Parker v. Stephens
Filing
41
MEMORANDUM OPINION AND ORDER granting 36 MOTION for Summary Judgment with Brief in Support. The habeas corpus petition is dismissed with prejudice. COA is denied. (Signed by Judge Sim Lake) Parties notified.(gclair, 4)
United States District Court
Southern District of Texas
ENTERED
November 13, 2019
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOU STON D IV IS ION
David J. Bradley, Clerk
STEVE VIC PARKER ,
a/k/a Jerry Wilson,
TDCJ #590690,
Petitioner,
V.
CIVIL ACTION NO . H -15-1067
LORIE DAVIS , Director ,
Texas Department of Crim inal
Justice - Correctional
Institutions Division ,
Respondent .
MEMODAMDUM OPINION AND ORDER
While confined at a prison facility in Huntsville, Texas , the
petitioner, Steve
Parker, also known as Jerry Wilson (
TDCJ
#590690), filed a Petition for a Writ of Habeas Corpus by a Person
in State Custody (npetition' (
') Docket Entry No .
administration of his sentence .
challenging the
Pending before the court
Respondent's Motion for Summary Judgment w ith Brief
('Respondent's MSJ') (
A
' Docket Entry No. 36).
Support
The petitioner has
filed a reply (lpetitioner's Reply/) (
h
' Docket Entry No.
After
considering all of the pleadings, the state court records, and the
applicable law , the court will grant the Respondent's MSJ and will
dismiss this action for the reasons explained below .
Backcround and Procedural Historv
When the petitioner filed this action he was incarcerated by
the
Texas
Department
Crim inal
Justice
Correctional
Institutions Division CA
TDCJ/) at the Holliday Unit in Huntsville
'
as the result
more than one state court criminal conviction .
Those convictions and the sentences that the petitioner received
are summarized briefly below .
On April 25, 1991, the petitioner was convicted and sentenced
years' imprisonm ent for unauthorized use
a motor vehicle
Bell County Cause No . 39,082 .1 The petitioner was released from
prison
form of parole known as mandatory supervision
1992 .2
petitioner's supervised release was revoked and
returned to prison after he was convicted of two counts of theft
The
McLennan County Cause
petitioner was sentenced
serve concurrent term s of seven years'
imprisonment on each count of theft , running consecutively
20-year sentence that he received previously
number 39,082.4
the
Bell County cause
As a result , the seven-year sentences that
l
ludgment on Plea of Guilty or Nolo Contendere Before Court
E
andj Waiver of Jury Trial, Docket Entry No. 11-3, at 2.
z
Affidavit of Charley Valdez
(
nvaldez Affidavit' , Docket
o
Entry No . 11-4, at 3 .
3
ludgment
No . 11-2, at 2,
1Id .
Conviction by Jury Nunc Pro Tunc , Docket Entry
received in
were nstacked' on top of
'
he received previously
On April
2013,
supervision
error
1991 .5
petitioner was released on mandatory
after
incorrectly by prison officialsx
sentences
were
calculated
When TDCJ realized
mistake
an 'erroneous release warrant' issued
'
'
executed
following dayx
custody after
twenty-year sentence
June
2013, and was
petitioner returned
TDC J
hearing was conducted regarding his e r r o n e o u s
release .'
On April 23, 2015, the petitioner filed the pending Petition
under
2254,
U .S .C .
calculation
of
from
sen ten ce .g
The
granted
respondent's motion for summary judgment and dismissed the petition
August
challenged
2015, observing
petitioner had previously
calculation of his sentence
habeas proceeding that
filed
a previous federal
2013, concluding
b
see Ex rarte Wrigley, 178 S.
W.3d 828, 830-31 (
Tex. Crim . App .
2005) (
holding that pursuant to Tex. Code Crim. Proc. Art. 42.08(
b)
na stacked sentence does not begin to run on the date the defendant
makes parole on the original offense if his parole is revoked
before the trial court sentences the defendant for the stacked
offense/).
'
6
valdez A ffidavit , Docket Entry No . 11-4,
8Id . at
gpetkt kon , Docket Entry No .
12-18 .
pending
Petition was a
habeas relief that required prior authorization from the Fifth
Circuit under 28 U.S. . 5 2244(
C
b)
decision,
vacated
The
remanding
case
consideration . See Parker v . Davis,
F.3d
for
further
(
5th Cir. 2019).
Acknowledging that the petitioner's p leadings were 'convoluted,'
'
'
within
the
prohibition
applications :
second-or-successive
writ
seven-year sentences were improperly
stacked and ushould have started as soon as he returned to prison
and
were
otherwise
operate or
void
Constitutioni' and
'
under
various
clauses
the
'his rearrest and reprocessing
'
2013, as
well as the circumstances surrounding them , violated his right
due process under the Fourteenth Amendment .'
'
Id . at
State court records reflect that the petitioner raised 50th of
above-referenced claims
Corpus Seeking Relief from
he filed
charley Valdez,
2014.1
1
an Application
a Writ
Habeas
Final Felony Conviction Under Code
After considering
affidavit from
Program Supervisor
TDCJ
Classification and Records Department ,
state habeas corpus
l Memorandum Opinion and Order, Docket Entry No.
o
H state Habeas Applicationr Docket Entry No . 13-24, pp .
court found that the petitioner's sentence was correctly calculated
and recommended denying reliefx z
The Texas
Appeals agreed and denied relief without
Criminal
written order on
findings made by the trial court on February
2015 .1
3
The respondent now moves for summary judgment, arguing that
the petitioner's challenge to the calculation of
stacked sentences in
not actionable
federal habeas corpus proceedingx l
respondent argues further that
proceedings held following
warrant in Claim
release
The
petitioner's challenge
arrest
the erroneous release
which asserts that he was entitled to immediate
mandatory supervision , is moot because Parker has been
released from custody
has obtained
relief that
WaS
seekingxs
Standard of Review
To the extent that the petitioner's claims were raised and
rejected
state
his Petition
governed by the Anti-
Terrorism and Effective Death Penalty Act (
the 'AEDPA/ , codified
A
Q
as amended
28
5 2254(
d).
Under the AEDPA
federal
H Findings of Fact and Conclusions of Law on an Application for
Writ of Habeas Corpus, Docket Entry No . 13-22, pp . 16-19.
HA ction Taken on Writ No . 22 ,317-20, Docket Entry No .
MRespondent 's MSJ , Docket Entry No . 36, pp .
l (d
5(
habeas corpus court may not grant relief unless the state court's
adjudication nresulted
involved
an
Federal
unreasonable
law ,
as
state
U.S.C.
clearly
by
Supreme
established
Court
the
2254 4 (
d) 1).
court's decision
established federal
contrary
application
determ ined
United States g.j'
'
VA
decision
deemed
contrary
clearly
if it reaches a legal conclusion in direct
conflict with a prior decision of
reaches
Supreme
Supreme Court on materially
indistinguishable facts.' Matamoros v . Stephens, 783 F.3d 212,
'
(
5th Cir. 2015) (
citations omitted); see also Williams v. Tavlor,
l20
application
1495, 1519-20 (
2000).
To constitute an uunreasonable
clearly established federal
state court's
holding umust be objectively unreasonable, not merely wrong; even
clear error will not suffice .' Woods v . Donald ,
'
1697, 1702
(
quoting White v. Woodall,
(
2014)).
required
presented
satisfy
habeas petitioner
'show that the state court's ruling on the claim being
federal
was
lacking
justification
there was an error well understood and comprehended in existing 1aw
beyond any possibility for
Harrington v . Richter,
Id. (
quoting
786-87 (
2011)).
111 . Discussion
A.
Claim 1 : Petitioner's Claim That His Sentences Were Improperly
Stacked
Liberally construed , the petitioner contends in Claim
that
the concurrent seven-year prison sentences that he received for his
Mcclennan County theft conviction in 2010 were improperly stacked
with the zo-year prison sentence that he had previously received in
1991, when he returned to prison after the revocation of his
parole x 6 He argued in state court that his seven -year sentences
could not be stacked because he was on mandatory supervision from
his 1991 conviction when he committed the thefts that resulted in
a new conviction
2010 and , therefore , that the seven-year
sentences that he received from Mcclennan County
should have
commenced immediately when they were entered against him in 2010,
rather than calculated to run consecutively x 7
The state habeas corpus court rejected this claim and found
that Parker 's sentences were properly calculated following his
conviction for theft in 2010, which also resulted in the revocation
of his supervised release on parole x 8 In reaching that conclusion
the state court relied on the affidavit from Charley Valdez, who
explained that the sentences Parker received for theft in 2010 were
l petition , Docket Entry No .
6
pp .
Ustate Habeas Application , Docket Entry No . 13-24, pp . 10-11 .
l8
Findings of Fact and Conclusions of Law on an Application for
Writ of Habeas Corpus, Docket Entry No . 13-22, pp . 16-19 .
requ ired to be ustacked' or calculated as consecutive , and not
'
concurrent with the previous 20-year sentence that he received in
1991 , based on an interpretation of state law that determines when
a sentence that is second in time commences to run :
Although Applicant's supervision was revoked after he
received the new stacked sentences, because he was
released to mandatory supervision and not on parole on
(
June 6, 2008J, his sentences are being calculated as
consecutive and not concurrent . TDCJ has interpreted
Ex parte Wriqley as being applicable only to offenders
released to parole and not to mandatory supervision .
Ex parte Wriqlev, l78 S. .
W 3d 828, 831 (
Tex . Crim . App .
2005) ( stacked sentence does not begin to run on the
a
date the defendant makes parole on the original offense
if his parole is revoked before the trial court sentences
the defendant for the stacked offense)
When an offender
has consecutive sentences, the second sentence will begin
when the first sentence ceases to operate . Mandatory
supervision is not an event that causes an offender 's
first sentence to cease to operate . Ex parte Cowan , 171
S. . 89O (
W 3d
Tex. Crim . App . 2005), Ex parte Kuester, 21
S.
W.3d 264 (
Tex . (
Crim .) App . 2000). 9
1
The state court found that Valdez's affidavit was utrue , correct,
and worthy of belief ./ o
'z
To the extent that the state habeas corpus court found that
Valdez's affidavit was credible and that the facts asserted were
true , findings such as these are entitled to substantial deference
on federal habeas review . See Coleman v . Quarterman ,
541 (
5th Cir . 2006) (
citing Guidry v . Dretke, 397 F.3d 306, 326
(
5th
2005)).
The
state
court's
factual
findings
and
lvaldez Affidavit, Docket Entry No . 11-4 ,
g
MFindings of Fact and Conclusions of Law on an Application for
Writ of Habeas Corpus , Docket Entry No . l3-22 , pp . 16-19 .
8
credibility determinations are presumed correct for purposes of
federal habeas corpus rev iew unless they are rebutted with nclear
and convincing evidence .'
/
Cockrell,
F. 941,
3d
not present ev idence
28 U .
S.C. 5 2254 ( 1); Valdez v.
e)(
(
5th Cir. 2001)
challenge any
The petitioner does
the fact findings or
credibility determ inations made by the state habeas corpus court .
Likewise , he has not shown that the state court 's denial of relief
'was based on an unreasonable determination of the facts in light
N
the evidence presented in the State court proceeding .'
'
U .S .C .
28
2254 ( )( ) .
d 2
In response to Respondent's MSJ , the petitioner points to a
dissent from a decision in a sub sequent state habeas proceeding
that he filed after he submitted the federal Petition in this case .
In that dissenting opinion, which issued on June 28, 2017, a judge
who was on the Texas Court of Criminal Appeals questioned whether
the petitioner 's seven -year sentences for theft should have been
concurrent rather than stacked and considered discharged based on
a 2016 court decisionz that issued after the state habeas corpus
l
court issued its decision on the petitioner's pending claim s in
2015 .2 Because the issue had been considered previously on state
2
z Exhibit G, Dissenting Opinion in Ex parte Steve Vic Parker ,
l
aka Jerry Wilson , Writ No . 22,317-25, Docket Entry No . 37-1,
pp. 16-18 (
citing Byrd v. State, 499 S. . 443 (
W 3d
Tex . Crim . App.
2016).
2 Action Taken on Writ No . 22,317-20, Docket Entry No . 13-19
2
p. 1.
habeas review, a majority
the Texas Court of Criminal Appeals
dismissed that claim under Article 11.07 j 4 ( of the Texas Code
a)
Criminal
Procedure , which
precludes
rev iew
of
subsequent
applications unless certain exceptions apply .2
3
Review of the decision reached by
court
2015, which is the subject
state habeas corpus
the pending Petition,
confirms that the ultimate decision to deny relief was based on an
interpretation of state law regarding whether the trial court
correctly
imposed
a
stacked
sentence
2010 .
well
established that a state court 's decision based on state 1aw is
entitled to considerable deference on federal habeas review .
Arnold v . Cockrell, 3O6 F.3d
See
(
5th Cir . 2002) C' will
We
take the word of the highest court on criminal matters of Texas as
to the interpretation of its law , and we do not sit to rev iew that
state's
interpretation
of
own
law'
')
(
quoting
Seaton v .
Procunier, 75O F. 366, 368 (
2d
5th Cir 1985)).
The petitioner has not shown that the state habeas corpus
court 's decision to deny relief was incorrect when it was made in
2015 .2 Even assuming that there was an error under state law , the
4
2
3see Ex parte
Steve V ic Parker , aka Jerry Wilson , Writ
No . 22,317-25, slip op . pp. 1-2 (
Tex . Crim . App . June 28, 2017),
available at Texas Judicial Branch website, http ://search.txcourts.
gov (
last visited Nov . 6, 2019)
2
4To the extent that the petitioner now claims that he is
entitled to relief for reasons that he attempted to litigate in
state court after he filed the Petition in this case in 2015, this
(
continued .- )
10
petitioner cannot show that he is entitled to federal habeas corpus
relief . The Supreme Court has repeatedly held that 'federal habeas
'
corpus relief does not lie for errors of state law .'
'
Estelle v .
McGuire, 502 U. . 62, 67-68 (
S
1991); Lewis v . Jeffers, 497 U. . 764,
S
(
1990); Pulley v . Harris,
(
1984).
' state
'
A
prisoner seeking federal rev iew of his conv iction pursuant to 28
U .S .C .
2254 must assert a v iolation of a federal constitutional
right.'
'
Lawrence v . Lensing, 42 F. 255, 258 (
3d
5th Cir . 1994).
Federal habeas corpus relief w ill not issue
state
correct errors of
constitutional , statutory , or procedural
federal issue is also presented .
law , unless a
Pemberton v . Collins, 991 F .2d
1218, 1223 (
5th Cir . 1993).
The petitioner does not establish that the state habeas corpus
court 's decision
regarding
the
calculation
of
the
seven-year
sentences that he received in McLennan County Cause number 2010-
M t.- continued)
new claim has not been properly raised in this proceeding , which
concerns only whether relief was improperly denied in 2015 . The
petitioner has not requested leave to amend or supplement his
Petition to include this argument as a new claim based on a change
in state court decisional law referenced by the dissenting opinion
that he provides . See Mccoskey v . Thaler, 478 F . App 'x 143, 2012
WL 1933570 at *9 (
5th Cir. May 29, 2012) (
citing Fed . Civ . P. 15 (
a)
and United States v . Sangs, 31 F App 'x 152 , 2001 WL 1747884 , at *1
(
5th Cir. Dec. 11, 2001)
(
affirming, in 5 2255 context, the
district court 's refusal to consider an issue raised for the first
time in reply to the government's answer to a habeas petition)
(
citations omittedl).
More importantly, the error, if any,
concerns an issue of state 1aw that the Texas Court of Criminal
Appeals has considered and declined to remedy, rejecting the claim
under Tex . Code Crim . Proc. Art. 11.07 5 4(
a).
447-C1
violated
clearly
established
United States Supreme Court .
law
decided
by
the
Absent a showing that the state
court's decision to deny relief was contrary to or involved an
unreasonable
application
of
the
1aw
as
established
by
the
United States Supreme Court, the petitioner has not established
that he
entitled to federal habeas relief .
respondent
B.
Therefore, the
entitled to summary judgment on Claim
Claim 2 : Petitioner's Claim That He is Entitled to Immediate
Release
In Claim 2, the petitioner contends that he was denied due
process when he was arrested and
returned
TDCJ
in
2013 ,
following his erroneous release from prison .2 He contends that the
5
procedures employed were defective and that he is entitled to
immediate release because he shou ld have been allowed to remain on
mandatory supervision .z6
The respondent correctly notes that this claim
n ow mo ot
because the petitioner has been released from prison onto mandatory
supervision .
The
Supreme Court has explained
petition becomes moot and must be dismissed
present l a case or controversy under Article
sq
that
habeas
uno longer
2 of the
Constitution .' Spencer v . Kemna, 118 S . Ct . 978, 983 (
'
1998); see
also Already, LLC v Nike, Incw
zs
petition , Docket Entry No .
726-27 (
2013)
pp .
26 .; aee also Petitioner 's Reply to the Respondent 's Motion
Id
for Summary Judgment , Docket Entry No . 37, pp . 5-6, 10-11 .
12
(
holding that a case becomes moot and no longer presents an actual
case or controversy for purposes of subject matter jurisdiction
under Article III of the United States Constitution uwhen the
issues presented are no longer 'live' or the parties lack a legally
cognizable interest in the outcome.'
') (
citation and internal
quotation marks omitted).
Because
the
petitioner
has
been
released
to
mandatory
superv ision there is nothing for this court to remedy where his
allegations in Claim 2 are concerned . A s a result, Claim 2 is now
moot . See Spencer , 1l8
at 983 . Therefore , Respondent's MSJ
on this issue w ill be granted and this case will be dismissed .
IV .
Rule
C ER T IFICA T E OF A PP EA LA BIL ITY
the Rules Governing Section
Cases requ ires a
district court to issue or deny a certificate of appealability when
entering a final order that
adverse
the petitioner .
certificate of appealability w ill not issue unless the petitioner
makes
substantial showing of the den ial
a constitutional
right/' 28 U .
'
S.C. 5 2253 ( 2), which requires a petitioner to
c)(
demonstrate uthat reasonable jurists would find the district
court 's
assessment
of
constitutional claims debatable or
wrong .' Tennard v . Dretke , 124 S .
'
Slack v . McDaniel, 12O
2562, 2565 (
2004) (
quoting
Ct. 1595, 1604 (
2000)). 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
l
13
petition states a valid claim
the denial of a con stitutional
rightz' but also that they 'would find it debatable whether the
'
'
district court was correct in its procedural ru ling .' Slack ,
'
Ct. at 1604.
whether any
ruling
Because reasonable jurists would not debate
in
this case was
correct
or
whether
the
petitioner states a valid claim for relief from the challenged
state court decision that was made
2015, a certificate of
appealability will not issue .
CONCLUSION
Based on the foregoing , the court ORDERS as follows :
Respondent's Motion for Summary Judgment with Brief
Support (
Docket Entry No. 36) is GRANTED.
The habeas corpus petition filed by Steve Vic Parker
a/k/a Jerry Wilson is DISMISSED with prejudice.
A certificate of appealab ility is DENIED .
The Clerk will provide a copy of this Memorandum Opinion and
Order to the parties .
SIGNED at Houston , Texas , on this 13th day of November, 2019.
A
SIM LA K E
SENIOR UNITED STATES DISTRICT JUDGE
14
Disclaimer: Justia Dockets & Filings provides public litigation records from the federal appellate and district courts. These filings and docket sheets should not be considered findings of fact or liability, nor do they necessarily reflect the view of Justia.
Why Is My Information Online?