v. Ellason et al

Filing 22

Memorandum Opinion and Order..petitioner's petition for writ of habeas corpus pursuant to 28 USC 2254 is denied. COA denied. (Ordered by Judge John McBryde on 1/11/2018) (wrb)

U.S. DISTRICT COURT
NORTIIBRN DISTRICT OF TEXAq

FILED

~ , ,·~2-018__,l
J
CLERK, U.S. DISTRICT COURT

IN THE UNITED STATES DISTRICT C URT
FOR THE NORTHERN DISTRICT OF TE AS
FORT WORTH DIVISION
THOMAS DEWAYNE ELLASON,
Petitioner,

v.
LORIE DAVIS, Director,
Texas Department of Criminal
Justice, Correctional
Institutions Division,
Respondent.

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[

NO. 4:16-CV-1032-A

MEMORANDUM OPINION
AND

ORDER

This is a petition for writ of habeas corpus pursuant to 28
U.S.C.

§

2254 filed by petitioner, Thomas Dewayne Ellason, a

state prisoner confined in the Correctional Institutions Division
of the Texas Department of Criminal Justice (TDCJ) , against Lorie
Davis, director of TDCJ, Respondent. 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

The factual background relevant to this case was set out in
the district court's opinion and order in petitioner's prior
federal habeas-corpus action as follows:
Petitioner is serving a life sentence on his 1987
Tarrant County conviction for capital murder in Case
No. 0295331D for an offense occurring on October 28,
1986. Petitioner was originally sentenced to death, but
his sentence was reformed to life imprisonment.
Petitioner has never been released from TDCJ on parole

or mandatory supervision. He is ineligible for
mandatory supervision and has been denied parole on
three [previous] occasions.
(Op. and Order, Ellason v. Davis, No. 4:15-CV-510-Y, doc. 12.)
By way of the instant petition, petitioner challenges the
Board's July 18, 2016, denial of parole.

(Pet. 2,

6-7, doc. 1.)

He asserts that the Texas Board of Pardons and Paroles (the
Board) based its denial on the following reason:
2D. The record indicates the instant offense has
elements of brutality, violence, assaultive behavior,
or conscious selection of victims vulnerability
indicating a conscious disregard for the lives, safety,
or property of others, such that the offender poses a
continuing threat to public safety.
(Pet' r's Mem. 3, doc. 2.) Petitioner was notified of the denial
on July 19, 2016.

(Resp't' s Answer, Ex. A, doc. 13.) His next

parole review date will be in June 2023.

(Id.)

II. Issues

In an exhaustive, single-spaced memorandum, petitioner
claims the BOP has abused its discretion by denying him release
on parole in violation of the Due Process, Equal Protection,
Double Jeopardy, Confrontation, and Ex Post Facto Clauses of the
Texas and United States Constitutions and the Supreme Court's
decision in Brady v. Maryland. According to petitioner, he has a
protected liberty interest in release on parole, but the Texas
Board of Pardons and Paroles

(the Board) continues to violate his

rights by failing to conduct an impartial, unbiased hearing.
regarding his suitability; denying him a meaningful opportunity

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to be heard, to review the contents of his parole file and
correct any errors or "false entries," to present evidence and
witnesses in his favor,

to be notified of the evidence and

witnesses to be used against him, and to be present during the
interview with the commissioners assigned to his case; denying
him parole each time based on the same "blanket" reason while
ignoring "the many positive aspects of his incarceration";
failing to provide "some evidence" to support the denials;
failing to consider his good and work time when making its
determination; accepting the opinion of a parole counselor;
giving him a 7-year set off; punishing him twice for the same
criminal offense by denying parole based on the nature of the
offense or past criminal record; and applying parole laws not in
effect when he committed the offense.
2.)

(Pet' r's Mem. 2-13, doc.

Petitioner further claims that prison officials have violated

his rights under the Cruel and Unusual Punishment Clause, the
Rehabilitations Act, and the American with Disabilities Act by
failing to consider and allow him to take "rehabilitative class"
and "therapeutic community" programs for drug addiction, denying
him medical treatment for his serious medical needs, and
discriminating against him because of his disabilities.

(Id. at

13-22.) Additionally, petitioner claims that, with his flat time
and good time, he is entitled to release on mandatory supervision
under the law in effect when he committed the crime based on a

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life expectancy of 60 years.

(Id. at 11-12.) Finally, in a

supplemental memorandum, petitioner claims that the Texas
legislature violated the separation of powers doctrine by placing
authority with the Board, instead of a judge, to evaluate and
make decisions regarding a prisoner's potential for
rehabilitation and whether his release would endanger the public.
(Pet'r's Suppl. Mem. 5-7, doc. 17.)
Petitioner raised one or more of the claims in a state
habeas-corpus application, and the state habeas court entered the
following legal conclusions relevant to his claims:
3.

Release to parole is within the sound discretion
of the parole board.

4.

Texas prison inmates have no protected liberty
interest that is protected by due process.

5.

Texas law does not create a liberty interest that
is protected by due process.

6.

Because there is no liberty interest in obtaining
parole, an applicant cannot attack the
constitutionality of procedural ways of parole
decision.

7.

"The parole panel has great discretion in the
regular parole review process."

8.

[Petitioner] has failed to prove that the Board
denied him liberty.

9.

[Petitioner] has failed to prove that he can
attack the constitutionality of the parole
procedures.

10.

[Petitioner] has failed to prove that he has a
liberty interest and constitutional expectation of
parole.

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11.

[Petitioner] has failed to prove that he has a due
process right in release to parole.

17.

"A prisoner who is not on parole, except a person
under sentence of death, shall be released to
mandatory supervision by order of the board when
the calendar time he served plus any accrued good
conduct time equal the maximum term to which he
was released [sic}. " 1

18.

"Under a literal reading of this law, it is
mathematically impossible to determine a mandatory
supervision release date on a life sentence
because the calendar time served plus any accrued
good conduct time will never add up to life.

19.

Because [petitioner] was sentenced to life in
prison, he cannot be released to mandatory
supervision.

20.

[Petitioner] has failed to prove that he should be
eligible for release to mandatory supervision.

(State Habeas R. 97-99, doc. 15-8 (citations omitted)
in original) . 2 )

(emphasis

In turn, the Texas Court of Criminal Appeals

denied petitioner's state application based on the habeas court's
findings.

(Action Taken, doc. 15-6.) Based on the discussion

below, the state courts' conclusions are not contrary to, or an
unreasonable application of, clearly established federal law as
determined by the Supreme Court of the United States. 28 U.S.C.

§

1
The correct wording of the statute is: "A prisoner who is not on parole,
except a person under sentence of death, shall be released to mandatory
supervision by order of the board when the calendar time he served plus any
accrued good conduct time equal the maximum term to which he was sentenced." Act,
of May 30, 1977, 65th Leg., R.S., ch. 347, § 15, 1977 Tex. Gen. Laws. 925, 927
(emphasis added).
2

"State Habeas R." refers
proceeding in WR-79,456-03.

to

the

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record

of petitioner's

state

habeas

2254(d). Consequently, petitioner is not entitled to federal
habeas relief.
III. Discussion

A habeas corpus petitioner under 28 U.S.C.

§

2254 must claim

violation of a federal constitutional right to be entitled to
relief.

Id.

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2254(a). Thus, to the extent petitioner claims the

Board's denial violates Texas laws or the Texas Constitution, he
fails to state a claim(s) cognizable on federal habeas review.
Sharp v. Johnson, 107 F.3d 282, 290 (5th Cir. 1997); Pemberton v.
Collins, 991 F. 2d 1218, 1223 (5th Cir. 1993).
A. Due Process and Equal Protection of the Law
Petitioner makes various claims throughout his pleadings
that his rights under the Due Process Clause and/or Brady v.
Maryland, 373 U.S. 83 (1963), were violated and that the Board
abused its discretion by acting arbitrarily with respect to its
decision.

(Pet' r's Mem. 2-10, doc. 2; Pet' r's Suppl. Mem. 1-4,

doc. 17.) The Supreme Court has recognized that states have no
duty to establish a parole system and prisoners have no
constitutional right to be released before the expiration of a
valid sentence. Board of Pardons v. Allen, 482 U.S. 369, 378 n.10
(1987)

(providing "statutes or regulations that provide a parole

board 'may' release an inmate on parole do not give rise to a
protected liberty interest"); Greenholtz v. Nebraska Penal
Inmates, 442 U.S. 1, 11 (1979)

(providing statutes holding out

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"the possibility of parole provides no more than a mere hope that
the benefit will be obtained" and do not trigger due process
protections). In light of this authority, the Fifth Circuit has
recognized repeatedly that the Texas parole statutes create no
constitutional right to release on parole because they encourage
no expectancy of early release. See Williams v. Briscoe, 641 F.2d
274, 277

(5th Cir. 1981), cert. denied, 454 U.S. 854

(1981).

Thus, contrary to petitioner's assertion, neither Texas laws
nor the United States Constitution creates a liberty interest in
parole. Greenholtz, 442 U.S. at 7. Because Texas inmates have no
protected liberty interest in parole, they cannot have a liberty
interest in parole consideration or other aspects of parole
procedures. Johnson v. Rodriguez, 110 F.3d 299, 308 (5th Cir.),
cert. denied, 552 U.S. 995 (1997)

(stating that "because Texas

prisoners have no protected liberty interest in parole they
cannot mount a challenge against any state parole review
procedure on procedural (or substantive) Due Process grounds")
Therefore, petitioner has no claim for violation of due process
in the procedures the Board uses to make a parole decision,
access to and examination of his parole file, accurate
information in the file, the guidelines affecting his suitability
for parole, the frequency of parole reviews, or the factors
considered by the Board to reach its decision.

Portley v.

Grossman, 444 U.S. 1311, 1312-13 (1980); Rodriguez, 110 F.3d at

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308 n.13; Allison v. Kyle, 66 F.3d 71, 73-74

(5th Cir. 1995);

Orellana v. Kyle, 65 F.3d 29, 32 (5th Cir. 1995); Cook v.
Whiteside, 505 F.2d 32, 34 (5th Cir. 1974). See also Craft v.
Texas Ed. of Pardons and Paroles, 550 F.2d 1054, 1056 (5th Cir.
1977)

(providing "[p] arole Board standards in deciding parole

applications are of concern only where arbitrary action results
in the denial of a constitutionally protected liberty or property
interest. The expectancy of release on parole is not such an
interest"). Additionally, being ineligible for mandatory
supervision, petitioner has no protected liberty interest in his
accrued good or work time. Malchi v. Thaler, 211 F.3d 953, 957-58
(5th Cir. 2000).
Petitioner lumps his equal protection claim in with his due
process claims. He asserts that, in addition to allowing parole
counselors to make parole recommendations and determinations, the
Board's denial of a fair and impartial hearing and an opportunity
to evaluate his personal parole file in its entirety violate his
right to due process and equal protection of the laws.

(Pet' r's

Mem. 4, 48-9, doc. 2.) However, he fails to further develop the
argument or establish that, without adequate justification, he
was denied parole or treated unfairly from other prisoners
similarly situated or that he was denied parole based upon
discriminatory treatment due to an improper motive, such as race.
To assert that he is being treated unfairly by the Board's

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arbitrary decision-making, alone, is insufficient to state an
equal protection claim. See Clark v. Owens, 371 Fed. App'x 553,
2010 WL 1286867, at *l (5th Cir. 2010).
B. Double Jeopardy
Petitioner claims the Board is repeatedly punishing him for
the same criminal offense by denying parole based on the nature
of his offense or his past criminal record and by retracting the
use of his earned good time credits.

(Pet' r's Mem. 7, 11, doc. 2;

Pet'r's Suppl. Mem. 5, doc. 17.) The Double Jeopardy Clause
protects against a second prosecution for the same offense after
acquittal, a second prosecution for the same offense after
conviction, and multiple punishments for the same offense. United
States v. Ursery, 518 U.S. 267, 273 (1996). The denial of parole
is not an additional punishment for the original offense. Olstad
v. Collier, 326 Fed. App'x 261, 2009 WL 1116284, at *3 (5th Cir.
2009) . Therefore, the fact that petitioner may be eligible for
parole and yet remains confined without an expectancy of an early
release does not constitute a double jeopardy violation. Nor does
retraction of his use of accrued good time violate the Double
Jeopardy Clause. Id.
C. Ex Post Facto Clause

Petitioner claims that the Board violated the Ex Post Facto
Clause by applying state statutes and procedures enacted after
the commission of the offense that created a significant risk of

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prolonging his incarceration.

(Pet'r's Mem. 5, 10, doc. 2;

Pet' r's Suppl. Mem. 7-8, doc. 17.) Under the Ex Post Facto
Clause, "[l]egislatures may not retroactively alter the
definition of crimes or increase the punishment for criminal
acts." Collins v. Youngblood, 497 U.S. 37, 43 (1990). A statute
need not impair a vested right to violate the ex post facto
prohibition. Allison, 66 F.3d at 74. A statute violates the Ex
Post Facto Clause only if it "retroactively alter[s] the
definition of crimes or increase[s] the punishment for criminal
acts." California Dep't of Corr. v. Morales, 514 U.S. 499, 504-05
(1995). A denial of parole merely requires the prisoner to serve
out the remainder of his sentence; it does not lengthen the
sentence imposed by the court or increase the range of
imprisonment authorized by the legislature. Thus, such denial
and/or retroactive application of changes in Texas parole
statutes do not constitute an ex post facto violation.

See

Wallace v. Quarterman, 516 F.3d 351, 355-56 (5th Cir. 2008);
Orellana, 65 F.3d at 32; Olstad v. Collier, 326 Fed. App'x 261,
264, 2009 WL 1116284, at *l-2 (5th Cir. 2009); Cruz v.

Texas

Parole Div., 87 Fed. App'x 346, 2004 WL 190251, at *l (5th Cir.
2004) .
Additionally, the increase in the number of years between
set-offs does not violate the Ex Post Facto Clause. Garner, 529
U.S. at 250-57; Morales, 514 U.S. at 500. Although, legislative

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changes affecting a prisoner's eligibility for parole may have ex
post facto implications if they create a sufficient risk of
increasing the punishment for the prisoner's crime, a procedure
that creates a merely speculative or attenuated risk of
increasing the measure of punishment does not violate the Ex Post
Facto Clause. Garner, 529 U.S. at 254; Morales, 514 U.S. at 50800; Wallace, 516 F.3d at 354 (quoting Collins v. Youngblood, 497
U.S. 37, 43 (1990))

(internal quotations marks omitted); Warren

v. Miles, 230 F. 3d 688,

692

(5th Cir. 2000). Here, the Board's

ability to impose a longer set-off between petitioner's parole
reviews creates only a speculative risk of increased punishment.
D. Confrontation Clause
Petitioner claims that his rights under the Confrontation
Clause were violated because he was not notified of, or provided
with, the evidence to be used against him and was unable to
confront and cross-examine his accusers-i.e., the Board members
or voting commissioners.

(Pet' r's Mem. 5, doc. 2; Pet' r's Suppl.

Mem. 4-5, doc. 17.) The Confrontation Clause applies to the
states and "guarantees the right of a criminal defendant 'to be
confronted with the witnesses against him.' The right of
confrontation includes the right to cross-examine witnesses."
Richardson v. Marsh, 481 U.S. 200, 206 (1987). However, the right
is guaranteed only in "criminal prosecutions." U.S. CONST. amend.
VI. A parole review hearing is not a criminal prosecution. Thus,

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the Confrontation Clause does not apply to parole review
hearings. Gonzalez v. Texas Ed. of Pardons & Paroles, No.
A-12-CA-1000-SS, 2012 WL 5399095, at *5 (W.D.Tex. 2012).
E. Separation of Powers
Petitioner's separation of powers claim is also without
merit.

(Pet'r's Suppl. Mem. 5-7, doc. 17.) "The principle of

separation of powers is not enforceable against the states as a
matter of federal constitutional law." Atwell v. Nichols, 608
F.2d 228, 230 (5th Cir. 1979), cert. denied, 446 U.S. 995

(1980)

In addition, any alleged violation of a state separation of
powers doctrine would not implicate any federal constitutional
right. See Baca v. Owens, No. 07-51148, 2008 WL 3380769, at *1
(5th Cir. 2008)

(per curiam)

(finding no violation of the

separation of powers doctrine when the claims involve only state
branches of government); Estes v. Thaler, No. H-11-1012, 2011 WL
1427980 at *2 (S.D.Tex. 2011)

(providing "petitioner's argument

based on separation of powers concerns state branches of
government, and does not implicate the federal separation of
powers doctrine") .
F. Mandatory Supervision
Petitioner claims that with his flat and good time credits
he has served well over the maximum term to which he was
sentenced based on a life expectancy of 60 years, therefore he is
eligible for mandatory supervision release under the law in

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effect when he committed the offense.

(Pet' r's Mem. 11-12, doc.

2.) This claim was rejected by the Fifth Circuit in petitioner's
civil rights action in Ellason v. Owens, 526 Fed. App'x 342, 2013
WL 1490657, at *3-4

(5th Cir. 2013).

G. Eighth Amendment, Americans with Disabilities Act, and
Rehabilitation Act
To the extent petitioner claims deliberate indifference to
his "medical care treatment," denial of acceptance into prison
rehabilitative and treatment programs, official oppression,
and/or discrimination in violation of the Eighth Amendment's
Cruel and Unusual Punishment Clause, the Americans with
Disabilities Act, and/or the Rehabilitation Act, the claims are
not compatible with and do not sound in habeas corpus, as they do
not impact the fact or duration of petitioner's confinement.
(Pet' r's Mem. 13-22, doc. 2.) See Freiser v. Rodriguez, 411 U.S.
475, 500 (1973).
For the reasons discussed herein,
The court ORDERS that petitioner's petition for a writ of
habeas corpus pursuant to 28 U.S.C.

§

2254 be, and is hereby,

denied. The court further ORDERS that a certificate of
appealability be, and is hereby, denied, as petitioner has not

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made a substantial showing of the denial of a constitutional
right.
SIGNED January __,_/_,_/_, 2018.

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