Preston v. Thaler
Filing
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OPINION ON DISMISSAL granting 16 Respondent's Motion To Dismiss; denying 18 Petitioner's Motion for Summary Judgment; denying 23 Motion for Hearing. Petitioner's habeas claims are DENIED and this cause of action is DISMISSED with prejudice. A certificate of appealability is DENIED; All other pending motions are DENIED.(Signed by Judge Melinda Harmon) Parties notified.(htippen, )
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
BRIAN EDWARD PRESTON,
TDCJ-CID NO.459126,
Petitioner,
v.
RICK THALER,
Respondent.
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CIVIL ACTION NO. H-10-4365
OPINION ON DISMISSAL
Petitioner Brian Edward Preston, an inmate confined within the Texas
Department of Criminal Justice, Correctional Institutions Division (“TDCJ-CID”), proceeding
pro se, filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. (Docket Entry
No.1). Respondent has filed an answer, in which he moves the Court to deny petitioner’s claims
and dismiss the petition with prejudice. (Docket Entry No.16). Petitioner has filed a response to
Respondent’s Answer (Docket Entry No.17), a motion for summary judgment (Docket Entry
No.18), and a request for an expedited hearing. (Docket Entry No.21). For the reasons to
follow, the Court will grant Respondent’s motion to dismiss, deny petitioner’s motions for
summary judgment and for an expedited hearing, and dismiss this habeas action with prejudice.
BACKGROUND
On June 5, 1987, petitioner entered a plea of guilty to murder, which he
committed on or about January 28, 1987. (Docket Entry No.14-12, page 15). Following a presentence investigation, a judge in the 230th Criminal District Court of Harris County, Texas
accepted the plea in cause number 468249 and sentenced petitioner to sixty years confinement in
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TDCJ-CID. (Id, page 33). Petitioner does not challenge his conviction but the execution of his
sentence.
Petitioner claims that he was incarcerated for twenty years and eleven months
before he was released to mandatory supervision parole on December 27, 2007. (Docket Entries
No.1, page 6; No.14-25, page 35). On August 14, 2009, mandatory supervision parole was
revoked. (Docket Entry No.16-1, page 3). On January 29, 2010, petitioner sought state habeas
relief from the revocation of parole on the following grounds:
1.
His rights under the Due Process Clause and Due Course of Law
Clause were violated by state officials who held him past his
mandatory supervision release date of December 27, 2007, when
he failed to conform to terms of release in the void mandatory
supervision contract; and,
2.
Hearing Officer Diane Corona violated his liberty interest in
release to mandatory supervision parole at the revocation hearing
on August 3, 2009, by accepting inaccurate evidence, i.e., an
affidavit stating that petitioner had signed the mandatory
supervision contract, which she used to revoke his parole.
(Docket Entry No.14-25, pages 7-14). The state district court, sitting as a habeas court, entered
the following Findings of Fact and Conclusions of Law on March 10, 2010:
1.
The court finds that Applicant admits that he was timely released
to mandatory supervision in the instant case.
2.
The court further finds that Applicant’s claim that he was not
timely released to mandatory supervision is without merit due to
Applicant’s own admissions.
3.
Because the law affords Applicant a remedy by administrative
review, Applicant may not challenge the sufficiency of the
evidence supporting the revocation of his mandatory supervised
release in the instant habeas proceeding. [citations omitted].
4.
In all things, Applicant has failed to demonstrate that his
conviction was improperly obtained or that he is being improperly
confined.
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(Id., pages 55-56). The state district court recommended that relief be denied. (Id., page 56).
The Texas Court of Criminal Appeals denied petitioner’s state habeas application without written
order on May 19, 2010. (Id., page 2).
Petitioner executed the present federal habeas petition on October 29, 2010.
(Docket Entry No.1, page 13). He seeks federal habeas relief on the following grounds:
1.
Petitioner was subjected to a void mandatory supervision contract,
which he did not sign or agree to, that imposed special conditions
on the terms of his release, i.e., electronic monitoring and home
confinement. Such conditions infringe on his liberty interest in his
release to mandatory supervision and are punitive in nature.
2.
Following the revocation of his release to mandatory supervision
parole under the void contract, Respondent withdrew thirty-nine
years of petitioner’s good time credit that he had accrued before
his release, thus extending his judicially imposed sentence in
violation of the Separation of Powers Clause and holding him
beyond his minimum discharge date of December 26, 2007, in
violation of Article 42.12, § 15(c) of the Texas Code of Criminal
Procedure. Petitioner maintains that such acts also violate the
Administrative Procedure Action, 5 U.S.C. § 706, and the All
Writs Act, 28 U.S.C. § 1651.
(Docket Entry No.1, pages 1-4).
DISCUSSION
Title 28 U.S.C. § 2254 authorizes a district court to entertain a petition for writ of
habeas corpus on behalf of a person in custody pursuant to a state court judgment if the prisoner
is in custody in violation of the Constitution or laws or treaties of the United States. 28 U.S.C. §
2254(a). The court may not grant relief on any claim that was adjudicated in state court
proceedings unless the adjudication: (1) resulted in a decision that was contrary to, or involved
an unreasonable application of, clearly established federal law, or resulted in a decision based on
an unreasonable determination of the facts in light of the evidence presented in state court. 28
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U.S.C. § 2254(d). A decision is contrary to clearly established federal law if the state court
reaches a conclusion opposite to a decision reached by the Supreme Court on a question of law
or if the state court decides a case differently than the Supreme Court has on a materially
indistinguishable set of facts. Williams v. Taylor, 529 U.S. 362, 412–13 (2000). An application
of clearly established federal law is unreasonable if the state court identifies the correct
governing legal principle, but unreasonably applies that principle to the facts. Id. In addition,
this court must accept as correct any factual determinations made by the state courts unless the
petition rebuts the presumption of correctness by clear and convincing evidence. 28 U.S.C. §
2254(e).
Null and Void Contract
Petitioner’s pleadings allege that his release was governed by an invalid contract
with special conditions that infringed upon his liberty interest in release to mandatory
supervision. (Docket Entry No.1, page 3). Petitioner refused to be released to these conditions
and therefore, refused to sign the contract. (Id.). He was released and forced to live under these
conditions without due process. (Id., pages 3-4). Petitioner contends that Respondent violated
his due process rights under the 14th and 5th Amendment by binding him to a void contract
without legal authority. (Id., page 4).
Petitioner’s release to mandatory supervision parole was not negotiable nor
subject to contract law; state law mandated his release. An inmate in Texas, like petitioner, who
was eligible for release to mandatory supervision pursuant to the statute in effect prior to
September 1, 1997, has a constitutional expectancy of release on mandatory supervision. Malchi
v. Thaler, 211 F.3d 953, 958 (5th Cir. 2000). When a prisoner, like petitioner, meets the
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requirements for release on mandatory supervision, officials have no discretion but to release
him. See Madison v. Parker, 104 F.3d 765 (5th Cir. 1997). Petitioner does not deny that he was
released to mandatory supervision parole.
The terms and conditions to which petitioner was subjected while serving his
sentence on mandatory supervision parole were not negotiable nor subject to contract but
mandated by state law.
Texas requires that state officials provide an inmate released to
mandatory supervision with a written statement, i.e., a Certificate of Mandatory Release, “stating
in clear and intelligible language the conditions and rules on mandatory supervision. TEX.
GOV’T. CODE ANN. § 508.154(c). Petitioner does not deny that the State of Texas provided him
with a Certificate of Mandatory Release, setting forth both general and special conditions of
release. (Docket Entry No.1-1, pages 1-3).
Unlike inmates released to discretionary parole, inmates released to mandatory
supervision parole are not required to accept, sign, or execute a certificate of parole as a
precondition of release.
See TEX. GOV’T. CODE. § 508.154(b).
They must, however, be
amendable to the conditions of supervision ordered by a parole panel.
Id. § 508.154(d).
Therefore, petitioner’s refused to sign the Certificate is of no constitutional moment. By law, his
signature was not required; his acceptance of the terms, conditions, and special conditions
provided in the Certificate of Mandatory Release, however, was required.
Moreover, petitioner’s refusal to sign the Certificate of Mandatory Release had no
effect on the state’s ability to revoke his release on mandatory supervision parole. State law
gave officials the authority to revoke petitioner’s release on mandatory supervision, based on any
violation of the conditions set forth in the Certificate of Mandatory Supervision. Petitioner
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concedes that he participated in a revocation hearing on August 3, 2009. (Docket Entry No.1,
page 5). Petitioner admitted to three violations of the conditions of mandatory supervision.
(Docket Entry No.16-1, page 3). Petitioner also testified that he had been subjected to three prerevocation warrants since he had been released. (Id.). Revocation, therefore, was warranted.
See United States v. McCormick, 54 F.3d 214, 219 n. 3 (5th Cir. 1995) (when reviewing decision
to revoke supervised release based on several alleged violations, record need only support a
violation of a single condition of release in order to be upheld by appellate court); Frick v.
Quinlan, 631 F.2d 37, 39 (5th Cir. 1980) (same).
Petitioner, therefore, fails to make a substantial showing of the denial of a federal
right.
Special Conditions of Release
Petitioner also complains that the Super Intensive Supervision Program (“SISP”)
conditions imposed the Board of Pardons and Paroles, i.e., home confinement and electronic
monitoring, violated his liberty interest in mandatory supervision release and constituted
punishment. (Docket Entry No.1, page 6). The due process rights of prisoners are generally
limited to freedom of restraint which “impose atypical and significant hardship on the inmate in
relation to the ordinary incidents of prison life.” Sandin v. Conner, 515 U.S. 472, 484 (1995).
There is nothing “atypical” about requiring someone convicted of a murder to wear an electronic
monitor and to be subjected to home confinement while on mandatory supervised release. See
Charles v. Rodriguez, 112 Fed. App’x 332, 334 (5th Cir. 2004) (unpublished) (finding that
parolee’s “limited confinement in furtherance of a condition of his mandatory supervision did
not rise to the level of a constitutional violation). The Texas Legislature has authorized the
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Texas Department of Pardons and Paroles to impose such conditions on inmates subject to
release on parole or mandatory supervision. Texas law requires that the department establish a
program to provide super-intensive supervision to inmates released on parole or mandatory
supervision and determined by parole panels to require super-intensive supervision.
The
program must provide the highest level of supervision provided by the department. TEX. GOV’T
CODE ANN. § 508.317.
Among the conditions a parole panel may impose are electronic
monitoring and “any condition that a court may impose on a defendant placed on community
supervision[.]” Id. § 508.221. In fact, the law in effect at the time petitioner committed the
murder offense authorized the parole board to “adopt such other reasonable rules not inconsistent
with law as it may deem proper or necessary with respect to the eligibility of prisoners for parole
and mandatory supervision, the conduct of parole and mandatory supervision hearings, or
conditions to be imposed upon parolees and persons released to mandatory supervision [.]”
Swope v. State, 723 S.W.2d 216, 229 (Tex. App.—Austin 1986) (quoting TEX. CODE CRIM.
PROC. art. 42.12, § 15(g) (Vernon 1986) (since repealed) (emphasis added)), aff’d 805 S.W.2d
442 (Tex. Crim. App. 1991).
Furthermore, the intent of this law is not punitive. As the Texas Legislature
noted:
[T]here is a compelling state interest in placing inmates released on parole
and mandatory supervision under the kind of supervision that will best
protect public safety. The level of supervision of inmates released from
the Texas Department of Criminal Justice should be appropriate based on
their likelihood of committing new offenses, the nature of their original
offenses, their performance in prison programs designed to rehabilitate
inmates, and any other factor deemed by a parole panel to be relevant to
their status.
The legislature [also] finds that there is a need for a program of intensive
supervision of certain inmates whose histories indicate a propensity for
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violence. Regardless of whether an inmate’s instant offense is a violent
offense, there is a need for careful evaluation and review of each inmate
released from prison to determine the need for supervision of the inmate.
Rollins v. Quarterman, Civil Action No.3:06-1055-K, 2007 WL 465304 at *3 (N.D. Tex. Feb.
12, 2007) (quotingTEX. GOV'T CODE ANN. § 508.317, notes). A “law serving nonpunitive goals
‘is not punishment, even though it may bear harshly on one affected.’” Flemming v. Nestor, 363
U.S. 603, 614 (1960).
False Testimony
Petitioner further seeks federal habeas relief and moves for summary judgment on
the ground that his release to mandatory supervision was revoked based on false testimony that
he had signed the contract. (Docket Entries No.1, pages 6-8, No.18). The hearing record reflects
that petitioner objected to the affidavit sworn by Rudi Martinez, the state officer who maintained
such record, because Martinez attested that petitioner had signed the Certificate; the objection
was overruled and the affidavit was accepted as evidence.1 (Docket Entry No.16-1, page 6).
The fact that Martinez attested to a fact that was clearly incorrect is of no
constitutional moment and had no bearing on the validity or enforceability of the Certificate of
Mandatory Supervision or on whether petitioner violated the terms and conditions of his
mandatory supervision release because the issue was immaterial. Petitioner did not have to sign
the Certificate of Supervision, the terms and conditions of release were not negotiable or
contractural but mandated by state law; petitioner was subject to such terms and conditions
regardless of his agreement or acceptance of the same. Petitioner was afforded a hearing;
therefore, he suffered no due process violation by the acceptance of such affidavit.
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In such affidavit, Martinez attested to the records kept by the Parole Division, which included the Certificate of
Mandatory Supervision “signed by PRESTON on 12-27-2007, showing his/her agreement to abide by the rules and
conditions of the contract listed thereon; to show he/she is on MANDATORY SUPERVISION, subject to said
rules.” (Docket Entry No.1-3, page 2).
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Moreover, the revocation hearing did not violate the Administrative Procedure
Act of 5 U.S.C. § 706. The Administrative Procedures Act applies to federal agencies and not
state agencies. See 5 U.S.C. § 701(b)(1).
Forfeiture of Good Time Credit
Petitioner complains that the revocation of thirty-nine years of good time credit,
which he forfeited following the revocation of his mandatory supervision parole, violates his
rights under the Due Process Clause, Article 42.12, §15(c) of the Texas Code of Criminal
Procedure, and illegally extends his sentence in violation of the separation of powers doctrine.
(Docket Entry No.1, pages 4, 9-11).
The Constitution does not guarantee an inmate good time credit for satisfactory
behavior while in prison. Madison v. Parker, 104 F.3d 765, 768 (5th Cir. 1997) (citing Wolff v.
McDonnell, 418 U.S. 539, 557 (1974)). Texas law has provided that good-time credit earned by
inmates is a privilege and not a vested right. See Ex parte Henderson, 645 S.W.2d 469, 472
(Tex. Crim. App. 1983); TEX. REV. CIV. STAT. ANN. art. 6181-1, § 4 (1985); TEX. GOV’T CODE
ANN. § 498.003(a) (governing the accrual of good-time credit today). Under Texas law, such
credit may be forfeited, either by violating the TDCJ’s rules while in its custody, or by violating
the guidelines of a conditional release program. Henderson, 645 at 472. Moreover, a Texas
inmate has no protected liberty interest in the restoration of those forfeited. See Hallmark v.
Johnson, 118 F .3d 1073, 1079-80 (5th Cir. 1997).
“[W]hen a state creates a right to good time credit and recognizes that its
revocation is an authorized sanction for misconduct, a prisoner’s interest therein is embraced
within the Fourteenth Amendment’s liberty concerns so as to entitle him to those minimum
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procedures appropriate under the circumstances and required by the due process clause to insure
that this state-created right is not arbitrarily abrogated.” Malchi, 211 F.3d at 959 (citing Wolff,
418 U.S. at 557). As previously discussed, petitioner has not shown that he did not receive a fair
hearing after he violated the conditions of his release. Therefore, he fails to show that he has
been deprived of due process by the forfeiture of his good time credit. Moreover, without some
state-created right to reinstatement of good time credit, petitioner cannot prevail on a due process
claim for restoration of his good time credit.
Texas law also provides that the good-time credit an offender accumulates
“applies only to eligibility for parole or mandatory supervision . . . and does not otherwise affect
an inmate’s term [of imprisonment, i.e., his sentence].” TEX. GOV’T CODE ANN. § 498.003(a).
Therefore, the forfeiture of petitioner’s good time credits did not unlawfully extend his sentence
beyond the original term imposed by the trial court even though his maximum sentence
discharge date may have been extended due to the forfeiture of those credits. See Ex parte
Hallmark, 883 S.W.2d 672, 674 (Tex. Crim. App. 1994). Because good time credit applies only
to an inmate’s eligibility for parole or mandatory supervision and not the length of his sentence,
petitioner has no basis for challenging the forfeiture of good time credit on double jeopardy
grounds. See Morrision v. Johnson, 106 F.3d 127, 129 n.1 (5th Cir. 1997) (noting no double
jeopardy violation in requiring a parole violator to serve remaining portion of his sentence).
To the extent that petitioner’s claim is based on violations of state law, such claim
is not a proper basis of federal habeas relief. A state prisoner seeking federal court review of his
conviction or sentence under 28 U.S.C. § 2254 must assert a violation of a federal constitutional
right. Estelle v. McGuire, 502 U.S. 62, 67–68, (1991)(noting that federal habeas corpus relief
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will not issue to correct errors of state constitutional, statutory, or procedural law, unless a
federal issue is also presented).
Petitioner’s separation of powers claim is also without legal merit. The federal
doctrine of separation of powers has never been incorporated and is not enforced against the
states. Attwell v. Nichols, 608 F.2d 228, 230 (5th Cir. 1979); see also Baca v. Owens, No. 0751148, 2008 WL 3380769, at *1 (5th Cir. Aug.7, 2008) (per curiam).
To the extent that petitioner argues that the State illegally extended his sentence
by the forfeiture of the good time credits in violation of the Administrative Procedure Act, 5
U.S.C. § 706 and the All Writs Act of 28 U.S.C. § 1651 (Docket Entry No.1, page 4), his
argument is frivolous. As previously discussed, the Administrative Procedures Act applies to
federal agencies and not state agencies. See 5 U.S.C. § 701(b)(1). The All Writs Act, 28 U.S.C.
§ 1651, is a residual source of authority to issue writs that are not otherwise covered by statute.
See Carlisle v. United States, 517 U.S. 416, 429 (1996).
Here, the primary means for
challenging the fact or duration of incarceration as a result of a state court conviction is by filing
a habeas corpus petition pursuant to 28 U.S.C. § 2254. Therefore, the All Writs Act is not
applicable to this civil action.
In conclusion, the state court’s determination that petitioner was not entitled to
post conviction relief is not in conflict with clearly established federal law or based on an
unreasonable determination of the facts in light of the evidence presented in the state court
proceeding. Petitioner has failed to make a substantial showing of the denial of a federal right.
Relief must, therefore, be denied.
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CERTIFICATE OF APPEALABILITY
A certificate of appealability from a habeas corpus proceeding will not issue
unless the petitioner makes “a substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2).
This standard “includes showing 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.”
Slack v. McDaniel, 529 U.S. 473, 484 (2000) (internal quotations and citations omitted). Stated
differently, the petitioner “must demonstrate that reasonable jurists would find the district court’s
assessment of the constitutional claims debatable or wrong.” Id.; Beazley v. Johnson, 242 F.3d
248, 263 (5th Cir. 2001). On the other hand, when denial of relief is based on procedural
grounds, the petitioner must not only show 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.” Beazley, 242
F.3d at 263 (quoting Slack, 529 U.S. at 484).
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). The Court has determined that petitioner has not made a
substantial showing that reasonable jurists would find the Court’s assessment of the
constitutional claims debatable or wrong. Therefore, a certificate of appealability from this
decision will be denied.
CONCLUSION
Accordingly, the Court ORDERS the following:
1.
Respondent’s motion to dismiss (Docket Entry No.16) is
GRANTED.
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2.
Petitioner’s motion for summary judgment (Docket Entry No.18)
is DENIED.
3.
Petitioner’s habeas claims are DENIED and this cause of action is
DISMISSED, with prejudice.
4.
A certificate of appealability is DENIED.
5.
Petitioner’s motion for an expedited hearing pursuant to 28 U.S.C.
§2243 is DENIED. See Castillo v. Pratt, 162 F.Supp.2d 575, 576
(N.D. Tex. 2001).
6.
All other pending motions are DENIED.
The Clerk will provide copies to the parties.
SIGNED at Houston, Texas, this 4th day of June, 2012.
___________________________________
MELINDA HARMON
UNITED STATES DISTRICT JUDGE
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