Achord v. Davis
Filing
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MEMORANDUM OPINION AND ORDER. The federal habeas corpus petition filed by Donald Ray Achord, Sr., is DENIED and this case is DISMISSED with prejudice. A certificate of appealability is denied. (Signed by Judge George C Hanks, Jr) Parties notified.(agould, 3)
United States District Court
Southern District of Texas
ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
GALVESTON DIVISION
DONALD RAY ACHORD, SR.,
TDCJ # 00700178,
Petitioner,
VS.
LORIE DAVIS,
Respondent.
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June 29, 2018
David J. Bradley, Clerk
CIVIL ACTION NO. 3:18-CV-0105
MEMORANDUM OPINION AND ORDER
Petitioner Donald Ray Achord, Sr., is an inmate in the Texas Department of
Criminal Justice–Correctional Institutions Division (“TDCJ”). He has filed a petition for
a writ of habeas corpus under 28 U.S.C. § 2254 to challenge an adverse parole decision
(Dkt. 1). Achord proceeds pro se and has paid the filing fee. After reviewing all of the
pleadings under Rule 4 of the Rules Governing Section 2254 Cases in the United States
District Courts, the Court concludes that this case must be dismissed for reasons set forth
below.
I.
BACKGROUND
Achord is currently imprisoned at TDCJ’s LeBlanc Unit serving a life sentence for
murder, Case No. 93-CR-1354, 122nd District Court of Galveston County. See TDCJ
Offender Information Details, https://offender.tdcj.texas.gov/OffenderSearch (last visited
June 28, 2018). His petition does not challenge his conviction or sentence. Rather, he
challenges a 2017 decision by the Board of Pardons and Paroles (the “Board”), made
when he was incarcerated at the Stringfellow Unit in Brazoria County, to deny him
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parole. TDCJ’s online records state that the Board denied parole on July 21, 2017, for
the following reason:
2D
NATURE OF OFFENSE—The record indicates the instant offense has
elements of brutality, violence, assaultive behavior, or conscious selection of
victim's vulnerability indicating a conscious disregard for the lives, safety, or
property of others, such that the offender poses a continuing threat to public
safety.
See id. (information available by accessing “Parole Review Information” link). The site
indicates that Achord’s next parole review date is July 2020 (id.).1
Achord filed a state habeas application challenging the parole decision, WR88,018-01. On February 28, 2018, the Texas Court of Criminal Appeals denied habeas
relief without written order.
In his federal petition, Achord brings the following claims regarding the Board’s
2017 decision: (1) the Board violated his due process rights in connection with his
“individual treatment plan,” with which Achord maintains he has complied; (2) the Board
violated his due process rights when it failed to give him thirty-days’ notice of his review
date; and (3) the parole process should be “fair” under the due process clause (Dkt. 1, at
6-7, 11-15).
Achord seeks a “proper review” of his parole application and “to be
released on parole” (id. at 13, 14).
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In two places on his petition, Achord indicates that he is challenging a revocation, rather
than a denial, of parole. See Dkt. 1, at 2 (indicating on checkbox that the petition challenges a
parole revocation proceeding); id. at 5 (completing portion of form petition pertaining to parole
revocation and stating that parole was revoked at the Stringfellow Unit on June 9, 2017).
However, TDCJ’s records demonstrate that parole was denied on July 21, 2017. Moreover, the
narrative portions of the petition confirm that Achord complains of the decision by the Board to
deny him parole, rather than to revoke parole.
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II.
THE PETITION IS WITHOUT MERIT
Achord complains that he was denied early release from prison without due
process. There are two ways in which a Texas inmate becomes eligible for early release
from imprisonment.
The first is by “parole” and the second is by “mandatory
supervision” release. “Parole” means “the discretionary and conditional release of an
eligible inmate . . . so that the inmate may serve the remainder of the inmate’s sentence
under the supervision of the pardons and paroles division.”
TEX. GOV’T CODE
§ 508.001(6). “Mandatory supervision” is “the release of an eligible inmate . . . so that
the inmate may serve the remainder of the inmate’s sentence not on parole but under the
supervision of the pardons and paroles division.” Id. § 508.001(5). Whereas parole is
wholly discretionary, an inmate’s release to mandatory supervision is required, subject to
certain exceptions, when the “actual calendar time the inmate has served plus any accrued
good conduct time equals the term to which the inmate was sentenced.” Id. § 508.147(a).
See Jackson v. Johnson, 475 F.3d 261, 263 n.1 (5th Cir. 2007).
Achord is not eligible for mandatory supervision because he has a prior felony
conviction for murder.
See TEX. GOV’T CODE § 508.149(a)(2) (excluding felons
convicted of first or second degree murder from eligibility for mandatory supervision).
Therefore, this case concerns only Achord’s claim that he was denied discretionary
parole without due process.
Prison inmates are entitled to protection under the Due Process Clause only when
an official action infringes upon a constitutionally protected liberty interest. See Sandin
v. Conner, 515 U.S. 472 (1995). The United States Supreme Court has recognized that
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the states have no duty to establish a parole system and that there is no constitutional
right to be released on parole before the expiration of a valid sentence. See Board of
Pardons v. Allen, 482 U.S. 369, 378 n.10 (1987) (explaining that “statutes or regulations
that provide that a parole board ‘may’ release an inmate on parole do not give rise to a
protected liberty interest”); Greenholtz v. Inmates of the Neb. Penal & Correctional
Complex, 442 U.S. 1, 11 (1979) (holding that a statute which “provides no more than a
mere hope that the benefit will be obtained . . . is not protected by due process”). Thus,
the Due Process Clause does not include a right to parole.
Likewise, 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 Allison v. Kyle, 66 F.3d 71, 74 (5th Cir. 1995); Williams v. Briscoe,
641 F.2d 274, 277 (5th Cir. 1981). As a result, it is well settled that, even when a Texas
inmate is eligible for discretionary parole, the inmate has “no protected liberty interest in
parole.” Johnson v. Rodriguez, 110 F.3d 299, 308 (5th Cir. 1997). See Toney v. Owens,
779 F.3d 330, 342 (5th Cir. 2015) (“even if the parole board considered unreliable or
even false information . . . in making its parole determinations, this simply does not assert
a federal constitutional violation”) (internal citation, quotation marks, and alterations
omitted) (quoting Johnson, 110 F.3d at 308).
Absent a protected liberty interest in attaining parole, Achord cannot show that he
was denied parole in violation of the Due Process Clause or that he is entitled to federal
habeas corpus relief. The federal courts are authorized to dismiss federal habeas petitions
without ordering a response where it plainly appears that the petitioner is not entitled to
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relief. See 28 U.S.C. § 2243; Rule 4, Rules Governing Section 2254 Cases in the United
States District Courts. Because Achord’s habeas petition lacks an arguable basis in law,
it must be dismissed.
III.
CERTIFICATE OF APPEALABILITY
Habeas corpus actions under 28 U.S.C. § 2254 or § 2255 require a certificate of
appealability to proceed on appeal. 28 U.S.C. § 2253(c)(1); Miller-El v. Cockrell, 537
U.S. 322, 335-36 (2003). Rule 11 of the Rules Governing Section 2254 Cases requires a
district court to issue or deny a certificate of appealability when entering a final order that
is adverse to the petitioner.
A certificate of appealability will not issue unless the petitioner makes “a
substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2), which
requires a petitioner to demonstrate “‘that reasonable jurists would find the district
court’s assessment of the constitutional claims debatable or wrong.’” Tennard v. Dretke,
542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). Under
the controlling standard, a petitioner must show “that reasonable jurists could debate
whether (or, for that matter, agree that) the petition should have been resolved in a
different manner or that the issues presented were adequate to deserve encouragement to
proceed further.” Miller-El, 537 U.S. at 336 (internal citation and quotation marks
omitted). Where denial of relief is based on procedural grounds, the petitioner must show
not only that “jurists of reason would find it debatable whether the petition states a valid
claim of the denial of a constitutional right,” but also that they “would find it debatable
whether the district court was correct in its procedural ruling.” Slack, 529 U.S. at 484.
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A district court may deny a certificate of appealability, sua sponte, without
requiring further briefing or argument. Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir.
2000). After careful review of the pleadings and the applicable law, the Court concludes
that reasonable jurists would not find its assessment of the claims debatable or wrong.
Because the petitioner does not allege facts showing that his claims could be resolved in a
different manner, a certificate of appealability will not issue in this case.
IV.
CONCLUSION AND ORDER
Based on the foregoing, the Court ORDERS as follows:
1.
The federal habeas corpus petition filed by Donald Ray Achord, Sr., is
DENIED and this case is DISMISSED with prejudice.
2.
A certificate of appealability is DENIED.
The Clerk will provide a copy of this order to the parties.
SIGNED at Galveston, Texas, this 29th day of June, 2018.
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George C. Hanks Jr.
United States District Judge
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