been dismissed as directed

in Sinclair because he was not denied a parole revocation hearing, which is

the only permissible basis to obtain review of a Parole Board decision." The

State insists the district court "conflated its own perceived likelihood of

success on the merits of Galbraith's challenge with whether state review

procedures were 'available' for Galbraith to pursue." We examine Sinclair.

In that case, a Louisiana prisoner sought review of the Parole Board's

decision to deny him early release on parole. Sinclair, 867 So. 2d at

743-44. The court held that a state habeas corpus application was "the

proper mechanism for an inmate who claims his initially lawful custody

became unlawful due to the parole board's actions in denying him release on

parole." Id. at 744 (emphasis added). The court explained that Section

15:574.11(A) has been interpreted to mean "there is no appeal of decisions

of the board unless the *283 procedural due process protections specifically

afforded by the hearing provisions of 15:574.9 are violated." Id.; see also

Bosworth v. Whitley, 627 So. 2d 629, 631 (La. 1993) (outlining Louisiana's

system of parole and discussing that the Parole Board's decisions "generally

cannot be appealed" as per Section 15:574.11). Accordingly, any challenge

to actions of the Parole Board not "in accordance with 15:574.9 should be

dismissed by the district court." Sinclair, 867 So. 2d at 744. Because

Louisiana's parole statutes did not "create an expectancy of release or

liberty interest," the court held Sinclair's application failed to state a cause

of action. Id. In that case, Sinclair challenged the parole board's decision to

deny his initial application for parole, but the "parole board has full

discretion when passing on applications for early release." Id.

Galbraith's case significantly differs from Sinclair's — most clearly in the fact

that his petition for parole was granted, not denied. Galbraith had a parole

hearing and was granted a Certificate of Parole. The Parole Board set his

release date and arranged with the State of Texas to have Galbraith serve

his parole there. Galbraith's parole grant was rescinded two days prior to his

release for a reason that appears unauthorized by statute at the time. 5

Thus, under Sinclair, if Galbraith would have filed a state habeas corpus

application challenging the Parole Board's rescission, his application would

have been dismissed because the claim was not based on the Parole Board's

failure to provide a parole revocation hearing. See id. This supports the

district court's conclusion that Galbraith was not required to meet the

exhaustion requirement because there were no available state procedures to

exhaust.

The State also discusses a recent Louisiana Supreme Court opinion in which

the court analyzed a habeas corpus application that involved a prisoner's

challenge to the rescission of his parole. Sneed, 328 So. 3d 1164. There, a

prisoner was granted parole; four days prior to his scheduled release, he

collapsed and was hospitalized. Id. at 1164. Upon his release from the

hospital, and after his parole release date had passed, he returned to prison

and was issued a disciplinary report for possessing contraband that was

related to his collapse. Id. Although he was later found "not guilty" of

possessing the contraband, a single Parole Board member rescinded his

parole grant a few days after that finding. Id.

When presented with Sneed's state habeas corpus application, the Louisiana

Supreme Court held: (1) Sneed's limited liberty interest attached once his

release date passed; (2) rescission of his parole was not available for that

reason; (3) Sneed "was entitled to a revocation hearing rather than a

rescission of parole"; and (4) the denial of a revocation hearing was

appealable under Section 15:574.11. Id. at 1165. In an opinion issued a few

days later, the Louisiana Supreme Court further held the district court erred

by ordering Sneed to *284 be released on parole because that was "not an

available remedy" under Section 15:574.11(C) for his due process violation.

Sneed v. Hooper, 328 So. 3d 1165, 1166 (La. 2021). The Louisiana

Supreme Court remanded the case to the district court with instructions to

remand the matter to the Parole Board to conduct a parole revocation

hearing pursuant to Louisiana law. Id.

The district court distinguished Sneed on the ground that Sneed's parole

was rescinded after his release date passed; thus, he came within the

statutory exception to appeal the denial of what should have been a

revocation hearing. The district court was correct that Sneed's emphasis on

the timing of the Parole Board's rescission means it does not apply here.

Sneed, 328 So. 3d at 1166.; see also Sneed, 328 So. 3d at 1164-65. The

Louisiana Supreme Court construed Sneed's challenge as a revocation,

rather than a rescission, because he was kept in prison beyond his release

date that was scheduled before the purported rescission decision. Sneed,

328 So. 3d at 1164-65.

discusses "expectancy of release," while the question here is whether there

are limits on the Parole Board to rescind parole after its formal grant but

before the effective date of release.

The State also relies on a Louisiana Supreme Court decision that addressed

parole eligibility for inmates sentenced to life and the commutation of those

sentences. See Bosworth, 627 So. 2d at 630. In Bosworth, the state court

held that state prisoners who were statutorily ineligible for parole had no

protected liberty interest in parole eligibility because the Louisiana

legislature set those parameters. See id. at 633-34. Because the analysis

was limited to non-grantees, it is not instructive of whether a parole grantee

— such as Galbraith — has a protected liberty interest.

Finally, the State argues a United States Supreme Court decision is

dispositive. See Jago v. Van Curen, 454 U.S. 14, 102 S.Ct. 31, 70 L.Ed.2d

13 (1981). As the State puts it, that case "explicitly held that a prisoner has

no protected liberty interest in parole until the prisoner is actually released

on parole, even where an initial decision to grant parole is made and later

rescinded." The State's summary of the Supreme Court's holding is overly

broad, and the Court's analysis and holding is distinguishable from this case.

Jago is factually similar to this case, but there are notable differences that

impacted that outcome. The Jago Court reversed the Sixth Circuit's decision

that the Ohio Parole Board violated the prisoner's procedural due process

rights when it rescinded his parole grant prior to its effective date without a

hearing, a rescission based on the discovery that Jago had falsified

information in his parole interview. Id. at 15-17, 102 S.Ct. 31. The Court

held that the Sixth Circuit "erred in finding a constitutionally protected

liberty interest by rel[ying] upon the 'mutually explicit understandings'

language of Perry v. Sindermann," 408 U.S. 593, 92 S.Ct. 2694, 33 L.Ed.2d

570 (1972). Id. at 17, 102 S.Ct. 31. That was because the Court's "decision

in Sindermann was concerned only with the Fourteenth Amendment's

protection of'property' interests, and its language, relied upon by the Court

of Appeals, was expressly so limited." Id.

The Court reiterated that " '[t]he ground for a constitutional claim, if any,

must be found in statutes or other rules defining the obligations of the

authority charged with exercising clemency.' " Id. at 20, 102 S.Ct. 31

(quoting Connecticut Bd. of Pardons v. Dumschat, 452 U.S. 458, 465, 101

S.Ct. 2460, 69 L.Ed.2d 158 (1981)). In *286 Ohio, parole for prisoners lay

entirely within the discretion of the Ohio Adult Parole Authority. Id. at 16,

102 S.Ct. 31. The Court did not discuss any statutory limits on withdrawing

a grant. Instead, the argument as to why process was due was based on

quasi-contract. Id. at 17-18, 102 S.Ct. 31. The Court rejected the Sixth

Circuit's approach that relied on both the general law of contracts and

common law to give rise to a protected liberty interest in that particular

parole context. Id. at 18-20, 102 S.Ct. 31.

Thus, the Ohio statutes providing for parole did not create a protected

liberty interest. Jago was therefore not entitled to a hearing prior to the

rescission of his parole. Id. at 21-22, 102 S.Ct. 31. We need to examine the

Louisiana statutory framework, but we first give background on liberty

interests.

10 Those seeking to invoke the Fourteenth Amendment's