Tony Ray COLEMAN, Petitioner-Appellant, v. Doug DRETKE, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellee, 409 F.3d 665

ON PETITION FOR REHEARING EN BANC Before REAVLEY, BENAVIDES and PRADO, Circuit Judges. PER CURIAM: Because less than a majority of judges in active service have voted in favor of granting the petition for en banc rehearing, the petition is denied. To avoid confusion about our decision, we think it necessary that we write further to correct the mistakes of the accompanying dissent on the record and the law. I. The Record Tony Ray Coleman has never been convicted of a sex offense or otherwise found to be a sex offender.

He did not “stipulate” to sex offender conditions upon his release on January 17, 2001, as the dissent states. The parole board imposed those conditions a month after he had been released without allowing Coleman any opportunity to object. The conditions took effect by action of the parole board and Coleman was then required to acknowledge their imposition. The dissent repeats a new and unexplained assertion from the state’s petition for rehearing that the requirement for registration as a sex offender has been dropped.

Coleman was required by the board and his parole officer to register as a sex offender, and did register with the Austin police. Coleman remains imprisoned because he failed to submit to sex offender therapy. The dissent states that we do not challenge the conduct alleged in Coleman’s sexual assault indictment. As the state has never established the truth of those allegations in a criminal trial or other proceeding, we have no basis for assessing their veracity, and to assume them to be either true or false would be improper.

The dissent maintains that it was “pure conjecture” for the panel to rely on the website of the Texas Council on Sex Offender Treatment to determine that the state’s sex offender treatment is behavior modifying. Coleman cited to and relied on the same website in his brief and no contradiction was made by the state to that or to Coleman’s characterization of sex offender therapy, either in its appellate brief or at oral argument. The attempt to object for the first time on petition for rehearing comes late. See Arenson v. S. Univ. Law Ctr., 53 F.3d 80, 81 (5th Cir.1995).

Furthermore, we fail to see any merit to an objection to the panel taking judicial notice of the state agency’s own website. As the panel explained, the Texas Council is charged by statute with developing strategies and standards for the treatment of sex offenders in Texas. Tex. OcC.Code § 110.151 (Vernon 2004). There is no support in this record for the assertion in the state’s petition for rehearing that the treatment on which Coleman’s release was conditioned is anything other than the intrusive and behavior-modifying treatment outlined on the website.

The panel relied on the invasive and behavior-modifying nature of sex offender therapy. We said that, “due to its highly invasive nature, Texas’s sex offender therapy program is qualitatively different from other conditions which may attend an inmate’s release.” Coleman v. Dretke, 395 F.3d 216, 223 (5th Cir.2004). The dissent erroneously states that we have required pre-deprivation process whether or not invasive physical treatment is contemplated.

The dissent erroneously treats Coleman’s case as a mere challenge, to the nature of his confinement rather than a claim for release, as if mandatory supervision is a level of control different from parole. Under Texas law, mandatory supervision is statutorily mandated when the inmate has accrued a certain level of good conduct time, and the parole board has less discretion in denying ah inmate’s release on mandatory supervision than on parole. Tex. Gov’t Cobe §§ 508.001(5), 508.001(6), 508.141, 508.147(a) (Vernon 2004); Ex parte Retzlaff, 135 S.W.3d 45, 48-49 (Tex.Crim.App.2004).

The condition that Coleman reside in a halfway house until employed is also immaterial. The condition, like all conditions of release, is a constraint on the freedom of the releasee, but it does not alter the “quantum change in the level of custody” that occurs when an individual is allowed to live outside prison walls, whether on parole or mandatory supervision. See Wilkinson v. Dotson, — U.S. -, 125 S.Ct. 1242, 1250, 161 L.Ed.2d 253 (2005) (Scalia, J., concurring). II. The Law The dissent argues that the panel misapplied and extended Vitek v. Jones, 445 U.S. 480, 100 S.Ct. 1254, 63 L.Ed.2d 552 (1980).

And it argues that the panel failed to adhere to the deferential standard of review' applicable to state habeas proceedings under the Anti-terrorism and Effective Death Penalty Act (AEDPA). According to the dissent, Coleman failed to show that his situation is in line with the material facts of Vitek by establishing that the conditions placed on his release on mandatory supervision caused stigma and involved intrusive behavior-modification treatment. We have answered that contention above. The new argument that registration has been dropped from the case does not change matters.

Vitek does not require publication to establish stigma. In fact, the plaintiff in Vitek had not been required to register the fact of his classification as mentally ill, and the Court nowhere indicated that his' treatment providers would not keep his records confidential. , See Vitek, 445 U.S. at 483-86 & 492, 100 S.Ct. 1254.

The Court nevertheless found it “indisputable” that commitment to the mental hospital alone could cause “adverse social consequences to the individual” and stated that “[w]hether we label this phenomena ‘stigma’ or choose to call it something else[,] we recognize that it can occur and that it can have a very significant impact on the individual.” Id. at 492, 100 S.Ct. 1254 (internal quotation marks omitted).

Whether or not Coleman must now list his name on an official roster, by requiring him to attend sex offender therapy, the state labeled him a sex offender — a label which strongly implies that Coleman has been convicted of a sex offense and which can undoubtedly cause “adverse social consequences.” See id.; Neal v. Shimoda, 131 F.3d 818, 829 (9th Cir.1997) (“We can hardly conceive of a state’s action bearing more ‘stigmatizing consequences’ than the labeling of a prison inmate as a sex offender.”); Vander Zee v.

Reno, 73 F.3d 1365, 1369 (5th Cir.1996) (stating that a statement causes stigma if it is both false and implies that the plaintiff is guilty of serious wrongdoing). The stigma aspect of the case is thus not mooted by the state’s decision to remove Coleman from its sex offender registry. The facts of the present case are in line with Vitek’s stigma element. As explained above, the state’s imposition of sex offender status and therapy as conditions of Coleman’s release fits squarely within the material facts of Vitek, and the panel’s decision was thus a proper exercise of deference under AED-PA.

The dissent claims that application of Vitek to sex offender conditions cannot be clearly established under AEDPA because courts have found that the law in this area is not clearly established for purposes of qualified immunity. To support this argument, the dissent states that the AEDPA standard and the qualified immunity standard are logically similar. The dissent’s reliance on qualified immunity analysis is misplaced. Habeas law and the law of qualified immunity are “doctrinally distinct.” Williams v. Taylor, 529 U.S. 362, 380 n. 12, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000) (Stevens, J.).

For qualified immunity purposes, law is clearly established if it would be clear to a reasonable official that her conduct was unlawful in the situation she confronted. Saucier v. Katz, 533 U.S. 194, 202, 121 S.Ct. 2151, 150 L.Ed.2d 272 (2001). For AEDPA purposes, clearly established federal law is “whatever would qualify as an old rule under our Teague jurisprudence,” as long as the old rule was decided by the Court. Williams, 529 U.S. at 412, 120 S.Ct. 1495.

Under Teag-ue, a new rule is one that “breaks new ground or imposes a new obligation on the States or the Federal Government” or that is “not dictated by precedent existing at the time the defendant’s conviction became final.” Teague v. Lane, 489 U.S. 288, 301, 109 S.Ct. 1060, 103 L.Ed.2d 334 (1989) (emphasis in original). The two standards thus require distinct analyses and cannot be conflated merely because they employ common terminology.

Williams, 529 U.S. at 380 n. 12, 120 S.Ct. 1495 (Stevens, J.) (“We are not persuaded by the argument that because Congress used the words ‘clearly established lav/ and not ‘new rule,’ it meant in [28 U.S.C. § 2254(d)(1) ] to codify an aspect of the doctrine of executive qualified immunity rather than Teague’s retroactivity bar .... Congress had Teague — and not any unrelated area of our jurisprudence — specifically in mind in amending the habeas statute ....

We will not assume that in a single subsection of an amendment entirely devoted to the law of habeas corpus, Congress made the anomalous choice of reaching into the doetrinally distinct law of qualified immunity[.]”) (emphasis added). Vitek imposed an obligation on the states to provide process before imposing stigmatizing classifications and concomitant behavior modification therapy on individuals in their custody. The panel opinion does nothing more. The dissent implies that the Supreme Court’s decision in Connecticut Department of Public Safety v.

Doe, 538 U.S. 1, 123 S.Ct. 1160, 155 L.Ed.2d 98 (2003), illustrates the Court’s unwillingness to afford due process protection to “sex offenders” — a term the dissent appears to define as anyone who has been charged with a sex offense, even if never convicted on that charge. As the panel opinion noted, Doe is distinguishable. Coleman, 395 F.3d at 223 n. 30. First, the Doe plaintiff challenged sex offender registration alone — the case did not involve behavior modification therapy, and thus fell outside Vitek’s holding.

Second, the plaintiff sought a hearing to determine his current dangerohsness and not his status as a sex offender — he had been convicted of an offense enumerated in the registration statute. Because application of the registration statute turned on conviction rather than current dangerousness, the Court found that the plaintiff was not entitled to the hearing he sought regardless of whether the statute deprived him of a liberty interest; whether or not the plaintiff was currently dangerous was immaterial under the statutory scheme. Doe, 538 U.S. at 7, 123 S.Ct. 1160.

The Court emphasized that the plaintiff in Doe had been convicted of an enumerated offense, and thus “ha[d] already had a procedurally protected opportunity to contest.” Id.; see also Gwinn v. Awmiller, 354 F.3d 1211, 1223-24 & n. 6 (10th Cir.2004) (holding that

summary judgment was inappropriate on a procedural due process claim brought by an individual never convicted of a sex offense based on the state’s requirement that he register as a sex offender upon release from prison, and stating that “Doe ... does not foreclose this due process claim” because the plaintiff, unlike the plaintiff in Doe, had not been convicted of a sex offense and alleged that he had had no other procedure through which to contest).

In the present case, we have a petitioner who has never been convicted of an offense enumerated in Texas’s registration statute who challenges not only the state’s imposition of sex offender status on him but also its requirement that he undergo invasive behavior-modification therapy. On those facts, Vitek, and not Doe, is the relevant Supreme Court authority. Finally, the dissent suggests that Coleman was required to bring his case under 42 U.S.C. § 1983 as a challenge to his conditions of confinement rather than as a habeas claim seeking his release.

In so arguing, the dissent implies that release from prison to mandatory supervision — the remedy Coleman seeks — is merely a change in the condition of Coleman’s confinement rather than a release from custody for habeas purposes. We have answered that above, but it is well established that release from physical confinement in prison constitutes release from custody for habeas purposes, even though the state retains a level of control over the releasee. Preiser v.

Rodriguez, 411 U.S. 475, 487-88, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973) (stating that suits attacking the duration of physical confinement are within the core of habeas corpus); see Malchi v.

Thaler, 211 F.3d 953, 957-58 (5th Cir.2000) (holding, in a habeas case, that Texas’s pre-1996 mandatory supervision scheme created a constitutional expectancy in early release, but denying relief where the connection between the alleged injury and the timing of petitioner’s release was too speculative); Retzlaff, 135 S.W.3d at 48-49 (holding, in a habeas case, that Texas’s posW1996 mandatory supervision scheme creates a liberty interest in early release).

Even if Coleman’s challenge- could be viewed as a condition of confinement case, the dissent’s argument that he must sue under § 1983 is premised on the notion that § 1983 is the exclusive avenue by which to attack conditions of confinement. While the Supreme Court has held that certain claims must be brought under the habeas statute rather than § 1983, neither the Supreme Court nor this court has held that certain claims must be brought under § 1983 rather than habeas. Docken v. Chase, 393 F.3d 1024, 1030 n. 6 (9th Cir.2004); see Preiser, 411 U.S. at 499, 93 S.Ct. 1827.

In Preiser, the Court held that habeas is exclusive of § 1983 in certain situations because the habeas statute is more specific than § 1983. Preiser, 411 U.S. at 489-90, 93 S.Ct. 1827. Preiser’s rationale does not support the proposition that the more general § 1983 should be exclusive of the more specific habeas in some situations. See Preiser, 411 U.S. at 504, 93 S.Ct. 1827 (Brennan, J., dissenting) (“[E]ven under the [majorityj’s approach, there are undoubtedly some instances where a prisoner has the option of proceeding either by petition for habeas corpus or by suit under § 1983.”). III.

Conclusion For the reasons given in the panel decision, Coleman v. Dretke, 395 F.3d 216 (5th Cir.2004), and because the sexual offender conditions of Coleman’s mandatory supervision impacted his liberty interest and were imposed without due process, the revocation of his release on mandatory supervision is set aside. The petition for rehearing is denied.

The mandate shall issue instanter, remanding to the district court with instructions to issue the writ to order Coleman’s release under its original terms unless the state promptly conducts further proceedings justifying Coleman’s confinement pursuant to state law and consistent with the opinion of this court.