Jackson v. Stephens

Filing 15

MEMORANDUM AND ORDER granting 12 MOTION for Summary Judgment with Brief in Support, and denying 1 Petition for Writ of Habeas Corpus. No certificate of appealability shall issue. (Signed by Judge Kenneth M Hoyt) Parties notified. (rosaldana, 4)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
BENJAMIN JAMES JACKSON,
Plaintiff,
VS.
LORIE DAVIS,
Respondent.

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March 24, 2017
David J. Bradley, Clerk

CIVIL ACTION NO. 4:15-CV-3761

MEMORANDUM AND ORDER
This case is before the Court on Petitioner Benjamin James Jackson’s Petition for Writ of
Habeas Corpus and Respondent Lorie Davis’ motion for summary judgment. Having carefully
considered the Petition, the motion, and the arguments and authorities submitted by the parties,
the Court is of the opinion that Davis’ motion should be granted, and Jackson’s Petition for Writ
of Habeas Corpus should be DENIED.
I.

Background
On September 9, 1991, Jackson pled guilty to murder in the 338thDistrict Court of Harris

County. He was sentenced to 50 years imprisonment. On April 14, 2015, the Texas Board of
Pardons and Paroles recommended that Jackson be denied release on parole and set a new date
on which he is eligible to reapply.
Jackson filed two state habeas corpus applications challenging the denial of parole. The
Texas Court of Criminal Appeals denied relief without written order on the findings of the trial
court. Ex Parte Jackson, No. 84,063-01 and -02 (Tex. Crim. App. Nov. 25, 2015).
On December 29, 2015, Jackson filed his initial federal petition. Respondent moved for
summary judgment on April 7, 2016, and Jackson responded to the motion on December 8,
2016.

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II. The Applicable Legal Standards
A.

The Anti-Terrorism and Effective Death Penalty Act

This federal petition for habeas relief is governed by the applicable provisions of the
Antiterrorism and Effective Death Penalty Act (“AEDPA”). See Lindh v. Murphy, 521 U.S. 320,
335-36 (1997). Under the AEDPA federal habeas relief based upon claims that were adjudicated
on the merits by the state courts cannot be granted unless the state court’s decision (1) “was
contrary to, or involved an unreasonable application of, clearly established federal law, as
determined by the Supreme Court of the United States” or (2) “was based on an unreasonable
determination of the facts in light of the evidence presented in the State court proceeding.” 28
U.S.C. § 2254(d); Kitchens v. Johnson, 190 F.3d 698, 700 (5th Cir. 1999). For questions of law
or mixed questions of law and fact adjudicated on the merits in state court, this court may grant
relief under 28 U.S.C. § 2254(d)(1) only if the state court decision “was contrary to, or involved
an unreasonable application of, clearly established [Supreme Court precedent].” See Martin v.
Cain, 246 F.3d 471, 475 (5th Cir.), cert. denied, 534 U.S. 885 (2001). Under the “contrary to”
clause, this court may afford habeas relief only if “‘the state court arrives at a conclusion
opposite to that 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 set of materially
indistinguishable facts.’” Dowthitt v. Johnson, 230 F.3d 733, 740-41 (5th Cir. 2000), cert.
denied, 532 U.S. 915 (2001) (quoting Williams v. Taylor, 529 U.S. 362, 406 (2000)).
The “unreasonable application” standard permits federal habeas relief only if a state court
decision “identifies the correct governing legal rule from [the Supreme Court] cases but
unreasonably applies it to the facts of the particular state prisoner’s case” or “if the state court
either unreasonably extends a legal principle from [Supreme Court] precedent to a new context

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where it should not apply or unreasonably refuses to extend that principle to a new context where
it should apply.” Williams, 529 U.S. at 406. “In applying this standard, we must decide (1) what
was the decision of the state courts with regard to the questions before us and (2) whether there is
any established federal law, as explicated by the Supreme Court, with which the state court
decision conflicts.” Hoover v. Johnson, 193 F.3d 366, 368 (5th Cir. 1999). A federal court’s
“focus on the ‘unreasonable application’ test under Section 2254(d) should be on the ultimate
legal conclusion that the state court reached and not on whether the state court considered and
discussed every angle of the evidence.” Neal v. Puckett, 239 F.3d 683, 696 (5th Cir. 2001),
aff’d, 286 F.3d 230 (5th Cir. 2002) (en banc), cert. denied sub nom. Neal v. Epps, 537 U.S. 1104
(2003). The sole inquiry for a federal court under the ‘unreasonable application’ prong becomes
“whether the state court’s determination is ‘at least minimally consistent with the facts and
circumstances of the case.’” Id. (quoting Hennon v. Cooper, 109 F.3d 330, 335 (7th Cir. 1997));
see also Gardner v. Johnson, 247 F.3d 551, 560 (5th Cir. 2001) (“Even though we cannot
reverse a decision merely because we would reach a different outcome, we must reverse when
we conclude that the state court decision applies the correct legal rule to a given set of facts in a
manner that is so patently incorrect as to be ‘unreasonable.’”).
The AEDPA precludes federal habeas relief on factual issues unless the state court’s
adjudication of the merits was based on an unreasonable determination of the facts in light of the
evidence presented in the state court proceeding. See 28 U.S.C. § 2254(d)(2); Hill v. Johnson,
210 F.3d 481, 485 (5th Cir. 2000), cert. denied, 532 U.S. 1039 (2001). The state court’s factual
determinations are presumed correct unless rebutted by “clear and convincing evidence.” 28
U.S.C. § 2254(e)(1); see also Jackson v. Anderson, 112 F.3d 823, 824-25 (5th Cir. 1997), cert.
denied, 522 U.S. 1119 (1998).

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B.

Summary Judgment Standard in Habeas Corpus Proceedings

In ordinary civil cases, a district court considering a motion for summary judgment is
required to construe the facts of the case in the light most favorable to the non-moving party.
See Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986) (The “evidence of the nonmovant is to
be believed, and all justifiable inferences are to be drawn in his favor”). “As a general principle,
Rule 56 of the Federal Rules of Civil Procedure, relating to summary judgment, applies with
equal force in the context of habeas corpus cases.” Clark v. Johnson, 202 F.3d 760, 764 (5th Cir.
2000). This principle is limited, however; Rule 56 applies insofar as it is consistent with
established habeas practice and procedure. See Smith v. Cockrell, 311 F.3d 661, 668 (5th Cir.
2002) (citing Rule 11 of the Rules Governing Section 2254 Cases). Therefore, § 2254(e)(1) –
which mandates that findings of fact made by a state court are “presumed to be correct” –
overrides the ordinary summary judgment rule that all disputed facts must be construed in the
light most favorable to the nonmoving party. See id. Unless the petitioner can “rebut[ ] the
presumption of correctness by clear and convincing evidence” regarding the state court’s
findings of fact, those findings must be accepted as correct. See id. Thus, the Court may not
construe the facts in the state petitioner’s favor where the prisoner’s factual allegations have been
adversely resolved by express or implicit findings of the state courts, and the prisoner fails to
demonstrate by clear and convincing evidence that the presumption of correctness in 28 U.S.C. §
2254(e)(1) should not apply. See Marshall v. Lonberger, 459 U.S. 422, 432 (1983); Sumner v.
Mata, 449 U.S. 539, 547 (1981); Emery v. Johnson, 940 F.Supp. 1046, 1051 (S.D. Tex. 1996),
aff’d, 139 F.3d 191 (5th Cir. 1997).

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III.

Analysis
Jackson complains that the Board’s decision denying him parole violates his rights to due

process and equal protection under the Fourteenth Amendment. He states in conlcusory fashion
that the Board did not consider evidence that he is rehabilitated.
A prisoner has no right to release on parole. Rather, parole is left to the discretion of the
parole board. See TEX. GOV'T CODE ANN. § 508.141.
Because it is entirely speculative whether a prisoner will be
released on parole, the court has determined “that there is no
constitutional expectancy of parole in Texas.” [Madison v.
Parker], [104 F.3d 765,] 768 [(5th Cir. 1997)]. Therefore, any
delay in [petitioner]'s consideration for parole cannot support a
constitutional claim.
Malchi v. Thaler, 211 F.3d 953, 957 (5th Cir. 2000). Thus, Jackson’s complaint about the denial
of parole does not state a cognizable claim for relief.
Even if the denial of parole could state a claim for relief under some circumstances,
Jackson’s petition would fail. Jackson contends that his parole proceeding violated due process,
but he cites nothing in the record supporting this claim. “Absent evidence in the record, a court
cannot consider a habeas petitioner’s bald assertions on a critical issue in his pro se petition,
unsupported and unsupportable by anything else contained in the record, to be of probative
evidentiary value.” Ross v. Estelle, 694 F.2d 1008, 1011 (5th Cir. 1983). “The . . . presentation
of conclusory allegations unsupported by specifics is subject to summary dismissal. . . .”
Blackledge v. Allison, 431 U.S. 63, 74 (1977).
Jackson’s claim that the denial violates his right to equal protection is equally unavailing.
He offers only a conclusory allegation that other, similarly situated, inmates have received
parole.

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IV.

Conclusion
For the foregoing reasons, Jackson fails to raise a viable claim for habeas relief. His

petition and amended petition must be dismissed with prejudice for the reasons stated in this
opinion.
V.

Certificate of Appealability
Jackson has not requested a certificate of appealability (“COA”), but this Court may

determine whether he is entitled to this relief in light of the foregoing rulings. See Alexander v.
Johnson, 211 F.3d 895, 898 (5th Cir. 2000) (“It is perfectly lawful for district court’s [sic] to
deny COA sua sponte. The statute does not require that a petitioner move for a COA; it merely
states that an appeal may not be taken without a certificate of appealability having been issued.”)
A petitioner may obtain a COA either from the district court or an appellate court, but an
appellate court will not consider a petitioner’s request for a COA until the district court has
denied such a request. See Whitehead v. Johnson, 157 F.3d 384, 388 (5th Cir. 1988); see also
Hill v. Johnson, 114 F.3d 78, 82 (5th Cir. 1997) (“[T]he district court should continue to review
COA requests before the court of appeals does.”). “A plain reading of the AEDPA compels the
conclusion that COAs are granted on an issue-by-issue basis, thereby limiting appellate review to
those issues alone.” Lackey v. Johnson, 116 F.3d 149, 151 (5th Cir. 1997).
A COA may issue only if the petitioner has made a “substantial showing of the denial of
a constitutional right.” 28 U.S.C. § 2253(c)(2); see also United States v. Kimler, 150 F.3d 429,
431 (5th Cir. 1998). A petitioner “makes a substantial showing when he demonstrates that his
application involves issues that are debatable among jurists of reason, that another court could
resolve the issues differently, or that the issues are suitable enough to deserve encouragement to

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proceed further.” Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.), cert. denied, 531 U.S.
966 (2000). The Supreme Court has stated that:
Where a district court has rejected the constitutional claims on the
merits, the showing required to satisfy § 2253(c) is
straightforward: The petitioner must demonstrate that reasonable
jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.
Slack v. McDaniel, 529 U.S. 473, 484 (2000).
This Court has carefully considered Jackson’s claims. The Court finds that the claims are
foreclosed by clear, binding precedent.

This Court concludes that under such precedents,

Jackson has failed to make a “substantial showing of the denial of a constitutional right.” 28
U.S.C. § 2253(c)(2). This Court concludes that Jackson is not entitled to a certificate of
appealability on his claims.
VI.

Order
For the foregoing reasons, it is ORDERED as follows:
A.

Respondent Lorie Davis’ motion for summary judgment (Dkt. No. 12) is
GRANTED;

B.

Petitioner Benjamin James Jackson’s Petition for Writ of Habeas Corpus (Dkt.
No. 1) is in all respects DENIED; and

C.

No certificate of appealability shall issue.

The Clerk shall notify all parties and provide them with a true copy of this Memorandum
and Order.
SIGNED on this 24th day of March, 2017.
___________________________________
Kenneth M. Hoyt
United States District Judge

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