Boone v. Quarterman

Filing 28

MEMORANDUM AND RECOMMENDATIONS re 19 Amended Complaint/Counterclaim/Crossclaim etc., 13 MOTION to Dismiss with Brief in Support, ORDER granting 17 MOTION to Amend ; Motion-related deadline set re: 19 Amended Complaint/Counterclaim/Crossclaim etc., 13 MOTION to Dismiss with Brief in Support. Objections due within 10 days of service of this order. (Signed by Magistrate Judge Stephen Wm Smith) Parties notified. (jmarchand)

B o o n e v. Quarterman

D o c . 28

U N IT E D STATES DISTRICT COURT S O U T H E R N DISTRICT OF TEXAS H O U S T O N DIVISION

T H O M A S EARL BOONE, JR., P e titio n e r , vs. N A T H A N IE L QUARTERMAN, D ire c to r of the Texas Department o f Criminal Justice - Correctional In s titu tio n s Division, R e s p o n d e n t.

§ § § § § § § § § §

C iv il Action H-07-cv-02610

M e m o r a n d u m , Recommendation, and Order B e f o re the court is Thomas Earl Boone, Jr.'s 28 U.S.C. § 2254 habeas corpus petition ( D k t . 1), his motion to amend (Dkt. 17),1 and Respondent Quarterman's motion to dismiss (D k t. 13). For the reasons expressed below, it is recommended that Quarterman's motion be g ra n te d and Boone's petition be dismissed. Jurisdiction B o o n e's petition is at least the eighth § 2254 petition he has filed in the Southern D is tr ic t. 2 Many of these petitions challenged Boone's convictions for burglary and

Boone's motion is granted. However, for the reasons set forth below, the claims contained within his amendment should be denied. The on-line docket for the Southern District shows that Boone has filed § 2254 petitions in the following cases: Boone v. Quarterman, No. H-07-2431 (S.D. Tex. 2007); Boone v. Dretke, No. H-04-379 (S.D. Tex. 2005); Boone, et al v. Johnson, No. H-96-3776 (S.D. Tex. 1997) and Boone v. State of Texas, et al, No. H-93-777 (S.D. Tex. 1993). Although, not 1
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Dockets.Justia.com

p o ss e ss io n of a deadly weapon in a penal institution,3 but Boone's current petition purports to challenge various state parole and disciplinary proceedings. He presents four claims in his o rig in a l petition: (1 ) th e Texas Board of Pardons and Paroles violated due process because it a p p lied the "wrong" version of the parole statute when revoking his p a ro le in 1991; th e Board also violated the Ex Post Facto Clause by its action; th e Texas Board of Criminal Justice participated in this violation of his parole rig h ts by "usurping legislative authority;" and th e TDCJ disciplinary process and medical department violated due process b y using adverse testimony of the psychiatric staff against him in disciplinary p ro c e e d in g s for over 15 years.

(2) (3)

(4)

Not surprisingly, given the number of federal habeas petitions Boone has filed over th e years, each of these claims are successive petitions over which this court lacks ju ris d ic tio n . Boone himself concedes that he previously challenged his parole revocation as a due process violation in case no. H-93-0777, filed in March 1993.4 In 2005, District Judge

available on-line, records indicate that Boone has previously filed four additional § 2254 petitions in this district. See Boone v. Quarterman, No. H-07-2431, 2 (S.D. Tex. 2007) (referencing H-82-559, H-83-2837, H-88-4268, and H-88-4354). He has also filed at least two in the Eastern District. Civil Action No. 1:00cv728 (E.D. Tex. Dec.1, 2000); Civil Action No. 6:99cv372 (E.D. Tex. Sept. 20, 2001). Boone was convicted for burglary of a habitation on August 2, 1978 in Harris County, Texas. Boone v. State, 629 S.W.2d 786 (Tex. App.--Houston [14th] 1981). On January 6, 1994, Boone was convicted in Anderson County, Texas for possessing a deadly weapon in a penal institution. Dkt. 13 (citing Boone's Anderson County conviction in cause number 23, 150).
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Dkt. 1, p. 8. 2

Jo h n Rainey dismissed as successive yet another of Boone's challenges 5 to his parole r e v o c a t io n . Boone now says his parole revocation violated other constitutional provisions. B u t the jurisdictional restrictions upon successive habeas applications applies even to claims n o t presented in the prior petition. See Graham v. Johnson, 168 F.3d 762, 774 (5th C ir.1 9 9 9 )(" [ A ]n application filed after a previous application was fully adjudicated on the m e rits is a second or successive application within the meaning of 28 U.S.C. § 2244(b), even if it contains claims never before raised."). Section 2244(b)(2) of AEDPA provides: A claim in a second or successive habeas corpus application under section 2 2 5 4 that was not presented in a prior application shall be dismissed unless (A ) t h e applicant shows that the claim relies upon a new rule of c o n stitu tio n a l law, made retroactive to cases on collateral review by the S u p r e m e Court, that was previously unavailable; or (i)th e factual predicate for the claim could not have been discovered p re v io u sly through the exercise of due diligence; and (ii) the facts u n d e rlyin g the claim, if proven and viewed in light of the evidence as a whole, would be sufficient to establish by clear and convincing e v id e n c e that , but for constitutional error, no reasonable factfinder w o u ld have found the applicant guilty of the underlying offense.

(B )

28 U.S.C. § 2242(b0(2). B o o n e makes no attempt to argue that his new legal theories rest upon a new rule of c o n stitu tio n a l law made retroactive by the Supreme Court, or upon a factual predicate that c o u ld not have been discovered previously through the exercise of due diligence. He merely a s s e rts that he "did not know about them" and "only recently ha[s] discovered" these

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Civil Action No. H-04-0379. 3

th e o rie s.6 As § 2244(b)(2) makes plain, lack of knowledge is insufficient to overcome the ju ris d ic tio n a l bar to successive habeas applications. The situation is no different with respect to the disciplinary proceedings challenged in ground four. Although Boone contends that the due process disciplinary issue was not a ss e rte d in any previous federal petition, it certainly could have been. Boone's application e m p h a s iz e s that "all disciplinary hearings I've had apply to this [claim],"and estimated that b e tw e e n December 1984 to date there had been "over a dozen, maybe as many as 50" such h e a rin g s .7 In other words, adversarial testimony of psychiatric staff was an issue in every one o f his disciplinary hearings, resulting in a cumulative loss calculated by Boone at more than 3 0 0 0 days of good-time credits since 1984.8 Clearly, the failure to raise this challenge to his d is c ip lin a ry proceedings in earlier habeas petitions decided on the merits 9 constitutes an a b u s e of the writ. See Crone v. Cockrell, 324 F.3d 833, 837-838 (5th Cir. 2003) (holding that a prisoner's failure to bring his unexhausted time credit claim in his first petition, when claim aro se prior to the filing of his first petition, rendered his second petition "successive."). A cc o rd in g ly, Boone's challenge to both his parole revocation and disciplinary p ro c e ed in g s constitutes a successive application over which this court lacks subject matter

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Dkt. 1, at p.8. Dkt. 1, at p. 5. Id. E.g., H-88-4354; H-93-777; H-07-2431. 4

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ju ris d ic tio n , absent authorization from the court of appeals. United States v. Key, 205 F.3d 7 7 3 , 774 (5th Cir. 2000). Motion to Amend Boone has also filed a motion to amend his habeas petition to raise an additional claim pertaining to parole proceedings allegedly occurring in November 2006 and March 2007.10 In particular, he claims that the state's decision to put off his next scheduled parole review until January 2011, four years and three months after his last review, constitutes a due process violation. Boone's motion to amend is granted. Although this claim relates to parole proceedings, it is arguably not successive because the challenged scheduling decision was subsequent to any previous habeas petition decided on the merits. Boone acknowledges that this claim is not exhausted in state court, but argues that resort to state court would be "obviously futile" and therefore unnecessary. The court need not reach this issue, because even if exhausted, the claim has not a whiff of merit. See Granberry v. Greer, 481 U.S. 129, 135 (1987) (exhaustion not required in order to deny a frivolous habeas petition on the merits). Boone admits that neither statutory law, n o r Fifth Circuit precedent, are in his favor, but argues that this law should be disregarded. S e e Creel v. Kyle, 42 F.3d 955 (5 th Cir.), cert. denied, 514 U.S. 1070 (1995) (dismissing co n stitutio n al challenge to scheduling of Texas parole review hearings as frivolous). More s p e c if ic a lly, he claims that the Fifth Circuit's opinion in Creel "eluded" the "truth", and that sta tu to ry law should have been disregarded in favor of prison board policy, which supposedly

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Dkt. 17. 5

re q u ire s annual parole review. This argument has no basis in law. Boone has never had a federally cognizable right to a particular interval of parole review. TEX. GOV'T CODE ANN. § 508.141(g) (Vernon 2 0 0 7 ); TEX.CODE CRIM. PROC. ANN. ART. 42.12, § 15(e) (Vernon 1979); see also Creel v. K y le , 42 F.3d at 957. Boone's amended claim is frivolous, and should be denied. Conclusion and Recommendation Boone's challenges to parole revocation and disciplinary proceedings are successive an d should be dismissed for lack of subject matter jurisdiction in this court. While this court n o rm a l ly recommends transferring successive petitions to honor Congress's intention that th o s e petitions be screened by the court of appeals,1 1 no useful purpose would be served by d o in g so here. Boone's too frequent filings in this and other courts constitute precisely the s o rt of writ abuse which § 2244(b) was designed to prevent. While Boone is free to seek prefiling authorization from the Fifth Circuit on his own, this court will not condone Boone's re p e a te d disregard for § 2244(b) by recommending transfer for that purpose. Boone's amended parole review claim should be denied on the merits with prejudice. A d d itio n a lly, the court finds that Boone has not made a substantial showing that he w a s denied a constitutional right, or that it is debatable whether this court is correct in its p ro c e d u ra l ruling. Slack v. McDaniel, 529 U.S. 473, 484 (2000). Therefore, a certificate of

"Indeed, the purpose of [28 U.S.C. § 2244(b)] was to eliminate the need for the district courts to repeatedly consider challenges to the same conviction unless an appellate panel first found that those challenges had some merit." United States v. Key, 205 F.3d 773, 774 (5th Cir. 2000) (citing In re Cain, 137 F.3d 234, 235 (5th Cir. 1998)). 6

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a p p e ala b ility should not issue. T h e parties have ten days from service of this Memorandum and Recommendation to f ile written objections. Failure to file timely objections will preclude appellate review of f a c t u a l findings or legal conclusions, except for plain error. See Rule 8(b) of the Rules G o v e rn in g Section 2254 Cases; 28 U.S.C. ' 636(b)(1)(C); FED. R. CIV. P. 72. Signed at Houston, Texas on August 27, 2008.

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