Provost v. Stephens Director TDCJ-CID
Filing
12
Opinion and Order: Petitioner's petition for a writ of habeas corpus is DENIED. Further, for the reasons discussed, a certificate of appealability is DENIED. (Ordered by Judge Terry R Means on 11/30/2015) (ewd)
IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF TEXAS
FORT WORTH DIVISION
ROBERT JOSEPH PROVOST III,
Petitioner,
v.
WILLIAM STEPHENS, Director,
Texas Department of Criminal
Justice, Correctional
Institutions Division,
Respondent.
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Civil Action No. 4:14-CV-622-Y
OPINION AND ORDER
This is a petition for writ of habeas corpus pursuant to 28
U.S.C. § 2254 filed by Petitioner, Robert Joseph Provost III, a
state prisoner confined in the Correctional Institutions Division
of the Texas Department of Criminal Justice (TDCJ), against William
Stephens, director of TDCJ, Respondent.1
After having considered the pleadings, state-court records,
and relief sought by Petitioner, the Court has concluded that the
petition should be denied.
I. Factual and Procedural History
Petitioner is serving sentences of four years and ten years
respectively on his Jefferson County convictions for burglary of a
habitation and
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evading arrest in Case Nos. 11-12253 and 98697 for
At the time Petitioner filed this petition, he was confined at the
Bridgeport Unit of TDCJ, but he is currently confined at the Coffield Unit
located at 2661 FM 2054, Tennessee Colony, Texas 75884. The clerk of Court is
directed to update Petitioner’s address accordingly.
offenses occurring on June 28, 2011, and August 31, 2006. (Pet. 2,
ECF No. 1.)
The record reflects that on December 23, 2013, the
Texas Board of Pardons and Paroles (“the Board”) denied Petitioner
release to mandatory supervision pursuant to § 508.149(b) of the
Texas Government Code. (Resp’t’s Answer Ex. B, ECF No. 10-2.) The
record further reflects that on October 15, 2013, the Board gave
Petitioner notice that he was to be considered for release on
mandatory supervision and an opportunity to submit information in
support. But, on December 30, 2013, the Board notified Petitioner
in writing that he was denied supervised release, gave the reasons
for its denial, and informed Petitioner that his next review date
was set for December 2014.2
5.)
The
Board
denied
(Adm. R., WR-71,678-03, 65, ECF No. 9-
Petitioner’s
release
for
the
following
reasons:
One or more components indicated in each paragraph listed
below may apply, but only one is required.
9D1. The record indicates that the inmate’s accrued good
conduct time is not an accurate reflection of the
inmate’s potential for rehabilitation.
9D2. The record indicates that the inmate’s release
would endanger the public.
1D. The record indicates that the inmate has repeatedly
committed criminal episodes or has a pattern of
similar offenses that indicates a predisposition to
commit criminal acts when released; or the record
indicates that the inmate is a leader or active
participant in gang or organized criminal activity;
or the record indicates a juvenile or an adult
arrest or investigation for felony and misdemeanor
2
TDCJ’s website reflects that Petitioner was also denied release to
mandatory supervision on September 3, 2015, and that his next parole-review date
will be in September 2016.
2
5D.
offenses.
The record indicates unsuccessful periods of supervision on previous probation, parole, or mandatory
supervision that resulted in incarceration, including parole-in-absentia revocations.
(Id.)
Petitioner sought administrative relief via a request for
“Special Review” to no avail and filed two state habeas-corpus
applications, one for each conviction, challenging the Board’s
decision, which were denied without written order by the Texas
Court of Criminal Appeals on the findings of the trial court.
(Id. at 67 & Action Taken, ECF No. 9-4; Adm. R., WR-71,678-02,
Action Taken, ECF No. 9-2.)
This federal petition followed.
Petitioner claims the Board “mis-applied [the] law in the
manner [the] voting panel arrived at denying release to mandatory
supervision and erroneously denied his release “where
Petitioner’s files are void of the necessary findings required
under Texas mandatory supervision law to render a denial vote.”
(Pet. 6, ECF No. 1.)
According to Petitioner, the Board’s
decision is vague and ambiguous because–
The denial notice contains a list of multiple choice
components, most [of] which do not apply to
Petitioner’s personal predicament, never fully arriving
at a definite conclusion, leaving Petitioner only to
speculate. The Board offers nothing which would afford
inmate as to where he falls short and what he may need
to address upon his next review to hopefully gain a
favorable vote.
(Pet’r’s Mem. of Law 3, ECF No. 2.)
Petitioner also asserts that the Board misapplied the
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statute in a discriminatory and arbitrary fashion in light of the
fact that he satisfies the mandatory-supervision “requirements by
virtue of his accumulation of flat time, work time and good time
credits equaling to 100% of the totality of his sentence” and
that his “good conduct, academic achievements, and the
fulfillment of his Institutional Treatment Plan,” among other
“accomplishments,” while incarcerated substantiate his potential
and commitment to rehabilitate.
(Id. at 4-5.)
II. Rule 5 Statement
It appears that Petitioner has sufficiently exhausted his
state remedies and that the petition is neither time-barred nor
successive.
III. Discussion
The Texas mandatory-supervision statute provides that “a
parole panel shall order the release of an inmate who is not on
parole to mandatory supervision when the actual calendar time the
inmate has served plus any accrued good conduct time equals the
term to which the inmate was sentenced.”
508.147(a) (West 2012).
TEX GOV’T CODE ANN. §
However,
(b) An inmate may not be released to mandatory
supervision if a parole panel determines that:
(1) the inmate’s accrued good conduct
time is not an accurate reflection of the
inmate’s potential for rehabilitation; and
(2) the inmate’s release would endanger
the public.
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Id. § 508.149(b) (West Supp. 2014).
A habeas-corpus petitioner under 28 U.S.C. § 2254 must claim
violation of a federal constitutional right to be entitled to
relief.
Narvaiz v. Johnson, 134 F.3d 688, 695 (5th Cir. 1998).
A state prisoner does not have a federal constitutional right to
obtain release prior to the expiration of his sentence.
Greenholtz v. Inmates of Neb. Penal and Corr. Complex, 442 U.S.
1, 7 (1979).
Thus, any protected liberty interest in a release
prior to expiration of a prisoner’s sentence must arise from
state law.
The Fifth Circuit has held that Texas’s mandatory-
supervision scheme at the time of Petitioner’s offenses does
create a constitutional expectancy of early release for eligible
inmates and, as such, a protected liberty interest entitling an
inmate to minimum due-process protection.
See Teague v.
Quarterman, 482 F.3d 769, 776-77 (5th Cir. 2007); Malchi v.
Thaler, 211 F.3d 953, 957-58 (5th Cir. 2000) (citing Wolff v.
McDonnell, 418 U.S. 539, 557 (1974)); Ex parte Geiken, 28 S.W.3d
553, 558-60 (Tex. Crim. App. 2000).
Toward that end, the Texas Court of Criminal Appeals has
determined that, in this context, constitutional due process
requires that an eligible inmate be provided timely notice of the
specific month and year he will be considered for mandatorysupervision release and a meaningful opportunity to be
heard–i.e., an opportunity to tender or have tendered to the
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Board information in support of release.
Ex parte Geiken, 28
S.W.3d at 559-60; Ex parte Ratzlaff, 135 S.W.3d 45, 50 (Tex.
Crim. App. 2004).
Additionally, if release is denied, the inmate
must be informed in what respects he falls short of qualifying
for early release.
Ex parte Geiken, 28 S.W.3d at 560.
Petitioner was given timely notice that he would be
considered for mandatory-supervision release, an opportunity to
present or have presented on his behalf evidence to the Board in
support of his release, the reasons for the Board’s denial, and
the month and year he would be next considered.
Accordingly, he
received all the due process he was entitled to.
The Board is
not required to be more specific when stating the reasons for its
decision or to provide evidence in support of its decision.
Boss
v. Quarterman, 552 F.3d 425, 428-29 (5th Cir. 2008) (holding the
Due Process Clause does not require further explanation than the
“paragraphs cut verbatim from the Parole Board’s Directives”); Ex
parte Geiken, 28 S.W.3d at 557 (providing “[t]he early release
decision is necessarily subjective and cannot be limited to
rigidly defined factors”).
Nor has Petitioner shown that the
Board denied his release on mandatory supervision because of any
purposeful discrimination or any impermissible motive.
Johnson v. Rodriguez, 110 F.3d 299,
See
306-08 (5th Cir. 1997).
Accordingly, Petitioner has failed to state a federal claim upon
which relief can be granted.
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For the reasons discussed, Petitioner’s petition for a writ
of habeas corpus is DENIED.
Further, for the reasons discussed,
a certificate of appealability is DENIED.
SIGNED November 30, 2015.
____________________________
TERRY R. MEANS
UNITED STATES DISTRICT JUDGE
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