Flores v. Davis
Filing
15
MEMORANDUM OPINION AND ORDER denying as moot 9 Motion for Leave to Stay the Proceedings in Abeyance; granting 13 MOTION for Summary Judgment with Brief in Support. COA is denied. (Signed by Judge Sim Lake) Parties notified.(gclair, 4)
United States District Court
Southern District of Texas
ENTERED
November 09, 2016
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
David J. Bradley, Clerk
JOEL FLORES, TDCJ #818608,
Petitioner,
CIVIL ACTION NO . H -16-2306
LORIE DAVIS , Director,
Texas Department of Criminal
Justice , Correctional
Institutions Division ,
Respondent .
MEMODAHDUM OPIN ION AND ORDER
The petitioner, Joel Flores
(
TDCJ #818608), has filed a
Petition for a Writ of Habeas Corpus By a Person in State Custody
(upetition' (
') Docket Entry No.
challenging the calculation of
his sentence . The petitioner has also filed a ' Motion for) Leave
'E
Stay the Proceeding in Abeyance' (uMotion to Stay' pending
'
')
review of his claims in state court (
Docket Entry No.
which
will be denied as moot . Noting that the petitioner's claims have
been rejected by the Texas Court of Criminal Appeals, the
respondent has filed a Motion for Summary Judgment with Brief in
Support
('
l
Respondent's Motion')
'
(
Docket Entry No. 13).
The
petitioner has filed a Traverse to the Respondent's Motion for
Summary
Judgment
to
Dismiss
Traverse/ (
') Docket Entry No .
With
Prejudice
(upetitioner's
After considering a11 of the
pleadings , the state court records, and the applicable law , the
court will grant Respondent 's Motion and will dism iss this action
for the reasons explained below .
Backqround
Flores is currently incarcerated in the Texas Department of
Criminal Justice
the
result
February
Correctional Institutions Division (A
'TDCJ' as
')
felony
convictions
from
Harris
County x
On
1998, Flores was convicted of possession with intent
to deliver cocaine in Harris County cause number 761902 .2 Flores
received an l8-year prison sentence in that case .3
On July l3, 2006, Flores was released on parole from the
sentence that he was serving in cause number 761902 .4
While on
parole , Flores was arrested and charged with aggravated assault
with a deadly weapon in Harris County cause number 144878901010 .5
On August 3l, 2015 , Flores was convicted of those charges and
sentenced to two years ' imprisonment .6 His parole in cause number
761902 was also revoked and he returned
to
TDCJ
custody
on
September 25, 2015.7
l
Affidav it of Charley Valdez , Exhibit
Motion , Docket Entry No . 13-1 , p . 3 .
2Id .
3Id .
4Id .
5Id .
6Id .
7Id .
-
2-
A
to
Respondent's
When Flores returned to TDCJ , he learned that he was not
eligible for credit on the sentence that he was serving
cause
number 716902 for the time he spent out of custody on parole ( e.,
iv
nstreet-time credit'
')
On October
administrative Time
Dispute
calculation
sentence .g
of
his
2015, Flores filed an
Resolution
on
Form
October
to challenge
the
2015, prison
officials confirmed that Flores was not eligible for street time
Pursuant
508.
283(
b)
the Texas Government Code because of
his conviction for aggravated assau lt with a deadly weapon x o
On February 1 , 2016, Flores filed an Application for a Writ of
Habeas Corpus under Article 11 .07 of the Texas Code of Criminal
Procedure to challenge the calculation of the sentence he received
in Harris County cause number 761902 .1 Flores argued that he was
1
denied street time in violation of the Due Process Clause of the
Fourteenth Amendment x z On June
2016 , the state habeas corpus
court entered findings of fact and concluded that Flores was not
entitled to relief x 3
The Application was then forwarded to the
Texas Court of Criminal Appeals .
8Id .
9Id .
l0 d
I
l Application for
l
No . 12-4 , pp . 5-21 .
a Writ
of Habeas Corpu s, Docket Entry
l
2Id . at 10-11.
H state 's Proposed Findings of Fact, Conclusions of Law , and
Order
C'
Findings
pp . 64-68 .
and
Conclusions'
'), Docket
Entry
No . 12-4,
On July 25, 2016, Flores filed the pending Petition x4 Flores
argues as he did in state court that he was denied street time in
violation
of
the
Fourteenth
Amendment
Due
Process
Clause x s
Acknowledging that the Texas Court of Crim inal Appeals had not yet
completed its review of his claims at the time he submitted h is
Petition , Flores also filed a Motion to Stay .l Shortly thereafter ,
6
on August 24 , 2016, the Texas Court of Crim inal Appeals denied
Flores ' Application w ithout a written order based on findings made
by the state habeas corpus court x ?
Because the Texas Court of
Criminal Appeals has adjudicated Flores' claims, his Motion to Stay
is now moot and will be denied .
Noting that Flores' claim s were
rejected in state court, respondent argues that the Petition must
be dism issed because the claims lack merit x 8
II .
Standard of Review
To the extent that the petitioner's claims were adjudicated on
the merits in state court, his claims are subject to review under
the
Antiterrorism
and
Effective
Death
Penalty
CA
AEDPA' , codified at 28 U. .
Q
S C. 5 2254 (
d).
M petition , Docket Entry No .
Act
of
1996
Under the AEDPA a
p . 1O .
l5jd . at
(
g
l6
Docket Entry No .
l Action Taken on Writ No . 85,223-02 , Docket Entry No . 12-3,
7
p.
l Respondent's Motion , Docket Entry No .
8
federal habeas corpus court may not grant relief unless the state
court's adjudication hresulted in a decision that was contrary to,
or involved an unreasonable application of , clearly established
federal
law ,
as
determined
United States E.q'
'
by
the
Supreme
28 U .S.
C. 5 2254 ( 1).
d)(
Court
of
the
' state court's
'
A
decision is deemed contrary to clearly estab lished federal 1aw
reaches a legal conclusion in direct conflict with a prior
decision
of the Supreme Court
or
reaches a
different
conclusion than the Supreme Court on materially indistingu ishable
facts.' Matamoros v . Stephens, 783 F.3d 212, 215 (
'
5th Cir. 2015)
(
citations omitted) see also Williams v. Tavlor, l20 S . Ct. 1495,
1519-20 (
2000).
To constitute an nunreasonable application of'
'
clearly established federal law , a state court's holding Mmust be
objectively unreasonable, not merely wrong; even clear error will
not suffice.'
'
Woods v. Donald, l35 S.
1372, 1376 (
2015)
(
quoting White v. Woodall, 134 S . Ct. 1697, 1702 (
2014)).
'To
'
satisfy this high bar , a habeas petitioner is required to 'show
that the state court's ru ling on the claim being presented in
federal court was so lacking in justification that there was an
error well understood and comprehended in existing 1aw beyond any
possibility for fairminded disagreement.'' Id. (
'
quoting Harrinqton
v . Richter, 131 S. Ct .
The
AEDPA
'imposes
786-87 (
2011))
a
ïhighly
evaluating state-court rulings,'
deferential
standard
for
E
which) 'demands that
state-court decisions be given the benefit of the doubt .'' Renico
'
v. Lett, 13O S . Ct. 1855, 1862 (
2010) (
citations omitted). This
standard is intentionally 'difficult to meet' because it was meant
'
'
to bar relitigation of claims already rejected in state proceedings
and to preserve federal habeas review as ua 'guard against extreme
malfunctions in the state criminal justice systems,' not a
substitute for ordinary error correction through appeal.' Richter ,
'
l3l S. Ct. at 786 (
quoting Jackson v . Virqinia, 99 S. Ct . 2781,
2796, n.5 (
1979) (
Stevens,
concurringl); see also White, 134
S . Ct . at 1702 .
A state court's factual determ inations are also entitled to
deference on federal habeas corpus review .
Findings of fact are
npresumed to be correct' unless the petitioner rebuts those find'
ings with 'clear and convincing evidence.' 28 U .S. 5 2254 (
'
'
C.
e)
Th is presumption of correctness extends not only to express factual
findings, but also to the state court 's implicit findings .
See
Garcia v . Quarterman, 454 F.3d 441, 444-45 (
5th Cir. 2006) (
citing
Summers v. Dretke,
861, 876
2005); Younq v .
Dretke, 356 F.3d 616, 629 (
5th Cir. 2004)). If a claim presents a
question of fact , a petitioner cannot obtain federal habeas relief
unless he shows that the state court 's denia l of relief 'was based
'
on an unreasonable determ ination
evidence presented
5 2254 ( 2)
d)(
the facts
light of the
the State court proceeding .'
'
28 U .S .C .
A federal habeas corpus court n
may not characterize
these state -court factual determ inations as unreasonab le 'merely
because (
it) would have reached a different conclusion in the first
instance.''
'
Brumfield v . Cain, 135 S. Ct. 2269, 2277 (
2015)
(
quoting Wood v . Allen, l30 S. Ct . 841, 849 (
2010)).
'Instead,
'
5 2254 ( ( requires that E federal courtq accord the state trial
d) 2)
a
court substantial deference .'
'
Id .
111 . Discussion
When Flores' parole was revoked in 2015 the govern ing statute
on street-time credit provided as follow s:
If the parole , mandatory supervision , or conditional
pardon of a person described by Section 508.149(
a) is
revoked, the person may be required to serve the
remaining portion of the sentence on which the person was
released . The remaining portion is computed w ithout
credit for the time from the date of the person 's release
to the date of revocation .
Tex . Gov't Code 5 508.
283(
b)
that
Flores
was
not
The state habeas corpus court found
eligible
street-time
credit
under
5 508.
283( of the Texas Government Code because when his parole
5)
was revoked he was serv ing a sentence for aggravated assault with
a deadly weapon , which is an offense listed in Texas Government
Code 5 508.
149( 7). 9 Noting that Flores was a person convicted
a)( 1
of an aggravated offense listed in ï 508.
149 (
a), the state habeas
corpus court concluded that prison officials properly applied
5 508.283 ( to deny Flores street-time credit following his parole
5)
revocation .z
o
lg
Findings and Conclusions, Docket Entry No . 12-4 , pp . 66-67 .
2OId
Flores does not demonstrate that the state court 's conclusion
was incorrect or contrary to clearly established Supreme Court
precedent. In that respect, as a person described by 5 5O8.149 (
a),
Flores cannot establish that he had a constitutionally protected
liberty interest
his street-time credit or that he was denied
street-time credit in violation of the right to due process .
See
Rhodes v. Thaler, 713 F. 264, 267 (
3d
5th Cir. 2013). Accordingly,
Flores fails to establish a valid claim for relief under 28 U .S .C .
5 2254 . Absent a valid claim for relief , the Respondent's Motion
will be granted and the Petition will be dismissed .
IV .
Certificate of Appealability
Rule 11 of the Rules Governing Section 2254 Cases now requires
a district court to issue or deny a certificate of appealability
when entering a final order that is adverse to the petitioner .
certificate of appealability w ill not issue unless the petitioner
makes na substantial show ing of the denial of a constitutional
right,' 28 U.S.
'
C. 5 2253 ( 2), which requires a petitioner
c)(
demonstrate uthat reasonable jurists would find the district
court's
assessment of the constitutional claims debatable
or
wrong .' Tennard v . Dretke, 124 S. Ct. 2562, 2565 (
'
2004) (
quoting
Slack v. McDaniel,
1595, 1604
(
2000)).
Under the
controlling standard this requires a petitioner to show uthat
reasonable jurists could debate whether (
or, for that matter, agree
-
8-
that) the petition should have been resolved in a different manner
or
that
the
issues
presented
were
'adequate
to
deserve
encouragement to proceed further .'' Miller-El, 123 S . Ct . at 1039 .
'
Where
denial
of
relief
based
procedural
grounds
the
petitioner must show not only that ujurists of reason would find it
debatable whether the petition states a valid claim of the denial
a constitutional right,' but also that they uwould find
'
debatable whether the district court was correct in its procedural
ruling .'
'
Slack ,
at 16 04 .
A district court may deny a certificate
appealability ,
sua sponte , without requiring further briefing or argument .
See
Alexander v . Johnson, 211 F.
3d 895, 898 (
5th Cir. 2000)
For
reasons set forth above, the court concludes that jurists of reason
would not debate whether the petitioner states a valid claim or
that the
Petition
should be resolved
a different manner .
Therefore, a certificate of appealability will not issue .
Conclusion and Order
Based on the foregoing , the court ORDERS as follows :
The Motion for Leave to Stay the Proceeding in
Abeyance filed by Joel Flores (
Docket Entry No . 9)
is DENIED as moot .
Respondent's Motion for Summary Judgment (
Docket
Entry No. 13) is GRANTED .
3.
The Petition for a Writ of Habeas Corpus By a
Person in state Custody filed by Joel Flores
(
Docket Entry No . 1) is DENIED, and this action
will be dismissed with prejudice.
A certificate of appealability is DENIED .
The Clerk shall provide a copy of this Memorandum Op inion and
Order to the parties .
SIGNED at Houston , Texas, on this 9th day of November , 2016.
#
'
SIM LAK E
UNITED STATES D ISTRICT JUDGE
-
1 0-
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