Crowder v. Stephens

Filing 7

OPINION ON DISMISSAL granting 2 MOTION/APPLICATION to Proceed In Forma Pauperis, denying 1 Application for Writ of Habeas Corpus, denying certificate of appealability, denying all other pending motions, if any.(Signed by Judge Melinda Harmon) Parties notified.(rhawkins, 4)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
JOE CROWDER,

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Petitioner,
VS.
WILLIAM STEPHENS,
Respondent.

CIVIL ACTION NO. 4:14-CV-2939

OPINION ON DISMISSAL
Petitioner, an inmate in the Wynne Unit of the Texas Department of Criminal JusticeCorrectional Institutions Division (TDCJ-CID), filed a habeas corpus petition challenging his
parole denial on June 5, 2014, and two prison disciplinary convictions in July of 2014.1 (Docket
No. 1.) The federal courts are authorized to dismiss a federal habeas petition without ordering a
response where it plainly appears that the petitioner is not entitled to relief. See 28 U.S.C. §
2243; Rule 4, Rules Governing Section 2254 Cases in the United States District Courts. For the
reasons to follow, the Court determines that the petition lacks an arguable basis in law and must
be dismissed. See McDonald v. Johnson, 139 F.3d 1056, 1060 (5th Cir. 1998); Newby v.
Johnson, 81 F.3d 567, 568-69 (5th Cir. 1996).

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The petition also revisits Petitioner’s claims regarding his underlying 1995 aggravated
robbery conviction in the 182nd District Court of Harris County, Texas (Cause Number 665790).
However, the petition does not specifically identify this conviction as under attack (Docket No. 1
at ¶¶ 1-4) and Petitioner previously challenged this conviction in several habeas corpus suits in
this court without success. See Crowder v. Thaler, Case No. 4:11-cv-4130 (S. D. Tex. Nov. 22,
2011) (dismissed as time-barred Feb. 6, 2013); Crowder v. Stephens, Case No. 4:13-cv-2550 (S.
D. Tex. Aug. 29, 2013) (dismissed as successive Sept. 10, 2013); Crowder v. Stephens, Case No.
4:14-cv-1692 (S. D. Tex. Jun. 17, 2014) (dismissed as time-barred and successive Jun. 25, 2014).
The only new grounds for relief presented are Petitioner’s recent parole denial and disciplinary
convictions.
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ANALYSIS
A. Parole Denial
Petitioner’s application for habeas corpus relief challenges a denial of release to parole on
June 5, 2014. (Docket No. 1 at ¶¶ 15-19.) Although Petitioner checked the petition box
indicating he is challenging a “parole revocation proceeding” (Id. at 2), he does not allege that he
was ever released to parole and had his parole revoked. Instead, Petitioner merely alleges that he
was denied release to parole by the Board of Pardons and Paroles, despite being eligible for such
release. (Id. ¶ 13.)
An inmate does not have a constitutional right to conditional release prior to the
expiration of a valid sentence. Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S.
1, 7 (1979). Moreover, a Texas inmate has no constitutionally protected right to parole because
the relevant Texas statutes do not create an expectation of release that would implicate due
process considerations. Johnson v. Rodriguez, 110 F.3d 299, 305 (5th Cir. 1997); Allison v.
Kyle, 66 F.3d 71, 74 (5th Cir. 1995); Orellana v. Kyle, 65 F.3d 29 (5th Cir. 1995); Gilbertson v.
Texas Bd. of Pardons & Paroles, 993 F.2d 74 (5th Cir. 1993); Creel v. Keene, 928 F.2d 707 (5th
Cir. 1991); Williams v. Briscoe, 641 F.2d 274 (5th Cir. 1981). See also Board of Pardons v.
Allen, 482 U.S. 369, 378 n.10 (1987) (noting that “statutes or regulations providing that a parole
board ‘may’ release an inmate on parole do not give rise to a protected liberty interest”). Such
release is entirely speculative.

Madison v. Parker, 104 F.3d 765, 768 (5th Cir. 1997).

Furthermore, the possible effect of the award of good-time credit on a parole decision does not
create liberty interest. See Luken v. Scott, 71 F.3d 192, 193 (5th Cir. 1995) (citing Meachum v.
Fano, 427 U.S. 215, 229 n. 8 (1976)). Texas prisoners do not have a state or federal right to
good-time credit for satisfactory behavior while in prison. Madison, 104 F.3d at 768. Texas
prisoners have not had a protected right to accumulate good-time credit since 1977. Hallmark v.
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Johnson, 118 F.3d 1073, 1079 (5th Cir.) (citing Tex. Civ. Stat. Ann. art. 6181-1, § 4 (Vernon
1988)); see also Tex. Gov’t Code Ann. § 498.003 (a) (Vernon Supp. 2004) (“Good conduct time
is a privilege and not a right.”).
Thus, Petitioner’s allegations regarding denial of release to parole do not present a
cognizable basis for federal habeas corpus relief.
B. Disciplinary Convictions
Petitioner also challenges sanctions imposed as a result of two prison disciplinary
convictions on July 8, 2014, and July 16, 2014 (case numbers 20140318496 and 20140328975).2
(Id. ¶ 17.) However, the petition states that Petitioner is not eligible for release on mandatory
supervision (Id. ¶ 16) and that Petitioner did not lose any previously earned good-time credit as a
result of these disciplinary convictions (Id. ¶ 18). Public records show that on February 8, 1995,
Petitioner was sentenced in the 182nd District Court of Harris County, Texas (Cause Number
665790), to forty-five years imprisonment on a first-degree felony conviction for aggravated
robbery. (Harris County Clerk Website.) Under Texas law, an inmate is not eligible for release
to mandatory supervision if he has been convicted of first-degree felony aggravated robbery
under Section 29.03 of the Texas Penal Code. Tex. Gov’t Code Ann. § 508.149(a)(12) (Vernon
2013).
According to well settled precedent, sanctions that merely change the conditions of an
inmate’s confinement do not implicate due process concerns. Madison v. Parker, 104 F.3d 765,
768 (5th Cir. 1997). Limitations imposed upon commissary or recreational privileges, cell
restriction, and temporary solitary confinement are the type of sanctions that do not pose an

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Petitioner also references a 2005 disciplinary conviction in case number 20050182522 (Docket
No. 1 ¶ 17), however, any challenge to that conviction would be barred under the applicable
statute of limitations.
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atypical or significant hardship beyond the ordinary incidents of prison life. Id. Moreover, a
reduction in a prisoner’s classification status and the potential impact on good-time credit
earning ability, whether for purposes of parole or mandatory supervised release, are not protected
by the due process clause. Malchi v. Thaler, 211 F.3d 953, 958 (5th Cir. 2000).
To challenge a prison disciplinary conviction by way of a federal habeas petition, a
petitioner must have received a punishment sanction which included forfeiture of previously
accrued good-time credits and be eligible for mandatory supervised release.

Id.

Because

Petitioner is not eligible for mandatory supervised release, he has no constitutionally protected
interest in such release.

Accordingly, the sanctions imposed as a result of Petitioner’s

disciplinary convictions do not present a cognizable basis for federal habeas corpus relief.
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.”
McDaniel, 529 U.S. 473, 484 (2000) (internal quotations and citations omitted).

Slack v.
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). 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). For the reasons set forth above, the Court determines that Petitioner has not made a

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substantial showing of the denial of a constitutional right, therefore, a certificate of appealability
from this decision will be denied.
ORDER
Accordingly, the Court ORDERS that:
1.

Petitioner’s motion to proceed in forma pauperis (Docket No. 2) is
GRANTED.

2.

Petitioner’s application for writ of habeas corpus (Docket No. 1) is
DENIED.

3.

This action is DISMISSED with prejudice for failure to state a claim.

4.

A certificate of appealability is DENIED.

5.

All other pending motions, if any, are DENIED.

The Clerk will provide a copy of this order to the parties.
SIGNED at Houston, Texas, this 3rd day of February, 2015.

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MELINDA HARMON
UNITED STATES DISTRICT JUDGE

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