Petition for Writ of Certiorari — Scott Edward Palmer, Petitioner v. Eric Guerrero, Director, Texas Department of Criminal Justice, Correctional Institutions Division

Supreme Court briefFeb 22, 2026

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No.

In the Supreme Court of the United StaHel

SCOTT EDWARD PALMER,

Petitioner,

vs.

ERIC GUERRERO,

Respondent.

On Writ of Certiorari to the

United States Court of Appeals

for the Fifth Circuit

BRIEF FOR THE PETITIONER

SCOTT EDWARD PALMER

No. 660844

Alfred D. Hughes Unit

3201 FM 929

Gatesville, TX 76597

SUPREMTcoufreu^

QUESTIONS PRESENTED FOR REVIEW

1. Does the Fifth Circuit's erroneous denial of petitioner's

certificate of appealability significantly depart from the

accepted and usual course of judicial proceedings undermining

Miller-El v. Cockrell, 537 U.S. 322 (2003). And, is the Court

of Appeals complaint that petitioner's Rule 59(e) notice of

appeal ineffective erroneous.

2. Is 28 U.S.C. §2241 available by a state prisoner to

challenge the manner in which a sentence is executed without

the restrictions of the AEDPA. This issue has not been decided

by this Court.

LIST OF PARTIES

Petitioner:

Scott Edward Palmer

Respondent:

Eric Guerrero, Director, Texas Department of Criminal Justice,

Correctional Institutions Division

Counsel for Respondent:

Ken Paxton, Cara Hanna/Office of the Texas Attorney General

TABLE OF CONTENTS

QUESTIONS PRESENTED ..............................

LIST OF PARTIES ..................................

TABLE OF AUTHORITIES .............................

iii

OPINIONS BELOW ...................................

JURISDICTION .....................................

CONSTITUTIONAL AND STATUTORY PROVISIONS ............

STATEMENT OF THE CASE

II.

III.

Course of proceedings in the post-conviction

case now before this Court.

Relevant facts concerning the unlawful

recession of Mr. Palmer's good time credits.

The Fifth Circuit has departed significantly

from the accepted and usual course of judicial

proceedings in denying petitioner a COA.

SUMMARY OF ARGUMENT ..............................

ARGUMENT FOR ALLOWANCE OF WRIT

WHETHER THE LOWER COURTS DENIAL OF A COA WAS

NOT ONLY DEBATABLE; IT WAS ERRONEOUS.

(a) Whether reasonable jurists would agree

that the district court's opinion that

revocation of petitioner's good time

credits was not a violation of due

process distorts Swarthout v. Cooke,

562 U.S. 216 (2011) .............

(b) Whether reasonable jurists could

debate the district court’s procedural

holding that the state habeas

proceedings were an adjudication on the

merits and that exhaustion was not

satisfied is erroneous ...........

II.

reason that petitioner's Rule 59(e)

notice of appeal ineffective

erroneous.

And, whether reasonable jurists

could debate the district court's

procedural ruling denying

petitioner's Rule 59(e) motion ....

(d) Whether reasonable jurists could

debate the district court's

procedural ruling that petitioner's

loss of good time was not cognizable

under § 2241 .....................

IS 28 U.S.C. § 2241 AVAILABLE BY A STATE

PRISONER TO CHALLENGE THE MANNER IN WHICH

A SENTENCE IS EXECUTED WITHOUT THE

RESTRICTIONS OF THE AEDPA.

(a) Is § 2241 an available remedy for relief

when a state prisoner is only challenging

the execution or duration of the sentence 34

CONCLUSION .......................................

APPENDIX

TABLE OF AUTHORITIES

Adams v. City of Harahan,

95 F. 4th 908 (5th Cir. 2024)..................

Baker v. Baker,

143 Tex. 191, 183 S.W. 2d 724 (1944) ...........

Bd. of Pardons v. Allen,

482 U.S. 369 (1987) ..........................

Boumediene v. Bush,

553 U.S. 723 (2008) ..........................

Bradshaw v. Richey,

546 U.S. 74 (2005) ...........................

Brown Cracker & Candy Co. v. City of Dallas,

104 Tex. 290, 137 S.W. 342 (1911) ...

Clifford v. Beto,

464 F.2d 1191 (5th Cir. 1972) ................

Cobra Oil & Gas Corp, v. Sadler,

447 S.W. 2d 887 (Tex. 1968) ..................

Cone v. Bell,

556 U.S. 449 (2009) .........................

Crest Ridge Constr. Group v. Newcourt Inc.,

78 F.3d 146 (5th Cir. 1996) .................

Demahy v. Schwarz Pharma, Inc.,

702 F.3d 177 (5th Cir. 2012) ................

Duncan v. Walker,

533 U.S. 167 (2001) .........................

iii

Dussouy v. Gulf Coast Inv. Corp.,

660 F.2d 594 (5th Cir. 1981) ...................

29 , 30

EEOC v. Temps. Co,

679 F.3d 323 (5th Cir. 2012) ...............

Erickson v. Pardus,

551 U.S. 89 (2007) .........................

Ex parte Paloma,

759 S.W. 2d 671 (Tex. Crim. App. 1988) ...... 20, 22

Ex parte Thomas,

953 S.W. 2d 286 (Tex. Crim. App. 1997) ...........

Foman v. Davis

371 U.S. 178 (1962) .........................

Foster v. City of Waco,

113 Tex. 352, 255 S.W. 1104 (1923) ........

17 , 18

French*s Lessee v. Spencer,

62 U.S. (21 How.) 228 (1858) ....................

Fuentes v. Shevin,

407 U.S. 67 (1972) .......................

10 , 15

Galbrajth v. Hooper,

85 F. 4th 273 (5th Cir. 2023) ...............

Galbrajth v. Hooper,

151 F.4th 795 (5th Cir. 2025) ...............

Gardner v. Collins,

27 U.S. 58 (1829) ..........................

Graham v. Johnson,

2000 U.S. Dist. LEXIS 20272 (N.D. Tex. Dec. 26, 2000)

Gross v. FBL Fin. Servs.,

557 U.S. 167 (2009) ............................

Guy v. Crown Equip Corp.,

394 F.3d 320 (5th Cir. 2004) ...............

Hamdi v. Rumsfeld,

542 U.S. 507 (2004) ..............

Hollingsworth v. Perry,

558 U.S. 183 (2010) ...........................

Hughes Aircraft Co. v. Jacobsen,

525 U.S. 432 (1991) ........

Johnson v. Scott,

1995 U.S. App. LEXIS 42764 (5th Cir. 1995) ... 31,32

Jones v. Flowers,

547 U.S. 220 (2006) ......................

11 ,19

'Kentucky Dep't of Corrections v. Thompson,

490 U.S. 454 (1989) ......................

Kimbrell v. Cockrell,

311 F.3d 361 (5th Cir. 2002) ..........

30 - 32

Lewis v. Casey,

518 U.S. 343 (1996) ......................

Malchi v. Thaler,

211 F.3d 953 (5th Cir. 2000) ..............

30 - 31

Marbury v. Madison,

5 U.S. 137 (1803) ..........................

Martin v. Franklin Capital Corp.,

546 U.S. 132 (2005) .........................

Martinez v. Caldwell,

644 F.3d 238 (5th Cir. 2011) ................

Mayeaux v. La Health Serv. & Indem. Co.,

376 F.3d 420 (5th Cir. 2004) ................

McGary v. Scott,

27 F.3d 181 (5th Cir. 1994) ...........

Menominee Indian Tribe v. United States,

577 U.S. 250 (2016) ...........

Miller-El v. Cockrell,

537 U.S. 322 (2003) .

Miles v. Apex Marine Corp.,

498 U.S. 19 (1990) .........................

Montez v. McKinna,

208 F.3d 862 (10th Cir. 2000) ..............

Ochoa-Salgado v. Garland,

5 F.4th 615 (5th Cir. 2021) ................. 32-33

Olim v. Wakinekoma,

461 U.S. 238 (1983) .........................

Ortega v. Stephens,

784 F.3d 250 (5th Cir. 2015) ...............

Palmer v. City of Euclid,

402 U.S. 544 (1971) .....................

11,18

Palmer v. Lumpkin,

2024 U.S. Dist. LEXIS 221416 (S.D. Tex. Dec. 6, 2024)

Palmer v. Guerrero,

2025 U.S. App. LEXIS 31476 (5th Cir. Dec. 3, 2025)

Preiser v. Rodriguez,

411 U.S. 507 (1973) ....................

32-33

Propes v. Quarterman,

573 F.3d 225 (5th Cir. 2009) ..............

Reynolds v. Johnson,

2001 U.S. Dist. LEXIS 25102 (N.D.Tex. Feb. 20, 2001)

Rosenblatt v. United Way of Greater Houston,

607 F.3d 413 (5th Cir. 2010) ...............

Slack v. McDaniel,

529 U.S. 473 (2000) .......................

Spaulding v. Scott,

1994 U.S. App. LEXIS 43033 (5th Cir. 1994) ......

31-32

Stewart v. Cain,

1995 U.S. App. LEXIS 41730 (5th Cir. 1995) ......

Story v. Collins,

920 F.2d 1247 (5th Cir. 1991) ...............

Stroman v. Thaler,

603 F.3d 299 (5th Cir. 2010) ................

Soyka v. Alldredge,

481 F.2d 303 (3rd Cir. 1973) ....................

Supertintendent, Mass. Corr. Inst., Walpole v. Hill,

472 U.S. 445 (1985) ........................

Swarthout v. Cooke,

562 U.S. 216 (2011)

...................... 10,19

Teauge v. Quarterman,

482 F.3d 769 (5th Cir. 2007) ...................

vii

Timmins v. State,

601 S.W. 3d 345 (Tex. Crim. App. 2020) .....

United States v. McDaniels,

907 F.3d 366 (5th Cir. 2018) ..............

United States v. Perry,

35 F.4th 293 (5th Cir. 2022) ..............

United States ex rel. Willard v. Humana Health Plan of Tex.,

336 F.3d 375 (5th Cir. 2003) ................

United States v. Gabor,

905 F.2d 76 (5th Cir. 1990)

31 ,34-35

United States v. Guerrero,

768 F.3d 351 (5th Cir. 2014) ...................

United States v. Reese,

92 U.S. 214. (1876).........................

United States v. Traxler,

764 F.3d 486 (5th Cir. 2014) ...............

Webster v. Fall,

266 U.S. 507 (1925) ....................... 32-33

Wansley v. Miss. Dep't of Corr.,

769 F.3d 309 (5th Cir. 2014) ....................

Watkins v. State,

619 S.W. 3d 265 (Tex. Crim. App. 2021) ......

Weeks v. Angelone,

528 U.S. 225 (2000) ........................

West v. AT&T,

311 U.S. 223 (1940) ....

viii

Wilkinson v. Austin,

545 U.S. 209 (2005)

10 ,18

Wolff v. McDonnell,

418 U.S. 539 (1974)

10 , 15

Ylst v. Nunnemaker,

501 U.S. 797 (1991)

RULES:

Federal Rules of Civil Procedure 15(a)

Federal Rules of Civil Procedure 59(e)

1,5 ,23-25 , 28

Rule 3(d) of the Rules Governing Section 2254 Cases ....

United States Supreme Court Rule 10(a)

STATUTES:

28 U.S.C. § 1254(1)

28 U.S.C. § 1746

...............................

28 U.S.C. § 2241

3-4 , 29 -37

28 U.S.C. § 2253

28 U.S.C. § 2244

32-33,35-37

28 U.S.C. § 2254

31-34 ,-36

Texas

Government Code §311.016(3)

Texas

Government Code § 498.004(b)

Texas

Government Code § 508.149(a)

Texas

Government Code § 508.154

'..

3 ,12 ,14 ,16

OPINIONS BELOW

The decision of the state habeas court denying the under

lying post-conviction relief was not reported. The Findings of

Fact and Conclusions of Law, dated July 25, 2023 is at Appendix

p. 1.

A Memorandum Opinion of the District Court of the Southern

District of Texas Houston Division dismissing petitioner’s

underlying federal petition is unpublished. The decision may be

found at Palmer v. Lumpkin, 2024 U.S. Dist. LEXIS 221416

(S.D. Tex. Dec. 6, 2024). It has been appended at Appendix p. 6.

The Memorandum Opinion denying petitioner Rule 59(e)

relief is not reported. The decision dated April 23, 2025, is

at Appendix p. 13.

An unpublishied opinion dated December 3, 2025 by the

Fifth Circuit Court of Appeals denying a COA may be found at

Palmer v. Guerrero, 2025 U.S. App. LEXIS 31476 (5th Cir. Dec.

3, 2025). It is appended at Appendix at 24.

JURISDICTIONAL STATEMENT

The judgment of the United States Court of Appeals for the

Fifth Circuit was entered on December 3, 2025. Rehearing was

not sought. The Jurisidiction of this Court is invoked under

28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY PROVISIONS

The principal factual issue in this case is whether the

guarantees of the Fourteenth Amendment apply to the petitioner.

The lower court's have answered in the negative.

The Fourteenth Amendment to the United States Constitution

provides, in part:

No state shall deprive any person of life, liberty, or

property without due process of law. U.S. Const., amend.

XIV, § 1.

Texas Government Code §508.154 provides, in pertinent part:

"Contract on Release.

(a) An inamte to be released on parole shall be

furnished a contract stating in clear and

intelligible language the conditions and rules

of parole.

(b) Acceptance, signing, and execution of the

contract by the inmate to be paroled is a

precondition to release on parole.

(d) A releasee while on parole or mandatory

supervision must be amenable to the conditions

of supervision ordered by a parole panel."

28 U.S.C. § 2241(c) provides in relevant part:

(3) He is in custody in violation of the

Constitution or laws or treaties, of the

United States[.]

STATEMENT OF THE CASE

The facts necessary to place in their setting the questions

now raised are outlined below:

I. COURSE OF PROCEEDINGS IN THE POST-CONVICTION CASE NOW

BEFORE THIS COURT.

On January 27, 2023 Mr. Palmer instigated his state post

conviction application. A procedural thicket of impediments by

prison officials and the state courts interfered with its timely

processing. (See generally App. at 32 - 35 and supporting

documents). The state habeas trial court denied relief on July

25, 2023. (App. at 5). The Texas Court of Criminal Appeals

denied relief on August 23, 2023 without written order based on

the findings of the trial court. (App. at 58).

With no notice from the state courts of the disposition

of his post-conviction application, (App. at 34 & 35), Palmer

filed his federal petition on November 3, 2023. (Id. at 34).

Respondent filed an Answer on February 15, 2024. (App. at 54).

Mr. Palmer filed a timely response and amendment pursuant

to 28 U.S.C. §2241. (App. at 70-87). The district court denied

his right to proceed pursuant to § 2241. (App. at 89 - 90). A

timely notice of appeal was filed. An additional amendment

containing verified avoidance defenses to the AEDPA statute of

limitations was filed on July 15, 2024. (App. at 27 - 54). This

was denied. (App. at 92).

On December 6, 2024, the District Court entered an opinion

dismissing all claims with prejudice. (App. at 6).

A timely Rule 59(e) motion was filed on the denial of

Palmer's amendment containing verified avoidance defenses to

the statute of limitations barring his claim. (App. at 93 100). Respondent was ordered to respond within 30 days and Palmer

to reply thereafter within 15 days. (App. at 101). Without any

requested extension of time, Respondent's Response was 48 days

tardy. (App. at 102). The court sua sponte accepted Respondent's

untimely Response and denied 59(e) relief without allowing a

reply from Palmer. (App. at 13). A timely notice of appeal

followed. (App. at 116-117).

Mr. Palmer filed his Motion for COA

and Brief in Support

with the Fifth Circuit. (App. at 118-148). The Fifth Circuit

denied a COA on December 3, 2025. (App. at 24).

II. RELEVANT FACTS CONCERNING THE UNLAWFUL RECESSION OF

MR. PALMER'S GOOD TIME CREDITS.

The Texas Board of Pardons and Paroles failed to comply

with the constitutional guarantee of the Fourteenth Amendment

governing his supervised release. The contractual conditions of

release were memorialized in a document titled Certificate of

Parole. (App. at 67-69). Critically, the omission involved

his right to notice of proscribed conduct in connection with the

loss of his good time credits which he possessed a liberty

interest in.

The district court in disposing of this constitutional

claim conceded the lack of notice, but concluded nonetheless

that the mere existence of state forfeiture laws was all the

notice required. (App. at 22).

Importantly, the only actual notice Mr. Palmer had was that

his good time credits were intact by the plain and unambigious

contractual conditions presented to him by the Texas Board of

Pardons and Paroles and agreed to by both parties. To hold

otherwise is to trivialize constitutional process.

Absent the unlawful recession of the 15 years, 5 months, and

approximately 23 days of accrued good time credits, Mr. Palmer

would have been released to his nondiscretionary mandatory

supervision on December 15, 2024. He has no detainers barring

his unconditional release.

III. The Fifth Circuit Has Departed Significantly From

the Accepted and Usual Course of Judicial

Proceedings in Denying Petitioner a COA.

Palmer deems it unnecessary to outline in this petition the

entire thrust of this Court's decisions concerning the standard

of review for COA's. It is sufficient to say that a petitioner

satisfies this standard by demonstrating that "jurists of reason

could disagree with the district court's resolution of his const

itutional claims or that jurists could conclude the issues

presented are adequate to deserve encouragement to proceed further."

Miller-El v. Cockrell, 537 U.S. 322, 327 (2003)(citing Slack v.

McDaniel, 529 U.S. 473, 484 (2000). For issues dismissed on

procedural grounds, a COA should be issued if "jurists of reason

would find it debatable whether the district court was correct

in its procedural ruling." Slack, 529 U.S. at 484.

Yet, here, the Fifth Circuit in issuing a blanket denial

of Palmer's well-pled COA, (App. at 121 - 151), as to all claims

presented did not provide any reasoned assessment justifying the

dismissal. (App. at 24). Compare: "While a COA ruling is not the

occasion for a ruling on the merit of petitioner's claim,"

Miller-El, 537 U.S. at 331, it would seem some assessment of

Palmer's well-pled and substantively meritorious arguments was

necessary to explain the denial. Miller-El, 537 U.S. at 336

(emphasizing that "[t]he COA determination ... requires an

overview of the claims in the habeas petition and a general

assessment of their merits.").

Troubling as well, the district court failed to offer any

reasoned assessment other than a mere ipse dixit. But to deny a

COA, a court must necessarily conclude that the claim is

indisputably meritless. A reviewing court cannot determine that

a claim is indisputably meritless (that is, nondebatable) without

first deciding that it is meritless. See Weeks v. Angelone,

528 U.S. 225, 231 (2000)(affirming denial of COA after determin

ing that petitioner’s claim was meritless).

Again, Mr. Palmer's claims are well-pled and substantively

meritorious. To avoid repetition and for the sake of brevity,

Mr. Palmer would respectfully refer this Court to Section I

at pp. 10-34 where the issues are briefed.

By comparison, the district court's resolution of Palmer's

claims were not merely debatable, but patently erroneous in

result and reasoning. As such, it blinks reality to conclude

that the lower court's have done anything less than surreptiously

undermined the gate keeping function of the certificate of

appealability process to achieve a predetermined outcome.

Certiorari should be granted to review the Fifth Circuit's

radical departure of the review standard of Mr. Palmer's COA.

See Hollingsworth v. Perry, 558 U.S. 183, 196 (2010)(per curiam)

(citing this Court's Rule 10(a)).

SUMMARY OF ARGUMENT

This writ of certiorari follows on the heels of Mr. Palmer's

pending Application For Emergency Injunctive Relief of Respondent's

illegal imprisonment of him currently before this Court.

Mr. Palmer's initial brief to this Court was belatedly

postmarked December 1, 2025 and received by this Court on December

8th due to processing errors within the institution. However,

the Fifth Circuit was alerted to the petition and hastily cleared

the case off its docket.

The conclusory and erroneous inattention of the opinion is

the functional equivalent of the failure to decide. Thus, the

answers to the crucial questions presented are anyone's guess.

The Fifth Circuit's position is strong evidence of insincerity

and displays a lamentable lack of appreciation for this Court's

time constraints and precedents.

Ultimately, it is this Court's duty to say what the law is.

The lower court's rulings cannot be made to vanish the protection

of clearly established federal law so easily.

ARGUMENT FOR ALLOWANCE OF WRIT

WHETHER THE LOWER COURTS DENIAL OF A COA WAS NOT ONLY

DEBATABLE; IT WAS ERRONEOUS.

(a) Whether reasonable jurists would agree that the

District Court's decision that revocation of petitioner's

good time credits was not a violation of due process distorts

Swarthout v. Cooke, 562 U.S. 216 (2011).

Clearly Established Federal Law.

The right that a prisoner cannot be deprived of a protected

liberty interest in good time credits without procedural due

process has undoubtedly been fully established by this Court.

Wolff v. McDonnell, 418 U.S. 539, 557 (1974). Critical to the

instant case is notice. In Wilkinson v. Austin, this Court

emphasized: "For more than a century the central meaning of

procedural due process has been clear: 'Parties whose rights are

to be affected are entitled to be heard; and in order that they

enjoy that right they must first be notified.'" 545 U.S. 209,

226 (2005)(quoting Fuentes v. Shevin, 407 U.S. 67, 80 (1972)).

"These essential constitutional promises may not be eroded."

Hamdi v. Rumsfeld, 542 U.S. 507, 533 (2004)(plurality opinion).

And, this Court has been clear that the Constitution requires

that "a person of ordinary intelligence [must be given] fair

notice that his contemplated conduct is forbidden." Palmer v.

City of Euclid, 402 U.S. 544, 545 (1971)(per curiam). This

Court has further established that inquiry notice does not

relieve the State of its constitutional obligation to provide

adequate notice. Jones v. Flowers, 547 U.S. 220, 232 (2006).

Mr. Palmer’s Liberty Interest.

Palmer acknowledges that generally violation of state law

does not constitute a basis for federal habeas relief. Wansley

v. Miss. Dep't of Corr., 769 F.3d 309, 312 (5th Cir. 2014).

However, "[w]hen a state has a system of mandatory parole, such

a liberty interest exists that implicates the procedural

guarantees of the Due Process Clause." Id. (citing Bd. of Pardons

v. Allen, 482 U.S. 369, 373-74 (1987).

In Texas, it is settled that a constitutional expectancy of

early release existed in Texas' mandatory supervision scheme in

place for crimes committed before September 1, 1996. Teauge v.

Quarterman, 482 F.3d 769, 774 (5th Cir. 2007).

Palmer's offense of Theft by Check was committed in June

1990, and he does not have any offenses rendering him ineligible

for mandatory supervision. Tex. Gov't Code § 508.149(a). Thus,

he has a liberty interest in his good time credits. Teauge,

482 F.3d at 777.

Texas Government Code § 508.154.

The statute provides the framework for this claim. It

provides, in relevant part:

’’Contract on Release

(a) An inmate to be released on parole shall be

furnished a contract stating in clear and

intelligible language the conditions and rules

of parole.

(b) Acceptance, signing, and execution of the

contract by the inmate to be paroled is a

precondition to release on parole.

(d) A releasee while on parole ... must be

amenable to the conditions of supervision

ordered by a parole panel.’’

Standard of Review for State-Created Liberty Interests.

"[A] state creates a protected liberty interest by placing

substantive limitations on official discretion." Kentucky Dep’t

of Corrections v. Thompson, 490 U.S. 454, 462 (1989)(citing

Olim v. Wakinekona, 461 U.S. 238, 249 (1983). The Court observed

"that the most common manner in

which a State creates a liberty

interest is by establishing ’substantive predicates* to govern

official decision-making, [citation omitted], and, further by

mandating the outcome to be reached upon a finding that the

relevant criteria have been met." Thompson, 490 U.S. at 462.

Definitions.

Applying the above standards, Subsection (a) provides that

the Texas Board of Pardons and Paroles ("TBPP") "shall

action] ... furnish[]

a contract in clear

[mandatory

and intelligible

language the conditionsand rules of parole." (substantive

predicate eliminating official discretion). This section is also

subject to particularized critera. I.e., the "contract [shall

state] in clear and intelligible language the conditions and

rules of parole."

Section (b) reads: "Acceptance, signing and execution of the

contract by the inmate to be paroled is a precondition to release

on parole." The term precondition or condition precedent are

functionally synomous. EEOC v. Temps Co., 679 F.3d 323, 331 n. 13

(5th Cir. 2012). A condition precedent is an event that must be

performed before a right can accrue to enforce an obligation.

See Crest Ridge Constr. Group v. Newcourt Inc., 78 F.3d 146, 150

(5th Cir. 1996).

1 "Shall does not merely suggest or recommend that a thing be

done — it commands it done. Shall imposes a duty." Timmins v.

State, 601 S.W.3d 345, 352 (Tex. Crim. App. 2020).

2 In the dictionary the verb "furnish" is defined as "provide

with what is needed" or "supply; give." Furnish, MerriamWebster Collegiate Dictionary (10th ed. 2001). The plain

meaning of the words are not defined in the statute so resort

to dictionary definitions is appropriate. Timmins, 601 S.W.

3d at 351-52.

3 "Clear" means "unambiguous," or "free from doubt." Black's

Law Dictionary 268 (8th ed. 2004).

Section (d) of the statute then concludes: "A releasee

while on parole ... must

be amenable to the conditions of

supervision ordered by a parole panel.” This provision mandates

a particular substantive outcome — release to parole when the

relevant mandatory language and substantive predicates are met.

See Clifford v. Beto, 464 F.2d 1191, 1195 (5th Cir. 1972).

§508.154 is Legally Considered a Contract.

The title of § 508.154 reads: ’’Contract on Release.”

Although^ a statutory title or caption does not limit or expand

a statute’s meaning, the title can inform the object to be

attained by the Legislature. Watkins v. State, 619 S.W. 3d 265,

273 (Tex. Crim. App. 2021). The fact is that the Texas

Legislature considers what is generically referred to as a

Certificate of Parole, (App. at 67-69), to legally be a contract.

This conclusion is buttressed by the exclusive use of the word

’’contract" in both subsection (a) and (b). Id. at 271 - 272

(Texas courts focus on the statutes literal text). And, each

word, phrase, clause, and sentence should be given effect. Id. at

4 A "condition" is defined by Black's Law Dictionary as "[a]

future and uncertain event upon the happening of which is

made to depend the existence of liability under a contract to a

certain future event." Black's law Dictionary (6th ed. 1990).

5 Texas's Code Construction Act instructs that the term "must"

reflects a condition precedent. Tex. Gov't Code §311.016(3).

272.

Relatedly, "[n]onprosecution agreements, like plea bargains,

are conctrual in nature, and therefore interpreted in accordance

with general principles of contract law." United States v. Perry,

35 F. 4th 293, 348 (5th Cir. 2022)(citation omitted). Accordingly,

general principles of contract interpretation sensibly apply here

too.

Statutory Purpose of §508.154.

The substantive limitations that the Texas Legislature

impose on the TBPP as applied to Mr. Palmer were to guarantee

that the notification process of any condition of his release

would not result in "substantially unfair or mistaken depriva

tions" of protected interests. Fuentes, 407 U.S. at 81; Wolff,

418 U.S. at 558 ("The touchstone of due process is protection of

the indiviual against arbitrary action of government.").

Was § 508.154 Violated?

Respondent's production of Mr. Palmer's Certificate of

Parole (hereafter contract) provides the uncontested evidence

of this constitutional violation. (App. at 67-69). This offical

state signed document is "entitled to a presumption of regularity

and are accorded great evidentary weight." United States v.

.McDaniels, 907 F.3d 366, 371 (5th Cir. 2018)(citation omitted).

Independent research reveals that the TBPP was aware of

their minimum due process obligations for furnishing notice of

the condition of the possible loss of good time credits. See

Reynolds v. Johnson, 2001 U.S. Dist. LEXIS 25102, *22 (N.D.

Tex. Feb. 20, 2001)(applying § 508.154 to Reynolds contract

states that ’’all good time credits will be forfeited, if a

parolee violates the conditions of his parole.”); Graham v.

Johnson, 2000 U.S. Dist. LEXIS 20272, * 14 - 15 (N.D. Tex.

Dec. 26, 2000)(applying §508.154 to Graham's contract states

that "all good time credits will be forfeited if a parolee

violates the conditions of his parole.’’).

"Parol evidence is always admissible to show the non

existence of a contract or the conditions upon which it may

become effective." Baker v. Baker, 143 Tex. 191, 183 S.W. 2d

724, 728 (1944). Mr. Palmer was not furnished the condition

that proscribed conduct would result in the forfeiture of his

good time credits. (App. at 67-69).

Here, we have the Texas Legislature's clear, direct, and

unambiguous language in §508.154. As explained, the statute

contains: (1) specific substantive predicates eliminating

official decision-making, and (2) explicitly mandatory language

specifying the outcome that must be reached if the substantive

predicates have been met.

To put a finer point on it, compare the sorts of criteria

set out above with what was required in the quintessential

example of a ministeral duty: the delivery of the commission

in Marbury v. Madison, 5 U.S. 137 (1803). There, Marbury's

commission had been signed and sealed, but not delivered. The

Secretary of State was required by law to just hand over the

parchment, a function that required no judgment and where

nothing was left to discretion. Id. at 158. The same ministeral

duty in Marbury inures to Palmer's lack of notice here by the

TBPP regarding the loss of his liberty interest in his good

time credits under §508.154.

Supreme Court Precedent Addressing the Violation.

First and principally, the TBPP's failure to comply with

§508.154 as applied to Mr. Palmer above is prohibited. See

French's Lessee v. Spencer, 62 U.S. (21 How.) 228, 238 (1858)

("[W]here the legislature makes a plain provision, without making

any exception, the courts can make none."). Texas law provides

for the same protection. Cobra Oil & Gas Corp, v. Sadler,

447 S.W. 2d 887, 892 (Tex. 1968)(citing Foster v. City of Waco,

113 Tex. 352, 255 S.W. 1104 (1923).

Under Texas law, the TBPP had no authority to suspend or

alter § 508.154. Brown Cracker & Candy Co. v. City of Dallas,

104 Tex. 290, 137 S.W. 342, 343 (1911). Palmer further urges

that the TBPP’s failure to comply with its ministeral duty in

§508.154 as applied to Palmer renders the contract void. See

Foster, 255 S.W. 2d at 1106 ("All acts beyond the scope of the

powers granted are void.").

Mr. Palmer's liberty interest in his good time credits

required that he be furnished notice off all the conditions of

his supervised release. Wilkinson, 545 U.S. at 226. That notice

was required to provide "a person of ordinary intelligence fair

notice that his contemplated conduct is forbidden." Palmer,

402 U.S. at 545.

Then, too, the Constitution allows a state to revoke good

time credits only when "some evidence" supports the decision.

Superintendent, Mass. Corr. Inst., Walpole v. Hill, 472 U.S.

445, 455 (1985). That's not a high standard: this Court observed

that it entails less than the "substantial evidence" standard

commonly used in administrative law, and materially less than

the "beyond a reasonable doubt" standard used in criminal

proceedings. Id. at 456. But there must be some evidence. Here,

there is none that Palmer was furnished notice in the contract

by the TBPP that any proscribed conduct would result in the loss

of his good time credits. (App. at 67-69).

District Court's Opinion Fails to Comport with Due Process.

The District Court's theory for alleging no constitutional

violation of Mr. Palmer’s good time credits is weakly grounded in:

”[F]orfeiture was required under Texas Government

Code § 498.004(b). Because the credit was forfeited

pursuant to state law, petitioner had fair notice

that it would be forfeited if his parole were

revoked. Petitioner cites no authority holding that

§ 498.004(b) is unenforceable, or violates federal

due process ... if its provisions do not appear

within the parole contract itself.”

(App. at 22). The lower court's perfunctory argument appears to

be claiming an inquiry notice theory. The reliance is misplaced.

Significantly, in Jones v. Flowers, the state argued that

an owner has "inquiry” notice that her property may be subject

to forfeiture if she fails to receive a property tax bill and

fails to pay property taxes. 547 U.S. at 231-32. Recognizing

that it is "common knowledge that property may become subject

to government taking when taxes are not paid,” this Court never

theless held that "inquiry” notice "does not excuse the govern

ment from complying with its constitutional obligation of notice."

Id. at 232. Jones is equally applicable here too.

Given the analysis above, it strains reason to understand

how reasonable jurists would agree that no due process violation

occured in the unlawful loss of Palmer's good time credits. See

Swarthout v. Cooke, 562 U.S. 216, 219 (2011)(per curiam)("whether

the procedures followed by the State were constitutionally

sufficient.").

(b) Whether reasonable jurists could debate the District

Court's procedural holding that the state habeas proceedings

were an adjudication on the merits and that exhaustion was

not satisfied is erroneous.

The lower court asserted without explanation that the

state habeas court's decision was an adjudication on the merits.

(E.g., App. at 7n.l). Precedent counsels otherwise.

Texas Court of Criminal Appeals Holdings on State Law.

The Texas Court of Criminal Appeals ("TCCA") has refused to

entertain the loss of good time credits or displinary proceedings.

Ex parte Palomo, 759 S.W. 2d 671, 674 (Tex. Crim. App. 1988)(en

banc).

It was not within the province of the district court to

reexamine Texas state-court determinations on state-law questions.

Bradshaw v. Richey, 546 U.S. 74, 76 (2005)(per curiam)("a state

court's interpretation of state law ... binds a federal court

sitting in habeas corpus"); see West v. AT&T, 311 U.S. 223, 236

(1940)("[T]he highest court of the state is the final arbiter of

what is state law when it has spoken, its pronouncement is to be

accepted by federal courts as defining state law[.]"). Out of an

abundance of caution, because Palmer did submit his claim to the

state court he will address those findings.

The TCCA's disposition was denied relief without written

order based on the findings of the trial court. (App. at 58).

The state habeas court's ultimate decision was "denied".

(App. at 1 & 4). Under Texas jurisprudence a denial often

signifies that the court addressed and rejected the merits of a

particular claim. Ex parte Thomas, 953 S.W. 2d 286, 288 (Tex.

Crim. App. 1997)(en banc). However, the Court issued a caveat

explaining that "[i]n determining the nature of a disposition,

...we look beyond mere labels to the substance of the action

taken. Id. at 289 (citations omitted).

Here, the state habeas court's Findings of Fact and

Conclusions of Lav/ held in pertinent part:

"13. Claims regarding good conduct time

are not cognizable in a writ of habeas

corpus. Ex parte Paloma, 759 S.W. 2d 671

(Tex. Crim. App. 1988).

16. The applicant fails to show his good

time credit claim is cognizable in the

instant proceeding."

(App. at 2). Therefore, the label of "denied" was not dispositive.

Ex parte Thomas, 953 S.W. 2d at 289. The state habeas court's

decision was resolved based on the holding in Ex parte Paloma

— unrelated to the merits. The TCCA's affirmance supports that

decision. See Ylst v. Nunnemaker, 501 U.S. 797, 804 (1991)

("silence implies consent" and courts affirm "without further

discussion when they agree; not when they disagree, with the

reasons given below.").

Because the Texas state court's did not reach the merits

of Palmer's due process claim, it is reviewed de novo. Cone v.

Bell, 536 U.S. 449, 472 (2009).

Exhaustion.

The district court has repetitively complained that Palmer's

claim was not exhausted in the state courts. (App. at’19, 148

n. 1 and 149 - 150). This argument is meritless.

As established above, the TCCA does not entertain the loss

of good time credits. Ex parte Paloma, 759 S.W. 2d at 674. And,

as further established above because there was no adjudication

on the merits, there was no failure to exhaust state court

remedies. See Ortega v. Stephens, 784 F.3d 250, 251 n. 1 (5th

Cir. 2015).

The lower court did acknowledge that Palmer exhausted his

adminstrative remedies. (App. at 11).

It merits mentioning, that Mr. Palmer concedes that his

initial assertion of the amount of good time credits were lost

was flawed. (App. at 8 n. 3). The lower court seized on Palmer's

error. (E.g., App. at 14.& 15). After further analysis of TDCJ's

policy of good time credits applicable to Palmer and repeated

review of the math, it was ascertained that the loss equaled

15 years, 5 months, and approximately 23 days, (e.g., App. at 19).

The district court continued to deny petitioner's calcula

tion; however, the court conspiciously refused to have the

official records entered into evidence. (App. at 151, 152 - 153).

Sowing needless confusion and doubt into the record appeared to

be a much more strategically desirable outcome for the district

court in this case.

Circling back to the above claims, it cannot be genuinely

debated that reasonable jurists would debate that there was an

adjudication on the merits or that exhaustion was required as

a matter of law.

Rule 59(e) notice of appeal is ineffective erroneous. And whether

reasonable jurists could debate the district court's procedural

ruling denying petitioner's Rule 59(e) motion.

Petitioner's Rule 59(e) Notice of Appeal was Effective.

The mistake that the Fifth Circuit ascribes to Mr. Palmer

is not the whole story. (App. at 24-25). The incorrect date

that the Court seizes on is not dispositive. The inadverent

oversight of the correct date on page 1, (App. at 116), was

appropriately corrected on page 2, (App. at 117), under the

Certificate of Service made under penalty of perjury. See Rule

3(d) of the Rules Governing Section 2254 Cases ("Timely filing

may be shown by a declaration in compliance with 28 U.S.C. § 1746

... which must set forth the date of deposit and state that firstclass postage has been prepaid.’’). The Court of Appeals desire to

ignore this fact makes its decision erroneous.

Petitioner's Rule 59(e) Motion did Establish Grounds for Relief.

The district court ordered Palmer's amendment stricken

from the record on August 13, 2024 on the legal fiction that

leave of court was not sought. (App. at 92). This is incorrect.

See United States ex rel. Willard v. Humana Health Plan of Tex.,

Inc., 336 F.3d 375, 387 (5th Cir. 2003)("A formal motion [to amend

is not always required, so long as the requesting party has set

forth with particularity the grounds for the amendment and the

relief sought[.]"). Mr. Palmer substantially complied. (App. at

27-28). The district court's erroneous legal conclusion was a

"manifest error." Guy v. Crown Equip. Corp., 394 F.3d 320, 325

(5th Cir. 2004)("Manifest error' is one that 'is plain and

indisputable, and that amounts to a complete disregard of the

controlling law.'"); Martin v. Franklin Capital Corp., 546 U.S.

132, 139 (2005)("[A] motion to [a court's] discretion is a motion,

not to its inclination, but to its judgment; and its judgment

is to be guided by sound legal principles."). A manifest error

of law or fact is a proper ground for Rule 59(e) relief. Demahy

v. Schwarz Pharma, Inc., 702 F.3d 177, 182 (5th Cir. 2012)(per

curiam).

The District Court's 59(e) Focus.

The district court primarly focused on "futility,” (App. at

22), but suggests that ’’undue delay” may be a factor in justify

ing.denial of amendment. (App. at 21). As established in this

Brief in Section I (a) [pp. 10-19] the district court’s futility

theory has no legal basis under this Court's well-settled

precedents.

The lower court's reasoning is further complicated under

Fifth Circuit precedent. In Mayeaux v. La. Health Serv. & Indem.

Co., 376 F.3d 420, 427 (5th Cir. 2004) the panel explicitly held

that "delay alone is an insufficient basis for denial of leave

to amend: The delay must be undue, i.e., it must prejudice the

nonmoving party or impose unwarranted burdens on the court.”

(emphasis in the original). Prejudice to respondent or unwarranted

burdens on the court are not part of the record. This argument

fails.

Petitioner's Verified Facts Overcoming District Court's

Statute of Limitations Dismissal Presented in Rule 59(e)

Motion.

Mr. Palmer's amendment, (App. at 27), presented in his Rule

59(e) motion, (App. at 95-97), confirmed that prison officials

impeded his ability to swiftly pursue his administrative remedies

by thwarting access to a time dispute resolution form. (App. at

32 citing pg. 41 at 11 18 citing pg. 47 & 49). This resulted in a

delay of 132 days. (id. at 32). Prison officials were presented

with Palmer's state writ application on January 27, 2023 for

mailing to the Harris County District Clerk ("HCDC"). (App. at

32 - 33 citing pg. 43 HU 24 - 26 citing pp. 51 - 53).

Under the AEDPA limitations one-year period the district

court claimed Palmer had until Februar 15, 2023 to file to be

timely. (App. at 11).

Palmer was led to beleive that his state writ was properly

sent by prison officials. (App. at 33 citing pg. 43 1126 citing

pg. 51). After the passage of only 76 days and no notice from

the state court, Palmer sent correspondence to the HCDC inquiring

as to the status. (App. at 34 citing pg. 44 11 31). An inquiry was

also sent to the Unit Mailroom too. (id. at 1130). It was

discovered no legal mail of his had been logged as outgoing on or

around January 27th. (Id.).

Mr. Palmer had an unqualified right to have his state post

conviction document mailed by prison officials. See Lewis v.

Casey, 518 U.S. 343, 350 (1996)(recognizing right "prohibiting

state prison officials from actively interfering with inmates'

attempts to prepare legal documents or file them.").

Palmer sent another state writ to the HCDC on May 16, 2023.

(App. at 33 citing pg. 44 1128).

On August 14, 2023 with no notice from the state courts of a

decision Palmer in diligent pursuit to prosecute his claim filed

for mandamus relief in the TCCA. (App. at 34 citing pg. 44 51 32).

It was subsequently determined that the TCCA denied relief

on August 23, 2023. (App. at 58). At no time prior to filing his

federal petition on November 3, 2023, (App. at 34 citing pg. 45

1134), did Palmer receive notice of the denial of his state post

conviction application. (Id.). However, the TCCA was legally

obligated to notify Palmer of their disposition of his claim.

Stroman v. Thaler, 603 F.3d 299, 302 (5th Cir. 2010)(per curiam)

Statutory tolling would be available for the hiatus between

August 23rd and November 3, 2023. Id.

Mr. Palmer's Entitlement to Equitable Tolling.

Given the impediments erected by prison officials and Palmer's

over all diligent pursuit of his rights outlined above, he should

be entitle to equitable tolling for the AEDPA limitations period

as the district court claimed he was subject to. See Menominee

Indian Tribe v. United States, 577 U.S. 250, 255 (2016)("a

litigant is entitled to equitable tolling of a statute of limit

ations only if the litigant establishes two elements '(1) that

he has been pursuing his rights diligently, and. (2) that some

extraordinary circumstance stood in his way and prevented timely

filing."') (citation omitted). Mr. Palmer's initial amendment

should have been allowed. Foman v. Davis, 371 U.S. 178, 182

(1962)("If the underlying facts or circumstances relied upon by

a plaintiff may be a proper subject of relief, he ought to be

afforded an opportunity to test his claim on the merits.").

Respondent’s 59(e) Artful-Pleading Response.

Respondent erroneously alleged: "Palmer made no mention of

seeking leave in his amended reply to the Director's answer,

ECF No. 38, let alone, 'expressly request[]' to amend[.]" (App.

at 107). Respondent's argument is a weakly asserted semantics

based challenge. Compare Mr. Palmer's actual pleading. (App. at

27-28). Respondent's complaint that merely because Palmer did

not use the magical words "seeks leave to amend" or some similar

incantation of words is not a valid reason to deny amendment.

See Erickson v. Pardus, 551 U.S. 89, 94 (2OO7)(per curiam)

(affording pro se litigants the benefit of liberal construction).

Respondent further grieved: "Palmer fails to cite any

authority in his 59(e) motion that allows the Court to consider

an amended response filed outside the circumstances described

in R. 15(a)(1)" or "15(a)(2)." (App. at 108). Respondent misstates

the record. Mr. Palmer urged that because his amendment contained

avoidance defenses under the AEDPA limitations period barring his

federal petition, that it was to be reviewed pursuant to Rule

15(a) citing Rosenblatt v. United Way of Greater Houston, 607 F.3d

413, 419 (5th Cir. 2010). (App. at 95).

Respondent’s Dilatory Motive Theory is Meritless.

Respondent claimed without citation to authority, that

Mr. Palmer’s amendment contained a "dilatory motive." (App. at

109). The Fifth Circuit has equated "dilatory motive" as showing

that the movant is "engaging in tactical maneuvers to force the

court to consider various theories seriatim." Dussouy v. Gulf

Coast Inv. Corp., 660 F.2d 594, 599 (5th Cir. 1981).

Respondent's complaint is troublesome and collapses after

further discussion of the facts. First, when Palmer filed his

amendment and response on March 1, 2024 to Respondent's Answer,

(App. at 70), he relied on Galbraith v. Hooper, 85 F.4th 273,

(5th Cir. 2023). Galbraith made clear two crucial factors

applicable to his case: (1) "when [a party] [i]s not contesting

the legality or validity of the sentence ... a petition must be

construed under Section 2241[.]" Id. at 281. (2) where a claim

"is properly brought under Section 2241 ... [t]here is no

statute of limitations on that claim, so it cannot be dismissed

as untimely." Id. at 284. Given these circumstances, Palmer

earnestly beleived that the later asserted avoidance defenses

were unnecessary to his initial reply.

To be sure, it is unreasonable to expect Mr. Palmer to

have omniscience regarding the lower court's subsequent flawed

reliance on Kimbrell v. Cockrell and Malchi v. Thaler to deny

his claim under §2241. (App. at 89-90). Neither was it reason

able to predict the subsequent withdrawl of Galbraith on March

19th.

The lower court having taken this fatal detour, is what

compelled Palmer to file his Amended Response to Respondent's

Answer. (App. at 27-28). Respondent's argument fails. See

Dussouy, 660 F.2d at 599 ("where the failure to include in the

complaint a known theory of the case arises not from an attempt

to gain tactical advantages but from a reasonable belief that

the theory is unnecessary to the case, denial of leave to amend

is inappropriate.").

There is no reason to beleive that reasonable jurists,

would not find the district court's assessment of this procedural

ruling debatable or wrong.

(d) Whether reasonable jurists could debate the district

court's procedural ruling that petitioner's loss of good time

credits was cognizable under § 2241.

The district court complained that Palmer's loss of good time

credits was not cognizable under § 2241 citing Kimbrell v. Cockrell,

311 F.3d 361, 362 (5th Cir. 2002) and Malchi v. Thaler, 211 F.3d

953, 956 (5th Cir. 2000). (App. at 89-90). Palmer argues that

the lower court's opinion ignores the Fifth Circuit Rule of

Orderliness and further draws on inapposite authority.

The Fifth Circuit holds that when confronted, by inconsistent

precedent it applies the rule of orderliness. Adams v. City of

Harahan, 95 F.4th 908, 913 n. 6 (5th Cir. 2024)(holding that one

panel of our court may not overturn another panel's decision,

absent certain changes in the law).

Circuit precedent provided that Palmer's loss of good time

credits was properly brought under 2241 not 2254. Spaulding v.

Scott, 1994 U.S. App. LEXIS 43033, *4 (5th Cir. 1994)(per curiam)

(unpublished); ^Johnson v. Scott, 1995 U.S. App. LEXIS 42764, *2,

3 (5th Cir. 1995)(per curiam)(collecting cases).

In Spaulding, he was contesting the loss of good time credits.

Id. at *2. The panel reasoned that because he was not challenging

the legality of his conviction or the validity of his sentence,

but instead focused on the manner in which his sentence is being

executed relief was appropriate under §2241 not §2254. Id. at *4

(citing United States v. Gabor, 905 F.2d 76, 77, 78 (5th Cir. 1990).

6 Unpublished opinions issued prior to January 1, 1996 are

precedential. United States v. Guerrero, 768 F.3d 351, 365

n. 12 (5th Cir. 2014).

In addition, the panel observed that a certificate of probable

cause was not required because the loss of good time credits

did not arise out of process issued by a state court. Id. at

*3 (citing 28 U.S.C. § 2253).

The district court's theory that Kimbrell bars Palmer's

claims under §2241 is without foundation. Kimbrell never takes

on the question of whether § 2241 versus § 2254 is the proper

vehicle for his displinary claim. He filed his petition under

2254 and only argued that the limitations applicable to his

2254 petition, 2244(d)(1), should not apply. 311 F.3d at 362.

Never is §2241 raised. Kimbrell could not have overruled

Spaulding, Johnson or the other authorities relied upon (sub

silento or otherwise) on a point that Kimbrell did not decide.

Webster v. Fall, 266 U.S. 507, 511 (1925)("Questions which

merely lurk in the record, neither brought to the attention of

the court nor ruled upon, are not to be considered as having

been so decided as to constitute precedents."); Ochoa-Salgado

v. Garland, 5 F.4th 615, 619 (5th Cir. 2021)("[T]he rule of

orderliness applies where (1) a party raises an issue and (2)

a panel gives that issue reasoned consideration.").

Kimbrell's further citation to Preiser v. Rodriguez,

411 U.S. 507, 511 (1973) is unhelpful in this case. The Court

did not grapple with the correctness of § 2241 versus § 2254.

The issue was the correct application of § 2254 as opposed to

42 U.S.C. § 1983. Id.

Malchi is a dud for the proposition for the district court

cites it for. Malchi's reliance on Preiser as previously

explained is totally inapposite. The opinion further attempts

to draw support from McGary v. Scott, 27 F.3d 181, 183 (5th Cir.

1994) and Story v. Collins, 920 F.2d 1247, 1251 (5th Cir. 1991).

Malchi, 211 F.3d at 956.

McGary, was decided on the basis of a subsequent writ. Id.

at 183, 185. Never is § 2241 argued in opposition to § 2254. Then,

too, Malchi1s reliance on Story for the proposition cited would

fail under the Fifth Circuit’s rule of orderliness, United States

v. Traxler, 764 F.3d 486, 489 (5th Cir. 2014)(collecting cases),

as earlier opinions have rejected Malchi *s interpretation of

Story. Johnson v. Scott, 1995 U.S. App. LEXIS 42764, at *2-3;

Johnson v. Scott, 1995 U.S. App. LEXIS 44123, * 1 (5th Cir. 1995);

Stewart v. Cain, 1995 U.S. App. LEXIS 41730, * 1 (5th Cir. 1995)

(per curiam). Again, the cases above are not precedent. Webster,

266 U.S. at 511; Garland, 5F.4th at 619.

The district court’s patently erroneous legal conclusion

further denied Palmer his avoidance defense to the statute of

limitations under §2241. Section 2241 does not include (1) the

one-year limitations period of § 2244(d)(1), which applies to

§2254; (2) the extremely deferential review standards of §§2254

(d)(1), (2); or (3) the limitation on successive petitions in

§ 2244(b)(2). See Martinez v. Caldewll, 644 F.3d 238, 242 (5th

Cir. 2011)(”[Section] 2254(d) was designed to impose additional

burdens on post-conviction habeas petitioners and to effect the

gatekeeping function of the [AEDPA]."). The panel expliclity

held that there is no "evidence that AEDPA or § 2254 were intended

to impact pre-trial detainess or §2241." Id. (emphasis added).

Reasonable jurists could undoubtedly debate that the

district court's procedural ruling that petitioner's loss of good

time credits claim was not cognizable under § 2241 and that

petitioner was further denied his statute of limitations defense

under § 2241.

II.

IS 28 U.S.C. § 2241 AVAILABLE BY A STATE PRISONER TO

CHALLENGE THE MANNER IN WHICH A SENTENCE IS EXECUTED

WITHOUT THE RESTRICTIONS OF THE AEDPA.

(a) Is § 2241 an available remedy for relief when a state

prisoner is only challenging the execution or duration of the

sentence.

Background on the Issue.

Recently, the Fifth Circuit has extended the erroneous

holding asserted by the district court in Kimbrell, 311 F.3d at

362 that "when a favorable outcome would affect the amount of

time a state prisoner served, [AEDPA] literally applies.” As

explained, Kimbrell does not remotely stand for the proposition

that the Fifth ;Circuit has now shoehorned it into.

Tenth Circuit Holding on § 2241.

The Tenth Circuit appears to be the only circuit post AEDPA

to decide the precise issue presented here. See Montez v. McKinna,

208 F.3d 862, 865 (10th Cir. 2000)(challenges to the validity of

a conviction or sentence are properly brought under § 2254 while

attacks on the execution of a sentence, such as the duration of

a sentence, are properly construed as §2241 actions).

Analysis of Precedent in Gabor.

Circling back to the Fifth Circuit precedent that extended

this precise issue to state prisoners was: Gabor, 905 F.2d at 77.

(ruling that "Gabor 'does not question the legality of his

conviction or the validity of the five-year federal prison term

imposed by the sentencing court. His attack instead focuses on

the extent to which his sentence has been executed ... [and]

must be addressed as a habeas corpus petition under — §2241.").

Id. at 78 (citation omitted).

The Gabor^panel further relied upon the Third Circuit's

explanation that "if [the prisoner] were to prevail on the merits,

the credits would apply against the sentence as imposed — they

cannot be implemented by tampering with or correcting the sentence

itself.” Id. (citing Soyka v. Alldredge, 481 F.2d 303, 304 (3rd

Cir. 1973)("a motion for credit of time calls for the computation

of the service I of a legally rendered sentence and is not directed

toward the sentence itself”). Id. at 305. The logic of that

conclusion is no less true in 2026.

Moreover, the decisions make clear that § 2241 relief was

not solely dependent upon the district court’s jurisdiction over

the prisoner or custodian.

The Fifth Circuit has ruled that TDCJ "is not a \stabe court'

and that its disciplinary decisions are not judgments." Propes v.

Quarterman, 573 F.3d 225, 230 (5th Cir. 2009)(citation omitted).

The Propes Court recognized (in harmony with Soyka) that ”[t]here

is one judgment that has placed Propes in prison. Included

within the results of that judgment are disciplinary proceedings

that occur while he is subject to the conviction." Id.

Statutory Construction.

In interpreting AEDPA, a court's task is to construe what

Congress has enacted, beginning with the language of the statute.

Duncan v. Walker, 533 U.S. 167, 172 (2001). The plain language of

the statute clLarly demonstrates that § 2254 is textually distinct

from § 2241: one explicitly mandates deference, the other does not.

In addition, Congress enacted AEDPA, as it related to habeas

reform, to ’’curb the abuse of the statutory writ of habeas corpus ”

and to ’’address problems of unnecessary delay." H.R. CONF. REP.

NO. 104-518 atilll (1996). Nothing in §2241, or its legislative

history, indicates that Congress perceived a problem, or a need

to address similar habeas abuses under § 2241.

It is settled that "where Congress includes particular

language in one section of a statute but omits it in another

section of the same Act, it is generally presumed that Congress

acts intentionally and purposely in the disparate inclusion or

exclusion." Duncan, 533 U.S. at 173 (citations omitted). That

principle provides strong evidence that the AEDPA’s review

standards should govern habeas petitions brought only under 2254.

Given this clear language, it would be improper to conclude

that what Congress omitted from § 2241 is nevertheless within

its scope. Gardner v. Collins, 27 U.S. 58, 93 (1829)("What the

legislative intention was, can be derived only from the words

they have used; and we cannot speculate beyond the reasonable

import of these words.").

Congress has demonstrated that it knows how to amend a

statute when circumstances deem it necessary. See Boumediene

v. Bush, 553 U.S. 723, 735 (2008) (amending § 2241 not once, but

twice). As discussed, just as Congress' choice of words is

presumed to be deliberate, so too are its structural choices.

See Gross v. FBL Fin. Servs♦, 557 U.S. 167, 177 n. 3 (2009).

And, ”[w]e assume that Congress is aware of existing law when

it passes legislation." Miles v. Apex Marine Corp., 498 U.S.

19, 32 (1990). Thus, where "the statutory language provides a

clear answer," the inquiry "ends there." Hughes Aircraft Co.

v. Jacobsen, 525 U.S. 432, 438 (1991).

Mr. Palmer urges that the text of § 2241 and precedent

does not push this Court in the direction that the gatekeeping

provisions of the AEDPA apply to § 2241 petitions that do not

challenged the underlying conviction or sentence. See United

States v. Reese, 92 U.S. 214, 221 (1876)("This would, to some

extent, substitute the judicial for the legislative department

of the government.").

CONCLUSION

For the foregoing reasons, petitioner Scott Palmer respect

fully moves that this Court reverse the decision of the United

States Court of Appeals for the Fifth Circuit, and provide such

other relief as he may show himself entitled to in law and

equity.

Respectfully submitted,

Dated: February 22, 2026

Scott Palmer #660844

Alfred Hughes Unit

3201 FM 929

Gatesville, TX 76597

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