Henderson v. Barry
REPORT AND RECOMMENDATIONS to DISMISS in Part and DENY in Part 1 Petition for Writ of Habeas Corpus, filed by Braxton Tyrone Henderson. Signed by Judge Lee Yeakel. (mm5, )
IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS AUSTIN DIVISION BRAXTON TYRONE HENDERSON Petitioner, V. RICK THALER, Director, Texas Dept. of Criminal Justice-Correctional Institutions Division, Respondent. § § § § § § § § § §
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE To: The Honorable Lee Yeakel, United States District Judge The Magistrate Judge submits this Report and Recommendation to the District Court pursuant to 28 U.S.C. §636(b) and Rule 1(e) of Appendix C of the Local Court Rules of the United States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to United States Magistrates, as amended, effective December 1, 2002. Before the Court are Petitioner's Application for Habeas Corpus Relief under 28 U.S.C. § 2254 (Document 1); Petitioner's Amendment (Document 10); Respondent's Answer (Document 11); Petitioner's Response thereto (Document 14); and Petitioner's supplement to his response (Document 15). Petitioner, proceeding pro se, has paid the filing fee for his application. For the reasons set forth below, the undersigned finds that Petitioner's application for writ of habeas corpus should be dismissed in part as time-barred and denied in part.
STATEMENT OF THE CASE A. Petitioner's Criminal History According to Respondent, the Director has lawful and valid custody of Petitioner pursuant to a judgment and sentence of the 264th Judicial District Court of Bell County, Texas, in cause number FR55347. Petitioner was convicted of assault with bodily injury to a family or household member-subsequent offense. On February 10, 2004, the trial court sentenced him to 10 years of imprisonment. Petitioner does not challenge his holding conviction. Rather, he challenges the Board of Pardons and Paroles' decision to deny him release on parole and discretionary mandatory supervision.1 Petitioner appears to have received a "serve all" when denied parole on November 3, 2006. Pet. Amd. at Exh. B. In addition, Respondent asserts Petitioner has been reviewed for and denied release onto discretionary mandatory supervision on three occasions: August 15, 2007, July 30, 2008 and June 16, 2009. On November 6, 2008, Petitioner filed an application for state writ of habeas corpus challenging the failure to release him on parole and the first two denials of mandatory supervision. Ex parte Henderson, Appl. No. 60,241-03 at 8-34. The Texas Court of Criminal Appeals denied the application without written order on February 18, 2009. Id. at cover. Petitioner did not challenge the third denial of mandatory supervision , as he was not denied release until June 16, 2009, after his state application had already been denied. B. Grounds for Relief Petitioner raises the following grounds for relief: Petitioner uses of a form habeas corpus application that has recently been filed in six cases in the Austin Division by inmates confined in the Lockhart Work Facility. The application uses the terms "parole" and "mandatory supervision" interchangeably. 2
Parole Board procedures violate due process, because erroneous information may be utilized in the decision-making process; The Parole Board has failed to show Petitioner is a danger and is unjustly using his conviction in order to detain him; The denial notice is insufficient; and The Parole Board violated Petitioner's due process rights by denying him parole when he had pre-parole status and a presumptive parole date.
Exhaustion of State Court Remedies Respondent does not contest that Petitioner has exhausted his state court remedies regarding
the claims brought in this application. A review of the state court records submitted by Respondent shows that Petitioner has properly raised these claims in previous state court proceedings. Respondent does, however, move to dismiss some of Petitioner's claims as time-barred. DISCUSSION AND ANALYSIS A. Statute of Limitations The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") establishes a oneyear statute of limitations for state inmates seeking federal habeas corpus relief. See 28 U.S.C. § 2244(d). That section provides, in relevant part: (d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of-(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review; (B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action; (C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence. (2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection. To the extent Petitioner challenges the denial of parole on November 3, 2006, or the denial of mandatory supervision on August 15, 2007, his claims are time-barred.2 The dates on which the factual predicate of Petitioner's claims presented could have been discovered through the exercise of due diligence are the days on which Petitioner was denied parole or mandatory supervision. Therefore, Petitioner had until November 3, 2007, to challenge the denial of parole, and he had until August 15, 2008, to challenge the denial of mandatory supervision. Petitioner did not execute his federal application for habeas corpus relief until August 24, 2009, well after the limitations periods had already expired. Petitioner's state application did not operate to toll the limitations period, because it was filed on November 6, 2008, also after the limitations period had expired. Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000). The record does not reflect that any unconstitutional state action impeded Petitioner from filing for federal habeas corpus relief prior to the end of the limitations periods. Furthermore, Petitioner has not shown that he did not know the factual predicate of his claims earlier. Finally, the claims do not concern a constitutional right recognized by the Supreme Court within the last year and made retroactive to cases on collateral review.
Petitioner indicates in his response that he is challenging the Board's July 30, 2008 denial. However, that was not clear in his original petition. Therefore, out of an abundance of caution the Court will consider whether challenges to the 2006 denial of parole and the 2007 denial of mandatory supervision are time-barred. 4
AEDPA The AEDPA radically altered the standard of review by this Court in federal habeas corpus
proceedings filed by state prisoners pursuant to Title 28 U.S.C. § 2254. Under the AEDPA's standard of review, this Court cannot grant Petitioner federal habeas corpus relief in this cause in connection with any claim that was adjudicated on the merits in state court proceedings unless the adjudication of that claim either (1) 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; or (2) resulted in a decision that 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)(1)(2). The "contrary to" requirement "refers to the holdings, as opposed to the dicta, of ... [the Supreme Court's] decisions as of the time of the relevant state-court decision." Dowthitt v. Johnson, 230 F.3d 733, 740 (5th Cir. 2000) (quoting (Terry) Williams v. Taylor, 529 U.S. 362, 120 S. Ct. 1495, 1523 (2000)). The inquiry into whether the decision was based on an "unreasonable
determination of the facts" constrains a federal court in its habeas review due to the deference it must accord the state court. See id. Under the "contrary to" clause, a federal habeas court may grant the writ 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. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from ... [the Supreme Court's] decisions but unreasonably applies that principle to the facts of the prisoner's case. Id. at 740-41.
Section 2254(d)(2) speaks to factual determinations made by the state courts. See 28 U.S.C. § 2254(e)(1). While we presume such determinations to be correct, the petitioner can rebut this presumption by clear and convincing evidence. See id. Absent an unreasonable determination in light of the record, we will give deference to the state court's fact findings. See id. § 2254(d)(2). B. Parole
Petitioner makes various claims that his due process rights have been violated with respect to not being released on parole. However, the United States Constitution does not create a liberty interest in parole. Greenholtz v. Inmates of Nebraska Penal & Corr. Complex, 442 U.S. 1, 7 (1979). Likewise, Texas law makes parole discretionary and does not create a liberty interest in parole that is protected by the Due Process Clause. Orellana v. Kyle, 65 F.3d 29, 31-32 (5th Cir. 1995); see also Johnson v. Rodriguez, 110 F.3d 299, 308 (5th Cir. 1997). Because Texas inmates have no protected liberty interest in parole, they cannot have a liberty interest in parole consideration or other aspects of parole procedures. Johnson v. Rodriguez, 110 F.3d 299, 308 (5th Cir. 1997) (stating that Texas prisoners cannot mount a challenge against any state parole review procedure on procedural or substantive due process grounds). It is entirely up to each State whether it chooses to create a parole system and the amount of discretion with which it entrusts its parole decisionmakers. Parole is a privilege, not a right, even after an inmate accrues the minimum amount of timeserved credit necessary to be eligible for parole. See Greenholtz, 442 U.S. at 7 (convicted persons have no constitutional right to be conditionally released before the expiration of a valid sentence); 37 TEX. ADMIN. CODE § 145.3(1) ("Release to parole is a privilege, not an offender right, and the parole decision maker is vested with complete discretion to grant, or to deny parole release as defined by statutory law."). An inmate who has met the minimum requirement for time served under 6
the applicable parole eligibility statute is not automatically entitled to be released on parole; rather, he is only entitled to a review to determine whether or not he will be released on parole. See 37 TEX. AD M IN . CODE § 145.3(1) ("[T]he parole decision maker is vested with complete discretion to grant, or to deny parole release. . . .") (emphasis added); Allison v. Kyle, 66 F.3d 71, 74 (5th Cir. 1995) (because a prisoner has no liberty interest in obtaining parole in Texas, he cannot complain of the constitutionality of procedural devices attendant to parole decisions). Regardless of when and how often inmates seek parole review, they are never kept in prison beyond their maximum sentence date. Because Petitioner has no liberty interest in obtaining parole in Texas, he has no claim for violation of due process in the procedures attendant to his parole decisions. Orellana, 65 F.3d at 31. Petitioner's argument concerning a presumptive parole date is also groundless. Pre-parolee status does not transform a parole date into a protected liberty interest. Gonzalez v. Quarterman, No. 4:07-CV-478-A, 2008 WL 3413136, at *2 (N.D. Tex. Aug. 11, 2008). Having independently reviewed the entire state court record, this Court finds nothing unreasonable in the state court's application of clearly established federal law or in the state court's determination of facts in light of the evidence. C. Mandatory Supervision
" M a n d a to ry supervision" is "the release of an eligible inmate so that the inmate may serve th e remainder of the inmate's sentence not on parole but under the supervision of the pardons and p a r o l e s division." TEX. GOV'T. CODE § 508.001(5). Whereas an inmate's release on parole is wholly discretion ary, an inmate's release on mandatory supervision is required, subject to certain exceptions, w h e n the "actual calendar time the inmate has served plus any accrued good conduct time equals the
te rm to which the inmate was sentenced." Id. at § 508.147(a); Jackson v. Johnson, 475 F.3d 261, 2 6 3 , n. 1 (5th Cir. 2007). B o t h the Fifth Circuit and the Texas courts have held Texas's post-September 1, 1996 m a n d ato ry provision scheme (outlined above) does create a protected liberty interest. Teague v. Q u arte rm a n , 482 F.3d 769, 777 (5th Cir. 2007); Ex parte Geiken, 28 S.W.3d 553, 558 (Tex. Crim. A p p . 2000). Therefore, Petitioner is correct in noting he has a protected liberty interest, and is e n title d to due process protection with respect to the decisions to deny him mandatory supervision. H o w e v e r , this simply means certain procedural due process protections must be afforded Petitioner b y the Board before it decides whether to release him on mandatory supervision. Procedural due p ro c e s s requires, essentially, that Petitioner be given notice and a meaningful opportunity to be h e a r d . Geiken, 28 S.W.3d at 560. Additionally, if release is denied, "the inmate must be informed in what respects he falls short of qualifying for early release." Id. (citing Greenholtz v. Inmates of N e b r a s k a Penal and Correctional Complex, 442 U.S. 1, 16 (1979)). Therefore, the only issues before th is Court are (1) whether Petitioner was provided timely notice he was to be considered for m a n d a t o r y supervision release, (2) whether he was given a meaningful opportunity to be heard; in o t h e r words, a meaningful opportunity to tender information to the Board in support of his release, a n d (3) whether he was informed in what respects he fell short of qualifying for early release. The record reflects Petitioner was given notice of his second mandatory supervision review o n April 14, 2008, and the notice indicated the review was to occur within thirty days of August 1, 2 0 0 8 , his potential release date. Supp. SCR at 5. The notice also indicated Petitioner could submit e v id e n c e to the Board panel before June 17, 2008. Id. Therefore, Petitioner had adequate notice of t h e specific 30-day window in which his review would take place, as well as an opportunity to submit
e v i d e n c e to the Board panel in support of his release. The record also reflects the Board specifically s e t forth the specific factors justifying its determination not to release him on mandatory supervision, a n d Petitioner received notice of the Board's decision and rationale on July 31, 2008. Pet. Appl. at fi n a l page. Therefore, Petitioner received the process to which he was due under the law with regard t o his 2008 denial. T o the extent he complains the Board's reasoning or the guidelines it follows are too vague o r arbitrary, the Court of Criminal Appeals has considered this argument and rejected it. Geiken, 28 S .W .3 d at 557. In Geiken, the applicant argued the statutory criteria directing the Board to evaluate th e inmate's potential for rehabilitation and whether his release would endanger the public "are too v a g u e to provide any guidance to the Board in making its decision and...this Court should, because o f this vagueness, hold this portion of the statute unconstitutional." Id. The Court of Criminal A p p e a ls rejected the argument, explaining the factors in question represent "valid concerns in making t h e release decision," and "are not so vague as to provide the Board with no guidance in their d e c is io n ." Id. The Geiken court concluded, "The early release decision is necessarily subjective and c a n n o t be limited to rigidly defined factors. In creating a parole or other early release system, `the s ta te may be specific or general in defining the conditions for release and the factors that should be c o n s id e re d by the parole authority.'" Id. (citing Greenholtz, 442 U.S. at 8). Therefore, Petitioner's c o n s titu tio n a l challenge to the factors considered by the Board is without merit. As for the
sufficiency of the denial explanations, the Fifth Circuit has upheld similar explanations in the mandatory supervision context. See Boss v. Quarterman, 552 F.3d 425, 428-29 (5th Cir. 2008) (holding the Due Process Clause does not require further explanation than the "paragraphs cut verbatim from the Parole Board's Directives."). Although Petitioner did not receive the result he
d e s ire d , he was afforded all the process he was due under the United States Constitution. Having
independently reviewed the entire state court record, this Court finds nothing unreasonable in the state court's application of clearly established federal law or in the state court's determination of facts in light of the evidence. RECOMMENDATION It is recommended that Petitioner's application for writ of habeas corpus be dismissed in part and denied in part. Petitioner's application should be dismissed with prejudice as time-barred to the extent Petitioner challenges the denial of parole on November 3, 2006, and the denial of mandatory supervision on August 15, 2007. The remainder of Petitioner's application should be denied on the merits. CERTIFICATE OF APPEALABILITY An appeal may not be taken to the court of appeals from a final order in a habeas corpus proceeding "unless a circuit justice or judge issues a certificate of appealability." 28 U.S.C. § 2253(c) (1)(A). Pursuant to Rule 11 of the Federal Rules Governing Section 2254 Cases, effective December 1, 2009, the district court must issue or deny a certificate of appealability when it enters a final order adverse to the applicant. A certificate of appealability may issue only if a petitioner has made a substantial showing of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). The Supreme Court fully explained the requirement associated with a "substantial showing of the denial of a constitutional right" in Slack v. McDaniel, 529 U.S. 473, 484, 120 S. Ct. 1595 (2000). In cases where a district court rejected a petitioner's constitutional claims on the merits, "the petitioner must demonstrate that reasonable jurists would find the district court's assessment of the constitutional claims debatable 10
or wrong." Id. "When a district court denies a habeas petition on procedural grounds without reaching the petitioner's underlying constitutional claim, a COA should issue when the petitioner shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right and that jurists of reason would find it debatable whether the district court was correct in its procedural ruling." Id. In this case, reasonable jurists could not debate the dismissal or denial of the Petitioner's section 2254 petition on substantive or procedural grounds, nor find that the issues presented are adequate to deserve encouragement to proceed. Miller-El v. Cockrell, 537 U.S. 322, 327, 123 S. Ct. 1029 (2003) (citing Slack, 529 U.S. at 484). Accordingly, it is respectfully recommended that the Court shall not issue a certificate of appealability. OBJECTIONS The parties may file objections to this Report and Recommendation. A party filing objections must specifically identify those findings or recommendations to which objections are being made. The District Court need not consider frivolous, conclusive, or general objections. Battles v. United States Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987). A party's failure to file written objections to the proposed findings and recommendations contained in this Report within fourteen (14) days after the party is served with a copy of the Report shall bar that party from de novo review by the district court of the proposed findings and recommendations in the Report and, except upon grounds of plain error, shall bar the party from appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the district court. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150-153, 106 S. Ct. 466, 472-74 (1985); Douglass v. United Servs. Auto. Assoc., 79 F.3d 1415 (5th Cir. 1996)(en banc). 11
To the extent that a party has not been served by the Clerk with this Report and Recommendation electronically, pursuant to the CM/ECF procedures of this District, the Clerk is ORDERED to mail such party a copy of this Report and Recommendation by certified mail, return receipt requested. SIGNED this 16th day of March, 2010.
_____________________________________ ROBERT PITMAN UNITED STATES MAGISTRATE JUDGE
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