Graves v Director

Filing 14

ORDER adopting 12 Report and Recommendation. Ordered that the application for the writ of habeas corpus be dismissed with prejudice. Ordered that Petitioner Graves be denied a certificate of appeal sua sponte. Signed by District Judge Thad Heartfield on 3/23/2019. (bjc, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
DONNIE GRAVES, #2061668,

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Petitioner,

CIVIL ACTION NO. 6:18-CV-00070-TH

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v.

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DIRECTOR, TDCJ-CID,

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Respondent.

ORDER ADOPTING REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
The above entitled and numbered civil action was referred to United States Magistrate
Judge John D. Love pursuant to 28 U.S.C. § 636. On March 8, 2019, the Magistrate Judge issued
his Report and Recommendation (Doc. No. 12), recommending the above-styled application for a
writ of habeas corpus be dismissed with prejudice and Petitioner Donnie Graves (“Petitioner”) be
denied a certificate of appeal sua sponte. Petitioner, through counsel, has submitted objections to
the Magistrate Judge’s Report and Recommendation. (Doc. No. 13.) Accordingly, the Court
conducts a de novo review of the portions of the Report and Recommendation to which objections
are made. 28 U.S.C. § 636(b)(1)(C).
In his original petition, Petitioner raised two grounds of error. (Doc. No. 1, at 6, 11–12.)
The first dealt with alleged due process violations occurring in the state district court when
processing Petitioner’s postconviction Article 11.07 application for a writ of habeas corpus. The
second alleged error dealt with alleged due process violations occurring in the Texas Court of
Criminal Appeals when adjudicating Petitioner’s Article 11.07 application for a writ of habeas
corpus. In his Report and Recommendation, the Magistrate Judge noted that state postconviction

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proceedings, such as habeas proceedings, are collateral to an original conviction, and accordingly
any alleged error occurring during state habeas proceedings do not present a constitutional error
entitling Petitioner to federal habeas review. (Doc. No. 12.) Accordingly, the Magistrate Judge
recommended denying Petitioner’s application for a writ of habeas corpus. (Doc. No. 12.)
In his objections, Petitioner argues that the Fifth Circuit has held that Texas’s mandatory
supervision scheme creates a constitutional expectancy of early release for eligible inmates, and
therefore, a protected liberty interest entitling an inmate to minimum due process protection. (Doc.
No. 13, at 3.) Petitioner argues that similar to Texas’s mandatory supervision scheme, an Article
11.07 application for a writ of habeas corpus also creates a protected liberty interest entitling a
petitioner to minimum due process protection. (Doc. No. 13, at 3.) Petitioner further argues that
some authority exists in support of his arguments and accordingly he should be granted a certificate
of appealability.
Petitioner’s arguments are contrary to well established Fifth Circuit law supporting that
alleged constitutional errors in state postconviction proceedings do not provide a basis for federal
habeas review. Kinsel v. Cain, 647 F.3d 265, 273 (5th Cir. 2011) (“We, as a federal appeals court
entertaining a federal habeas corpus application, are without jurisdiction to review the
constitutionality of [petitioner’s] state postconviction proceedings. Indeed, we are barred from
doing so by our ‘no state habeas infirmities’ rule.” (emphasis in original)); Trevino v. Johnson,
168 F.3d 173, 180 (5th Cir. 1999) (“Our circuit precedent makes clear that [petitioner’s] ‘claim
fails because infirmities in state habeas proceedings do not constitute grounds for relief in federal
court.’”); Nichols v. Scott, 69 F.3d 1255, 1275 (5th Cir. 1995) (noting that a state habeas
proceeding is collateral to an original conviction and accordingly errors in a state habeas
proceeding cannot serve as a basis for setting aside a valid original conviction).

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Accordingly, the Court ADOPTS the findings of the Magistrate Judge and OVERRULES
Petitioner’s objections. It is ORDERED that the above-styled application for the writ of habeas
corpus be DISMISSED WITH PREJUDICE. The Court FURTHER ORDERS that Petitioner
Graves be DENIED a certificate of appeal sua sponte.
SIGNED this the 25 day of March, 2019.

____________________________
Thad Heartfield
United States District Judge

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