Stevenson v. Director TDCJ-CID

Filing 9

MEMORANDUM ORDER overruling petitioner's objections and adopting the magistrate judge's 5 Report and Recommendation. A certificate of appealability shall not be issued. Signed by Judge Thad Heartfield on 10/16/2012. (bjc)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
BEAUMONT DIVISION
PETRICK STEVENSON

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VS.

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DIRECTOR, TDCJ-CID

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CIVIL ACTION NO. 1:11cv491

MEMORANDUM ORDER OVERRULING PETITIONER'S OBJECTIONS AND
ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
Petitioner Petrick Stevenson, an inmate confined at the Stiles Unit of the Texas Department
of Criminal Justice, Correctional Institutions Division, proceeding pro se, brought this petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254.
The court referred this matter to the Honorable Zack Hawthorn, United States Magistrate
Judge, at Beaumont, Texas, for consideration pursuant to applicable laws and orders of this court.
The Magistrate Judge recommends the petition be denied.
The court has received and considered the Report and Recommendation of United States
Magistrate Judge filed pursuant to such order, along with the record, pleadings and all available
evidence. Petitioner filed objections to the magistrate judge's Report and Recommendation.
The court conducted a de novo review of the objections in relation to the pleadings and the
applicable law. See FED. R. CIV. P. 72(b). After careful consideration, the court concludes
petitioner's objections should be overruled. Under Texas law, a prisoner may be released early on
parole, which is a discretionary and conditional release where the prisoner serves the remainder of
his sentence under the control of the pardons and paroles division. Madison v. Parker, 104 F.3d 765,
768 (5th Cir. 1997). It is entirely speculative whether an inmate will be released on parole, therefore,
there is no constitutional expectancy of parole in Texas. Id. There are no procedural due process
protections for procedures unrelated to protected liberty interests, including the Texas parole
procedures. See Johnson v. Rodriguez, 110 F.3d 299, 308-09 (5th Cir. 1997). “‘[N]either habeas

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nor civil rights relief can be had absent the allegation by a plaintiff that he or she has been deprived
of some right secured to him or her by the United States Constitution or the laws of the United
States.’” Orellana v. Kyle, 65 F.3d 29, 31 (5th Cir. 1995) (quoting Hilliard v. Bd. of Pardons and
Paroles, 759 F.2d 1190, 1192 (5th Cir. 1985)). Accordingly, petitioner’s claims are without merit
and should be denied.
Additionally, petitioner failed to exhaust available state habeas remedies prior to filing this
petition. A review of the petition reveals that petitioner has not presented his claims to the Texas
Court of Criminal Appeals. As the highest state court has not had an opportunity to review
petitioner’s claims, the petition should be dismissed for failure to exhaust such remedies.
Accordingly, petitioner’s claims should be dismissed.
Furthermore, petitioner is not entitled to the issuance of a certificate of appealability. An
appeal from a judgment denying federal habeas corpus relief may not proceed unless a judge issues
a certificate of appealability. See 28 U.S.C. § 2253; FED. R. APP. P. 22(b). The standard for granting
a certificate of appealability, like that for granting a certificate of probable cause to appeal under
prior law, requires the movant to make a substantial showing of the denial of a federal constitutional
right. See Slack v. McDaniel, 529 U.S. 473, 483-84 (2000); Elizalde v. Dretke, 362 F.3d 323, 328
(5th Cir. 2004); see also Barefoot v. Estelle, 463 U.S. 880, 893 (1982). In making that substantial
showing, the movant need not establish that he should prevail on the merits. Rather, he must
demonstrate that the issues are subject to debate among jurists of reason, that a court could resolve
the issues in a different manner, or that the questions presented are worthy of encouragement to
proceed further. See Slack, 529 U.S. at 483-84. Any doubt regarding whether to grant a certificate
of appealability is resolved in favor of the movant, and the severity of the penalty may be considered
in making this determination. See Miller v. Johnson, 200 F.3d 274, 280-81 (5th Cir.), cert. denied,
531 U.S. 849 (2000).
Here, petitioner has not shown that any of the issues raised by his claims are subject to debate
among jurists of reason. The factual and legal questions advanced by petitioner are not novel and
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have been consistently resolved adversely to his position. In addition, the questions presented are
not worthy of encouragement to proceed further. Therefore, petitioner has failed to make a sufficient
showing to merit the issuance of a certificate of appealability. Accordingly, a certificate of
appealability shall not be issued.

ORDER
Accordingly, petitioner's objections are OVERRULED.

The findings of fact and

conclusions of law of the magistrate judge are correct and the report of the magistrate judge is
ADOPTED. A final judgment will be entered in this case in accordance with the magistrate judge's
recommendations.
SIGNED this the 16 day of October, 2012.

____________________________
Thad Heartfield
United States District Judge

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