Richardson v. Stephens
MEMORANDUM AND ORDER granting 12 MOTION for Summary Judgment. The Court determines that the respondents Motion for Summary Judgement should be treated as a Motion to Dismiss and, therefore, dismiss the petitioners writ without prejudice. (Signed by Judge Kenneth M Hoyt) Parties notified.(chorace)
United States District Court
Southern District of Texas
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
DAMON JEROME RICHARDSON,
WILLIAM STEPHENS, et al,
June 29, 2017
David J. Bradley, Clerk
CIVIL ACTION NO. 4:16-CV-1143
MEMORANDUM AND ORDER
The petitioner, Damon Jerome Richardson, seeks a writ of habeas corpus challenging The
Board of Pardons and Paroles’ [“Board”] denial of his release. The respondent has filed a
motion for summary judgement, arguing that the petitioner is not entitled to federal habeas
corpus relief. The petitioner has not filed a response at this time. After considering the petition,
the motion, and the arguments and authorities submitted, the Court determines that the
respondent’s motion for summary judgement should be treated as a motion to dismiss and,
therefore, dismiss the petitioner’s writ without prejudice.
While awaiting trial on a criminal charge, the petitioner was placed under surveillance in
connection with a drug operation that he managed. The investigation resulted in the seizure of
approximately three kilograms of cocaine as well as over $225,000.00. The petitioner pled not
guilty to the offense charged and proceeded to trial on August 27, 1990. A jury found the
petitioner guilty of engaging in organized criminal activity. On August 31, 1990, the petitioner
was sentenced to life imprisonment in the Texas Department of Criminal Justice (“TDCJ”) and
was fined $10,000.00. In his federal writ for habeas corpus, the petitioner challenges only the
denial of parole on the underlying conviction.
In September of 2015, the Board granted the petitioner a status which status would allow
the petitioner a future parole release date. On February 17, 2016, the Board withdrew that status
based on substance abuse, a finding that the petitioner was predisposed to commit future criminal
acts and other new information. Two months later, the petitioner filed a federal writ of habeas
corpus challenging the Board’s decision. The record reflects that the petitioner has yet to
challenge the Board’s decision through a state writ of habeas corpus.
The petitioner’s federal writ challenges the Board’s decision concerning his parole
release status. In this regard, the petitioner argues that he is entitled to habeas relief for the
1) The parole system is arbitrary and capricious because letters and petitions provided by
victims, prosecutors, law enforcement personnel and the general public opposing the
petitioner’s parole contain inaccurate information about his background or circumstances
of his offense, and bear no relationship to the likelihood of harm to the public and the
likelihood of a favorable parole outcome.
2) The acceptance and consideration of protest letters when making a parole determination
is a violation of Equal Protection.
3) The Board violated his rights when it considered unadjudicated offenses or offenses
extraneous to his conviction.
Accordingly, the petitioner requests that his parole status be reinstated so that he may be released
The Respondent’s Contentions
The respondent seeks summary judgment based on the fact that the petition presents
unexhausted claims and, therefore, should be dismissed without prejudice. The respondent
asserts that, based upon 28 U.S.C. § 2254 (b)(c), a petitioner is required to first exhaust all state
court remedies before filing in federal court. Therefore, the respondent claims, because the
petitioner failed to challenge the Board’s denial of his parole by first filing in state court, his
claim is unexhausted and must be dismissed. Accordingly, the respondent contends that the
petitioner’s request for federal habeas relief should be dismissed without prejudice.
Federal habeas corpus proceedings are governed by provisions of the Antiterrorism and
Effective Death Penalty Act (“AEDPA”). Under the AEDPA, a federal court may not grant
habeas relief when the claims are adjudicated by a state court based on the merits, unless the
decision of the state court (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 facts in light of evidence presented in the State
court proceeding.” 28 U.S.C. § 2254(d); Kitchens v. Johnson, 190 F.3d 698, 700 (5th Cir. 1999).
The AEDPA requires, however, that a prisoner first exhaust all available state remedies
before raising a claim in a federal habeas petition. 28. U.S.C. § 2254 (b)(c). Habeas corpus relief
sought by a person in custody will not be granted unless the petitioner has exhausted available
remedies in state court. 28 U.S.C. § 2254 (b)(1)(A). An exception exists where there is an
absence of a state corrective process, or where circumstances exist that render the process
ineffective in protecting the rights of the applicant. See [§ 2254 (b)(1)(B)(i)(ii)].
The petitioner has raised three claims for federal habeas relief. The respondent contends
that the claims are procedurally barred because the petitioner failed to properly exhaust available
state remedies. A review of the application and motion reflects that the petitioner bypassed
available state remedies before presenting his claims in federal court. The respondent also
argues that because the petitioner has not shown extraordinary circumstances, ineffectiveness of
the administrative process, or prejudice, that this Court must find the petitioner’s claims
unexhausted. The petitioner does not dispute the facts or law presented by the respondent. The
petitioner has not filed a response to the respondent’s motion for summary judgement, nor has he
provided any information in his pleadings that could be construed to fit an exception to the
procedural bar. Therefore, the Court concludes that the petitioner’s claims are unexhausted and
therefore subject to dismissal without prejudice.
Accordingly, the Court concludes that the petitioner has failed to properly exhaust his
claims in state court and, therefore, the Court may not consider the petitioner’s writ. Thus, the
Court DISMISSES the petitioner’s writ without prejudice.
CERTIFICATE OF APPEALABILITY
Petitioner 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
a 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
proceed further.” Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.), cert. denied, 531 U.S.
This Court has carefully considered each of the petitioner’s claims. While the issues
raised are clearly important and deserving of the closest scrutiny, this Court finds that each of the
claims is foreclosed by clear, binding precedent.
This Court concludes that under such
precedents, the petitioner has failed to make a “substantial showing of the denial of a
constitutional right.” § 2253(c)(2).
It is so Ordered.
SIGNED on this 29th day of June, 2017.
Kenneth M. Hoyt
United States District Judge
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