Did the Fifth Circuit err in applying a 'Fifth Circuit Principle' that discretionary parole rules do not violate ex post facto clause

QUESTIONS PRESENTED The Court of Appeals has adopted and applied a “Fifth Circuit Principle" that “changes in the discretionary. rules, affecting. : » parole suitability cannot violate the ex post facto clause". A principle cited and applied in State and Federal courts within the Fifth circuit; Which has led to the Fifth Circuit Court (it: self) issuing conflicting legal and evidentiary review standards , on identical question for review. The First and Second Questions presented for review are: . ; lst) Did the Fifth Circuit err by applying a "circuit principle" that "rules affecting eligibility may violate the [ex post facto] . clause but discretionary rules affecting suitability do not"; (i. e-, in light of "Principle" announced in GARNER v-JONES, 120 S.Ct 1362,1369-70) ? : 2nd) Did the Fifth Circuit err by different panels imposing two different legal and evidentiary standards on identical questions presented for review; (i.e., where. two previous panels demanded concise evidence of Parole Board Member Designation based upon Texas Parole statute or Board Policy; And a third Panel demanded : evidence of "randomly selected panel" not a part of Texas Parole Statutes or Board's Policy/practices) ? . Petitioner was convicted’.under a 1965-1975 Texas Parole Board 3-Member suitability determination statute. He has committed no acts during his 43% years of incarceration to warrant a change in . his legal status. Texas Board of Pardons and Paroles conducted . QUESTIONS PRESENTED cont'd. his 2013 review process under a retroactive 1993-2004 statute which was also replaced by. another statute in 2005. The 2005 . Version (a) removed Petitioner's offense from the Face of the statute to eliminate parolability; and (b) its subsections specifically instructs: "an offense committed before the effective date ; of This ACT is covered by the Law in effect when the offense was committed". Petitioner achieved the parole suitability requirements imposed under his offense date statute during his 2013 re‘view process. The Third and Fourth Questions presented are: 3rd) Did the Fifth Circuit err in failing to conduct “de novo co . review" of COA Briefed Issue that retroactive statute had been . repealed and rendered inapplicable to Petitioner's 1975 offense ? . Ath) Did the Fifth Circuit err in declaring ex post facto violat tion did not occur when the Board used retroactive statute to prolong prison stay by denying prisoner parole suitability achievement under statutory requirements in effect on his offense date; Where prisoner can show under implementation of "new rule" by the Board's (own) “Member's designation Policy’ he would have achiev: , ed parole suitability had his offense date rule been applied; (ie., Where prisoner under facts particular to his case made objective evidentiary showing of lesser period of incarceration , ultilizing analytical tools instructed by GARNER, 120 S.Ct.@. : 1369-70)? li , PARTIES Delain Kyles is a prisoner in custody of : the Texas Department of Criminal Justice Institutional Division (or TDCJ-ID); located at the Ramsey Prison Unit, 1100 FM 655, Rosharon, Texas 77583; Within the Angleton Regional Office area of the Texas Board of Pardons and Paroles Davis is the Director of TDCJ-ID, Headquartered at P.O. Box 99, Huntsville, Texas 77340. ‘ 1 : : . A un-named entity of interest is the Texas Board of ; Pardons and Paroles, chaired by David Gutierrez , : Head-quartered at P.O. Box 13401, Austin, Teaxs 78711-3401. lAny perSon (prisoner or citizen) of the United States that may be arbitrarily subjected to burdens of a repealed statute by a State Agency exercising discretion is a potential party of interest in this case. . . iii