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Click here for the full text of this decision FACTS:Texas prisoner Willie Williams, proceeding pro se, filed suit under 42 U.S.C. �1983 against various state officials having authority over the parole system. He sought damages and injunctive relief related to defendants’ imposition, without procedural due process, as a condition of parole that he register as a sex offender under the Sex Offender Registration Act (SORA) and receive sex-offender therapy, even though he was never convicted of a sex offense. The district court concluded that defendants violated Williams’ right to due process when it imposed these conditions on his parole in 1998, but it denied damages after concluding that qualified immunity shielded defendants because Williams’ right was not clearly established law at that time. It also denied as moot Williams’ request for an injunction, noting that Williams was back in prison for an unrelated parole violation and defendants had ceased requiring parolees not convicted of sex offenses to register under SORA. The district court did, however, issue a declaratory judgment stating that some process was required before requiring registration of parolees not convicted of a sex offense. After the district court’s decision, the 5th U.S. Circuit of Appeals decided Coleman v. Dretke (Coleman I), 395 F.3d 216 (5th Cir. 2004) and Coleman v. Dretke (Coleman II), 409 F.3d 665 (5th Cir. 2005), agreeing that people like Williams were entitled to some process before being required to register or pursue therapy. Williams appealed. HOLDING:Addressing first the liability of defendants, the court first stated that the fundamental question before it is whether the state of the law gave defendants fair warning that their conduct was unconstitutional. Because at the time there was no binding precedent clearly establishing the right, the court reviewed other decisions at the time to determine if they indicated a “consensus of cases of persuasive authority such that a reasonable officer could not have believed that his actions were lawful.” The court noted that in 1998 only the 9th U.S. Circuit Court of Appeals had recognized a non-sex offender’s right against mandatory sex-offender registration and treatment as a condition of parole. Moreover, another 9th Circuit panel that same year declined to recognize a non-sex offender’s right against registration under a community notification statute as a condition of parole. The court stated it could not conclude from this that Williams’ right was clearly established. Williams also pointed to Kirby v. Siegelman, 195 F.3d 1285 (11th Cir. 1999) and Chambers v. Colorado Department of Corrections, 205 F.3d 1237 (10th Cir. 2000). The district court observed that both cases were decided after Williams was required to register in 1998. Williams counters that because defendants forced him to comply with the conditions until his re-incarceration in 2001, these cases are relevant. The court found, however, that the district court correctly concluded they did little to render Williams’ right clearly established. The court stated that Coleman I and Coleman II, decided after the district court’s judgment, did not change the result. Although the court in Coleman I held the right “clearly established Federal law” under the Anti-Terrorism and Effective Death Penalty Act (AEDPA), the panel on petition for rehearing on banc in Coleman II noted that the AEDPA and qualified immunity standards differed, despite using the same terms. The court stated that this made sense, given the different goals of AEDPA and qualified immunity. “The former ensures respect for state court judgments, mandating that we defer to judicial decisions by trained lawyers; the latter shields state officials, generally untrained in the law, for their discretionary acts.” While Williams’ right, the court stated, may have been clearly established under AEDPA in 1998 (or 2001), it was not clearly established such that defendants should be subjected to liability for their reasonable belief in the legality of their actions. The court denied Williams’ request for an injunction to stop the state from requiring him to register or seek sex-offender therapy in the future. The court found that Williams’ evidence was not properly before this court. The court also noted that the board of pardons has stated that in the future it will not require prisoners like Williams to register under SORA. This, the court stated, effectively moots the request for injunctive relief. The court further stated that if the board of pardons does compel Williams to register or seek sex-offender therapy without providing due process, Williams can seek an injunction in the district court at that time. OPINION:Per curiam; Higginbotham, Dennis, and Clement, J.J.

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