Victorian v. Director
Filing
24
MEMORANDUM OPINION AND ORDER granting 16 MOTION for Summary Judgment with Brief in Support, denying 22 MOTION for Evidentiary Hearing. This action is dismissed with prejudice. A Certificate of Appealability is denied. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
United States District Court
Southern District of Texas
ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
DARRYL WADE VICTORIAN,
TDCJ #627801,
§
§
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§
§
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§
§
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§
§
§
Petitioner,
v.
LORIE DAVIS, Director,
Texas Department of Criminal
Justice - Correctional
Institutions Division,
Respondent.
February 03, 2020
David J. Bradley, Clerk
CIVIL ACTION NO. H-19-1509
MEMORANDUM OPINION AND ORDER
While incarcerated in the Texas Department of Criminal Justice
("TDCJ"), Darryl Wade Victorian (TDCJ #627801) filed a Petition
Under 28 U.S.C. § 2254 for a Writ of Habeas Corpus by a Person in
State Custody
("Petition") (Docket Entry No. 1),
calculation of his
parole.
sentence following the
regarding the
revocation of his
Now pending is Respondent's Motion for Summary Judgment
With Brief in Support ("Respondent's MSJ") (Docket Entry No. 16).
Victorian has replied with Petitioner's Objection to Summary
Judgment (Docket Entry No. 21) and Petitioner's Written Motion For
A
Live
Evidentiary
Hearing
(Docket
Entry
No.
22).
After
considering all of the pleadings and the applicable law,
the
Respondent's MSJ will be granted and this action will be dismissed
for the reasons explained below.
I.
In 1992,
Background
Victorian was charged in Harris County Case No.
631861 with the felony offense of burglary of a vehicle. 1
Those
charges were enhanced for purposes of punishment with allegations
that Victorian had at least two prior felony convictions for
burglary of a building. 2
Victorian waived a formal indictment and
entered a guilty plea to the charges against him. 3
The 262nd
District Court for Harris County, Texas, found Victorian guilty as
charged and sentenced him to 25 years' imprisonment under the terms
of the plea agreement. 4
Victorian does not challenge the validity of his underlying
convictions here.
Instead, he challenges the manner in which the
trial court reviewed a state habeas corpus application that he
filed regarding the revocation of his parole
calculation of his sentence. 5
and subsequent
Victorian's parole revocation and
state habeas corpus proceedings are summarized below based on
See Felony Information and Waiver of Indictment, Docket Entry
No. 17-10, p. 126.
For purposes of identification, all page
numbers refer to the pagination imprinted by the court's electronic
filing system, CM/ECF.
1
See id.; Waiver of Constitutional Rights, Agreement to
Stipulate, and Judicial Confession, Docket Entry No. 17-10, p. 123.
3
See Judgment on Plea of Guilty or Nolo Contendere Before
Court- Waiver of Jury Trial, Docket Entry No. 17-10, p. 129.
4
5
Petition, Docket Entry No. 1, p. 5.
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records provided by the respondent. 6
A.
Victorian's Parole Revocation Proceedings
After receiving his 25-year sentence in 1992, Victorian was
released on parole for the first time on September 5, 2000. 7 In
2002, a pre-revocation warrant issued for Victorian's arrest after
he failed to report under the terms of his supervised release and
was declared an absconder. 8
2010,
after
Victorian was
The warrant was executed on April 19,
found
in custody
of
the Colorado
Department of Corrections as the result of a new conviction. 9
Victorian waived a parole revocation hearing and was extradited
back to Texas, where his parole was revoked on February 11, 2011. 10
When Victorian returned to TDCJ following the revocation of
his parole in 2011, he received "jail credit" on his sentence for
There are two affidavits in the record that set forth the
relevant facts regarding Victorian's parole revocation proceedings
and the calculation of his sentence.
Angela Nation of the TDCJ
Parole Division provided an affidavit during Victorian's state
habeas corpus proceedings in 2018. See Affidavit of Angela Nation
("Nation Affidavit"), Docket Entry No. 17-10, pp. 85-91. Charley
Valdez of the TDCJ Classification and Records Department has
provided an affidavit with more recent information in support of
Respondent's MSJ. See Respondent's MSJ, Exhibit A, Affidavit of
Charley Valdez ("Valdez Affidavit"), Docket Entry No. 16-2, pp. 16.
6
7
Valdez Affidavit, Docket Entry No. 16-2, pp.
8
Nation Affidavit, Docket Entry No. 17-10, p. 89.
9
See id.
10
See id.
-3-
3-4.
time spent in custody after the pre-revocation warrant was executed
on April 19, 2010, but he was denied credit for the rest of the
time he spent out of TDCJ custody, forfeiting all of his previously
earned good time as well as "9 years, 7 months, and 14 days of
calendar street time" pursuant to Tex. Gov't Code§ 508.283{c).11
On October 9, 2012, Victorian was released by TDCJ on parole
a second time.12
While on parole, Victorian was convicted of a new
offense in state court for violating a protective order and
sentenced to three years' imprisonment on January 27,
2015.13
Victorian's parole was revoked shortly thereafter on April 7,
2015.14
As a result of this revocation, Victorian forfeited all
previously earned good-time credit as well as "2 years, 5 months,
and 28 days of calendar street time" pursuant to§ 508.283(c) . 15
In 2017,
Victorian filed two administrative Time Dispute
Resolution Forms to challenge the way in which his sentence was
Valdez Affidavit, Docket Entry No. 16-2, p. 4. "Street-time
credit refers to calendar time a person receives towards his
sentence for time spent on parole or mandatory supervision." Ex
parte Spann, 132 S.W.3d 390, 392 n. 2 (Tex. Crim. App. 2004).
Subject to certain exceptions for violent offenders, a Texas
prisoner is entitled to street-time credit after a parole
revocation only "if the 'remaining portion' of their sentence is
less than the amount of time they have spent out on parole." Id. at
392 (discussing§ 508.283(c)).
11
12
see Valdez Affidavit, Docket Entry No. 16-2, p. 4.
14
See id. at 5.
15
See id.
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calculated after the revocation of his parole. 16
Prison officials
rejected each one after determining that his sentence and time
credits were calculated properly. 17
B.
Victorian's State Habeas Proceedings
On February 12, 2018, Victorian filed an Application for a
Writ of Habeas Corpus Seeking Relief from Final Felony Conviction
Under [Texas] Code of Criminal Procedure, Article 11. 07 ( "State
Habeas
Application")
with
the
trial
court,
challenging
the
revocation of his parole in 2011, and the subsequent calculation of
his time credits by TDCJ. 18
Victorian argued that he was entitled
to relief for the following reasons:
1.
Parole officials failed to calculate his time
credits correctly following the revocation of his
parole in 2011.
2.
He was denied a timely revocation
violation of due process when his
revoked in 2011.
3.
TDCJ officials failed to adequately resolve the
claims that he raised during the administrative
time-credit dispute process (referencing his Time
Dispute Resolution Forms).
4.
His sentence was improperly extended by an improper
application of the law that governed the
calculation of time credits following a parole
hearing in
parole was
16
17
See id. at 5.
18
21.
See id. at 5-6.
See State Habeas Application, Docket Entry No. 17-10, pp. 5-5-
revocation. 19
After considering a
"credible"
affidavit from a
TDCJ
Parole
Division official regarding Victoria's revocation proceedings and
the calculation of his time credits, the state habeas corpus court
entered findings of fact and concluded that he was not entitled to
relief. 20
In particular, the state habeas corpus court found that
Victorian waived a parole revocation hearing in 2011. 21
The state
habeas corpus court also found that he received all of the time
credits that he was due and that his sentence was not unlawfully
extended, as Victorian alleged. 22
The Texas Court of Criminal
Appeals agreed and denied Victorian's State Habeas Application
without a written order based on the trial court's findings. 23
C.
Victorian's Federal Habeas Petition
In his pending federal habeas corpus Petition, Victorian
contends that he is entitled to relief for the following reasons:
1.
19
In considering his State Habeas Application, the
trial court did not address his claim that his
parole was revoked without due process in 2011.
See id. at 10-17.
see State's Proposed Findings of Fact, Conclusions of Law,
and Order, Docket Entry No. 17-10, p. 114 (finding the affidavit
from Angela Nation "credible" and that the facts asserted therein
were "true") .
20
21
22
p. 1.
See id. at 115.
See id. at 116-17.
23
Action Taken on Writ No. 88,380-03, Docket Entry No. 17-10,
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2.
He was denied due process when the trial court
construed his claim to apply to the calculation of
his sentence, rather than his parole revocation
proceeding.
3.
He was denied due process when the trial court
failed to consider his objections to the State's
proposed findings of fact.
4.
In considering his State Habeas Application, the
trial court overlooked one of his claims about
"jail time" credit.24
The respondent moves for summary judgment, arguing that Victorian
fails to state a viable claim for relief as a matter of law.25
II.
Standard of Review
The federal habeas corpus standard of review requires a
petitioner to first present his claims in state court and to
exhaust all state court remedies through proper adjudication.
28 U.S.C.
§
2254 (b).
See
To satisfy the exhaustion requirement the
petitioner must present his claims to the highest state court in a
procedurally proper manner so that the state court is given a fair
opportunity to consider and pass upon challenges to a conviction
before those issues come to federal court for habeas corpus review.
24
Petition, Docket Entry No. 1, pp. 6-7.
Respondent's MSJ, Docket Entry No. 7, pp. 5-6.
The
respondent notes that any challenge to the calculation of
Victorian's sentence is barred by the one-year statute of
limitations found in 28 u.s.c. § 2244 (d).
See id. at 6, n.3.
Because the Petition is without merit for other reasons discussed
further below, the court does not address this argument, which is
asserted in a footnote, but reserves the right to do so, if
necessary, at a future time.
25
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See, �' O'Sullivan v. Boerckel, 119 S. Ct. 1728, 1732 (1999)
(explaining that comity dictates that state courts should have the
first opportunity to review a claim and provide any necessary
relief).
Where
a
federal
habeas
corpus
petitioner's
claims
were
adjudicated on the merits in state court, his petition is subject
to review under the Antiterrorism and Effective Death Penalty Act
of 1996 ( "AEDPA"), codified at 28 U.S.C.
2254(d).
§
Under the
AEDPA a federal habeas corpus court may not grant relief unless the
state court's
adjudication
"resulted in a
decision that was
contrary to, or involved an unreasonable application of, clearly
established Federal law, as determined by the Supreme Court of the
United States[.]"
28 u.s.c.
§
2254(d) (1).
If a claim presents a
question of fact, a petitioner cannot obtain federal habeas relief
unless he shows that the state court's denial of relief "was based
on an unreasonable determination of the facts in light of the
evidence presented in the State court proceeding."
2254(d) (2).
Otherwise,
findings of fact are
28 U.S.C. §
"presumed to be
correct" unless the petitioner rebuts those findings with "clear
and convincing evidence."
28 U.S.C.
III.
§
2254(e) (1).
Discussion
Victorian's primary contention in all four of his proposed
claims is that he was denied due process on state collateral review
because the trial court misconstrued or failed to address his
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claims
properly.26
The
respondent
correctly
notes
that
this
allegation does not articulate a viable claim for relief on federal
habeas review.27
held
that
In that regard, the Fifth Circuit has repeatedly
"infirmities"
or
errors
that
occur
during
state
collateral review proceedings "do not constitute grounds for relief
in federal court."
Rudd v. Johnson, 256 F.3d 317, 319 (5th Cir.
2001) · (quoting Trevino v. Johnson, 168 F.3d 173, 180 (5th Cir.
1999)) (citations omitted).
Instead, a habeas corpus petitioner
must demonstrate that a constitutional violation occurred during
the underlying proceeding that resulted in his confinement before
a federal court may issue the writ. See,�' Morris v. Cain, 186
F.3d 581, 585 n.6 (5th Cir. 1999) (citations omitted); see also
Nichols v. Scott, 69 F.3d 1255, 1275 (5th Cir. 1995) (explaining
that "[a]n attack on a state habeas proceeding does not entitle the
petitioner to habeas relief in respect to his conviction, as it is
an attack on a proceeding collateral to the detention and not the
detention itself") (citation and internal quotation marks omitted).
The claims asserted in Victorian's Petition expressly take
issue with the trial court's characterization of his claims or the
failure to adequately address his allegations on state habeas
26
See Respondent's MSJ, Docket Entry No. 16, p. 6.
27
See id. at 6-7.
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corpus
review.28
To
the
extent
that
Victorian
challenges
infirmities or errors that allegedly occurred on state collateral
review, he fails to state a claim upon which federal habeas relief
may be granted.
See Rudd,
256 F.3d at 319.
Therefore,
the
respondent is entitled to summary judgment on this issue.
In an abundance of caution, 29 the court has reviewed the State
Habeas Application filed by Victorian along with the findings and
conclusions entered by the state habeas corpus court and finds no
error that rises to the level of a constitutional violation or
warrants federal habeas corpus relief under the deferential AEDPA
standard.
Victorian does not rebut any of the state court's fact
findings about his parole revocation proceedings or the calculation
of his sentence.
Absent clear and convincing evidence calling any
of the state court's factual findings into question, those fact
findings and credibility determinations are presumed correct on
federal review.
See 28 U.S.C. § 2254(e) (1); Valdez v. Cockrell,
274 F.3d 941, 947 (5th Cir. 2001); see also Coleman v. Quarterman,
456 F.3d 537, 541 (5th Cir. 2006) (citing Guidry v. Dretke, 397
28
See Petition, Docket Entry No. 1, pp. 6-7.
Because Victorian represents himself in this proceeding, the
court has construed all of his submissions under a less stringent
standard than those drafted by lawyers. See Haines v. Kerner, 92
S. Ct. 594, 596 (1972) (per curiam); see also Erickson v. Pardus,
127 S. Ct. 2197, 2200 (2007) ("A document filed pro se is 'to be
liberally construed [.] '") (quoting Estelle v. Gamble, 97 S. Ct.
285, 292 (1976)).
29
-10-
F.3d 306, 326 (5th Cir. 2005)).30
Likewise, Victorian cites no authority showing that his
sentence
was
calculated
incorrectly
in
violation
Constitution following one of his parole revocations.
of
the
To the
extent that the state habeas corpus court found that Victorian's
sentence was calculated correctly under state law, this conclusion
was adopted by the Texas Court of Criminal Appeals when it denied
his State Habeas Application.31
A federal habeas corpus court is
required to defer to a state court's interpretation of its own law.
See Arnold v. Cockrell, 306 F.3d 277, 279 (5th Cir. 2002) ("We will
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 review that
state's
interpretation
of
its
own
law")
(quoting
Seaton
v.
Procunier, 750 F.2d 366, 368 (5th Cir. 1985)).
Even if there was an error in the calculation of his sentence,
and Victorian does not demonstrate that one occurred, the Supreme
Court has repeatedly held that "federal habeas corpus relief does
not lie for errors of state law."
Estelle v. McGuire, 112 S. Ct.
475, 480 (1991); Lewis v. Jeffers, 110 S. Ct. 3092, 3102 (1990);
Although Victorian asks for an evidentiary hearing on his
claims, he does not show that one is available under the governing
statute. See 28 U.S.C. § 2254(e)(2). Accordingly, Petitioner's
Written Motion For A Live Evidentiary Hearing (Docket Entry No. 22)
will be denied.
30
p. 1.
Action Taken on Writ No. 88,380-03, Docket Entry No. 17-10,
31
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Pulley v. Harris, 104 S. Ct. 871, 874-75
(1984).
For this
additional reason, Victorian is not entitled to relief and his
Petition will be dismissed.
IV.
Certificate of Appealability
Rule 11 of the Rules Governing Section 2254 Cases requires a
district court to issue or deny a certificate of appealability when
entering a final order that is adverse to the petitioner.
A
certificate of appealability will not issue unless the petitioner
makes "a substantial showing of the denial of a constitutional
right," 28 U.S.C.
demonstrate
§
2253 (c) (2), which requires a petitioner to
"that 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, 120 s. 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
petition states a valid claim of the denial of a constitutional
right," but also that they "would find it debatable whether the
district court was correct in its procedural ruling."
Slack, 120
S. Ct. at 1604.
The court concludes that reasonable jurists would not debate
whether any ruling in this case was correct or whether the
petitioner
states
a
valid
claim
for
relief.
certificate of appealability will not issue.
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Therefore,
a
V.
Conclusion and Order
Accordingly, the court ORDERS as follows:
1.
The Respondent's Motion for Summary
(Docket Entry No. 16) is GRANTED.
Judgment
2.
Petitioner's Written Motion For A Live Evidentiary
Hearing (Docket Entry No. 22) is DENIED.
3.
The Petition Under 28 U.S.C. § 2254 for a Writ of
Habeas Corpus by a Person in State Custody filed by
Darryl Wade Victorian (Docket Entry No. 1) is
DENIED and this case will be DISMISSED with
prejudice.
4.
A certificate of appealability is DENIED.
The Clerk shall provide a copy of this Memorandum Opinion and
Order to the petitioner.
SIGNED at Houston, Texas, on this 3rd day of February, 2020.
SENIOR UNITED STATES DISTRICT JUDGE
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