Crosby v. Crain et al

Filing 20

REPORT AND RECOMMENDATIONS re 1 Complaint, filed by Marlon Jermaine Crosby, 19 Motion for Summary Judgment filed by Marlon Jermaine Crosby, 15 Motion for Summary Judgment filed by Christina Melton Crain, Bryan Collier, Stuart Jenkins, Brad Livi ngston; recommending grating defendants' motion for summary judgment, denying plaintiff's cross-motion for summary judgment, and dismissal of plaintiff's motion for class certification (contained in complaint). Signed by Judge Robert Pitman. (mc2, )

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
MARLON JERMAINE CROSBY #652425
V.
BRYAN COLLIER, CHRISTINA
MELTON CRAIN, STUART JENKINS and
BRAD LIVINGSTON,

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A-10-CA-862 LY

REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
TO:

THE HONORABLE LEE YEAKEL
UNITED STATES DISTRICT JUDGE
The Magistrate Court submits this Report and Recommendation to the District Court

pursuant to 28 U.S.C. § 636(b) and Rule 1(f) 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 Judges, as amended, effective December 1, 2002.
Before the Court are Plaintiff’s complaint brought pursuant to 42 U.S.C. § 1983 (Clerk’s
Dkt. # 1, 17); Plaintiff’s Motion for Class Certification (Contained within Clerk’s Dkt. #1);
Defendants’ Motion for Summary Judgment (Clerk’s Dkt. #15); and Plaintiff’s Cross-Motion for
Summary Judgment and Response to Defendants’ Motion for Summary Judgment (Clerk’s Dkt.
#19). Plaintiff, proceeding pro se, has paid the full filing fee for this lawsuit. After reviewing the
parties’ pleadings, relevant case law, as well as the entire case file, the undersigned issues the
following Report and Recommendation to the District Court.

I. BACKGROUND
Plaintiff Marlon Jermaine Crosby (“Crosby”) committed the offense of Capital Murder on
August 15, 1992. (Def. Mot. for Summ. Jt. Ex. A). He was found guilty of Capital Murder with the
use of deadly weapon and was sentenced to life imprisonment on October 7, 1993. (Id.).
On November 12, 2010, the Court received Crosby’s complaint filed pursuant to 42 U.S.C.
§ 1983, naming as defendants: (1) Bryan Collier, in his official capacity as Director of the Texas
Board of Criminal Justice; (2) Christina Melton Crain, in her official capacity as Chair of the Texas
Board of Criminal Justice; (3) Stuart Jenkins, in his official capacity as Director of the Parole
Division the Texas Board of Criminal Justice; and (4) Brad Livingston, in his official capacity as
Executive Director of the Texas Board of Criminal Justice. Crosby alleges he is a “class of one” for
the purposes of equal protection. He contends: (1) the failure of Defendants to release him on parole
fifteen years after he began serving his sentence violates Texas law and his constitutional rights; (2)
Defendants did not provide notice of consideration for release on parole or mandatory supervision
in violation of due process; (3) he is not correctly receiving bonus or blood donation time credits;
and (4) application of statutes and procedures relating to parole eligibility enacted after 1965 violate
the Double Jeopardy and Ex Post Facto clauses.
Defendants move for summary judgment. Defendants contend Crosby has failed to establish
a violation of his constitutional rights.
II. STANDARD OF REVIEW
A court will, on a motion for summary judgment, render judgment if the evidence shows that
there is no genuine issue as to any material fact and that the moving party is entitled to a judgment
as a matter of law. Eason v. Thaler, 73 F.3d 1322, 1325 (5th Cir. 1996); Int’l Shortstop, Inc. v.
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Rally Inc., 939 F.2d 1257, 1263 (5th Cir. 1991), cert. denied, 502 U.S. 1059, 112 S. Ct. 936 (1992).
When a motion for summary judgment is made and supported, an adverse party may not rest upon
mere allegations or denials but must set forth specific facts showing there is a genuine issue for trial.
Ray v. Tandem Computers, Inc., 63 F.3d 429, 433 (5th Cir. 1995); FED . R. CIV . P. 56.1
Both movants and non-movants bear burdens of proof in the summary judgment process.
Celotex Corp. v. Catrett, 477 U.S. 317, 106 S. Ct. 2548 (1986). The movant with the burden of
proof at trial must establish every essential element of its claim or affirmative defense. Id. at 322,
106 S. Ct. at 2552. In so doing, the moving party without the burden of proof need only point to the
absence of evidence on an essential element of the non-movant’s claims or affirmative defenses. Id.
at 323-24, 106 S. Ct. at 2554. At that point, the burden shifts to the non-moving party to “produce
evidence in support of its claims or affirmative defenses . . . designating specific facts showing that
there is a genuine issue for trial.” Id. at 324, 106 S. Ct. at 2553. The non-moving party must
produce “specific facts” showing a genuine issue for trial, not mere general allegations. Tubacex v.
M/V Risan, 45 F.3d 951, 954 (5th Cir. 1995).
In deciding whether to grant summary judgment, the Court should view the evidence in the
light most favorable to the party opposing summary judgment and indulge all reasonable inferences
in favor of that party. The Fifth Circuit has concluded “[t]he standard of review is not merely
whether there is a sufficient factual dispute to permit the case to go forward, but whether a rational

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Effective December 1, 2010, Rule 56 was amended. Although there is a slight language
change and a change in the designation of subsections, the legal standard remains the same. See FED .
R. CIV . P. 56(a) (eff. Dec.1, 2010) (“The court shall grant summary judgment if the movant shows
that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a
matter of law.”).
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trier of fact could find for the non-moving party based upon the evidence before the court.” James
v. Sadler, 909 F.2d 834, 837 (5th Cir. 1990) (citing Matsushita, 475 U.S. at 586, 106 S. Ct. 1356)).
To the extent facts are undisputed, a Court may resolve the case as a matter of law. Blackwell v.
Barton, 34 F.3d 298, 301 (5th Cir. 1994).
III. ANALYSIS
Crosby’s claims are founded on his interpretation of a section in the Texas Penal Code.
Specifically, he cites the following provision:
(a) A person adjudged guilty of an offense under this code shall be punished in
accordance with this chapter and the Code of Criminal Procedure, 1965.
(b) Penal laws enacted after the effective date of this code shall be classified for
punishment purposes in accordance with this chapter.
TEX . PENAL CODE ANN . § 12.01 (1991), effective January 1, 1974. Subpart a was amended,
effective September 1, 1994, to remove “1965.” Acts 1993, 73rd Leg., ch. 900, § 1.01.
It is undisputed that consideration of Crosby’s eligibility for parole has been under portions
of the Texas Code of Criminal Procedure enacted after 1965. In pertinent part, those provisions
state:
(a) A parole panel is authorized to release on parole any person confined in any penal
or correctional institution who is eligible for parole under this section. . . .
(b)(2) If a prisoner is serving a life sentence for a capital felony, the prisoner is not
eligible for release on parole until the actual calendar time the prisoner has served,
without consideration of good conduct time, equals 35 calendar years.
TEX . CODE . CRIM . PROC. ANN . art. 42.18 § 8(a)-(b) (1991), effective September 1, 1993, repealed
by Acts 1997, 75th Leg., ch. 165, § 12.22.

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Crosby maintains the reference to the 1965 version of the Code of Criminal Procedure in the
Penal Code at the time he committed his offense mandates application of the parole provisions
contained therein to him. Specifically, he cites the following provision:
The Board is hereby authorized to release on parole, with the approval of the
Governor, any person confined in any penal or correctional institution of this State,
except persons under sentence of death, who has served one-fourth of the maximum
sentence imposed, provided that in any case he may be paroled after serving fifteen
years. Time served shall be a total calendar time served and all credits allowed under
the laws governing the operation of the Department of Corrections, and executive
clemency. All paroles shall issue upon order of the Board, duly adopted and
approved by the Governor.
TEX . CODE CRIM . PROC. ANN . art. 42.12 § 15. Crosby contends this provision requires the parole
board to release him because he has served the requisite fifteen years. He maintains their failure to
do so: (1) violates due process because he was not provided notice he would be subject to any other
parole laws; (2) violates equal protection because he is not being treated similarly to persons
convicted previously; and (3) violates his protections against double jeopardy and ex post facto
application of the laws.
A.

Due Process
Crosby argues he was denied due process because he was not provided notice of the law

under which he would be considered for parole eligibility. However, the United States Constitution
does not create a liberty interest in parole. Greenholtz v. Inmates of Neb. Penal & Corr. Complex,
442 U.S. 1, 7, 99 S. Ct. 2100, 2104 (1979). Nor does Texas law create a liberty interest that is
protected by the Due Process Clause in parole because granting parole is discretionary.

See

Orellana v. Kyle, 65 F.3d 29, 31-32 (5th Cir. 1995) (Texas parole statutes do not confer liberty
interest). Because Texas inmates have no protected liberty interest in parole, they cannot have a

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liberty interest in parole consideration or other aspects of parole procedures. Johnson v. Rodriguez,
110 F.3d 299, 308 (5th Cir. 1997) (Texas prisoners cannot mount challenge against any state parole
review procedure on procedural or substantive due process grounds); Allison v. Kyle, 66 F.3d 71, 74
(5th Cir. 1995) (because Texas prisoner has no liberty interest in obtaining parole, he cannot
complain of constitutionality of procedural devices attendant to parole decisions).
Parole is a privilege, not a right, even after an inmate accrues the minimum amount of
time-served credit necessary to be eligible for parole. See 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”). See also
Greenholtz, 442 U.S. at 7, 99 S. Ct. at 2104 (convicted persons have no constitutional right to be
conditionally released before expiration of valid sentence). Thus, an inmate who has met the
minimum requirement for time served under 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 . ADMIN . CODE § 145.3(1) (parole decision
maker vested with complete discretion to grant or deny parole release). Because Crosby has no
liberty interest in obtaining parole in Texas, he cannot establish any claim for violation of due
process in the procedures attendant to parole decisions. Accordingly, he has failed to establish he
is entitled to relief on the basis of a violation of the Due Process Clause.
B.

Equal Protection
Crosby also argues he is not being treated the same for parole purposes as inmates who were

convicted of offenses committed in 1965. The basis of an equal protection claim is the requirement
that all persons similarly situated should be treated alike. City of Cleburne v. Cleburne Living Ctr.,
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Inc., 473 U.S. 432, 439, 105 S. Ct. 3249, 3254 (1989); Plyler v. Doe, 457 U.S. 202, 216, 102 S. Ct.
2282, 2394 (1982); Piotrowski v. City of Houston, 237 F.3d 567, 578 n.15 (5th Cir. 2001). To
establish an equal protection claim, a plaintiff must demonstrate that: (1) the state created two or
more classifications of similarly situated prisoners that were treated differently; and (2) the
classification had no rational relation to any legitimate governmental objective. See Village of
Willowbrook v. Olech, 528 U.S. 562, 564, 120 S. Ct. 1073, 1075 (2000) (plaintiff alleging equal
protection claim must show he has been intentionally treated differently from others similarly
situated and there is no rational basis for difference in treatment).
Crosby’s argument rests on a novel view of equal protection. That is, he maintains all
prisoners, regardless of the date each committed his criminal offense, are “similarly situated.” Crosby
provides no legal authority for this proposition. Moreover, it is an undeniable fact that legislatures
regularly alter the consequences of the commission of criminal offenses, indeed alter whether an act
is considered criminal or not, over time. Accordingly, the undersigned declines to find Crosby has
established an equal protection violation on this basis. C.f. F.C.C. v. Beach Commc’ns, Inc., 508
U.S. 307, 313, 113 S. Ct. 2096, 2101 (1993) (“equal protection is not a license for courts to judge
the wisdom, fairness, or logic of legislative choices”).
Crosby also suggests he is not receiving “bonus” or “blood donation” time credits. He has
not, however, cited any provision of Texas law which would entitle him to receive such credits.2 Nor
has Crosby identified any other similarly situated inmate who is receiving such credits. See
Armstead v. Scott, 250 F.3d 740 (5th Cir. 2001) (unpublished) (rejecting equal-protection allegations
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The undersigned notes the Supreme Court did recognize Nebraska law at one time permitted
parole authorities to consider “blood time” earned by prisoners for donating blood. See Wolf. v.
McDonnell, 418 U.S. 539, 546 n.6, 94 S. Ct. 2963, 2970 n.6 (1974).
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as conclusory); Brinkmann v. Johnston, 793 F.2d 111, 113 (5th Cir. 1986) (plaintiff in section 1983
action must state specific facts, not merely conclusory allegations, to support claim). Accordingly,
he has failed to establish any claims implicating the Equal Protection Clause.
C.

Ex Post Facto Clause
Crosby also challenges the failure of Defendants to release him on parole under the Ex Post

Facto Clause. As set forth above, he maintains he should be subject to the provisions of the 1965
version of the Code of Criminal Procedure, rather than the version in effect at the time he committed
his offense.
Article I, Section 10 of the United States Constitution provides, “no State . . . shall pass any
. . . ex post facto law.” U.S. CONST art. I, § 10. The Ex Post Facto Clause “protects liberty by
preventing governments from enacting statutes with ‘manifestly unjust and oppressive’ retroactive
effects.” Stogner v. California, 539 U.S. 607, 611, 123 S. Ct. 2446, 2449 (2003) (quoting Calder
v. Bull, 3 Dall. 386, 291 (1798)). More simply, the Ex Post Facto Clause is designed “to bar
enactments which, by retroactive operation, increase the punishment for a crime after its
commission.” Garner v. Jones, 529 U.S. 244, 249, 120 S. Ct. 1362, 1367 (2000). See also Collins
v. Youngblood, 497 U.S. 37, 43 110 S. Ct. 2715, 2719 (1990) (under Ex Post Facto Clause,
“[l]egislatures may not retroactively alter the definition of crimes or increase the punishment for
criminal acts”). Retroactive changes to laws governing parole of prisoners may, in some cases,
violate the Ex Post Facto Clause. Garner, 529 U.S. at 250, 120 S. Ct. at 1367.
The Supreme Court has made clear that “[c]ritical to relief under the Ex Post Facto Clause
is not an individual’s right to less punishment, but the lack of fair notice and governmental restraint
when the legislature increases punishment beyond what was prescribed when the crime was
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consummated.” Weaver v. Graham, 450 U.S. 24, 30, 101 S. Ct. 960, 965 (1981). Crosby contends
the reference in the Texas Penal Code to the 1965 version compels application of prior law to his
offense. Crosby does not, however, provide any case law or other support for his reading of the
statute. See McElyea v. Quarterman, 2007 WL 196529, at *2 n.1 (N.D. Tex. Jan. 22, 2007)
(rejecting similar argument as legally unsupported). Because there is no evidence that changes in
state law regarding parole eligibility have been retroactively applied to Crosby, he has failed to
demonstrate a viable constitutional claim for a federal ex post facto violation against Defendants.
The summary judgment evidence clearly shows Crosby’s parole eligibility date is being calculated
in accordance with the parole statute in effect at the time his offense was committed.
D.

Double Jeopardy
Crosby finally suggests the application of parole eligibility provisions enacted after 1965 to

him is a violation of the Double Jeopardy Clause. The Double Jeopardy Clause protects against a
second prosecution for the same offense after acquittal, a second prosecution for the same offense
after conviction, and multiple punishments for the same offense. United States v. Ursery, 518 U.S.
267, 273, 116 S. Ct. 2135, 2139-40 (1996). As noted above, parole in Texas is a privilege, not a
right. Because Crosby has no right to release on parole, he wholly fails to explain how parole
eligibility provisions act as an additional punishment. See Crow v. Quarterman, 2008 WL 3539738,
at *9 (S.D. Tex. Aug. 13, 2008) (absent allegations showing actual sentence increased improperly
or punishment imposed twice for same offense, double jeopardy claim is without merit). See also
Averhart v. Tutsie, 618 F.2d 479, 483 (7th Cir. 1980) (protections found in Double Jeopardy Clause
not triggered by denial of parole because “[r]ather than constituting another punishment for the same
offense, the denial of parole merely perpetuates the status quo: the prisoner remains incarcerated
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under a validly imposed sentence”); Gross v. Quarterman, 2007 WL 4411755, at *12 (S.D. Tex.
Dec. 17, 2007) (denial of parole not additional punishment for original offense). Accordingly,
Defendants’ motion for summary judgment should be granted.
IV. RECOMMENDATION
The undersigned RECOMMENDS that the District Court GRANT Defendants’ Motion for
Summary Judgment (Clerk’s Dkt. #15), DENY Plaintiff’s Cross-Motion for Summary Judgment
(Clerk’s Dkt. #19), and DISMISS Plaintiff’s Motion for Class Certification (Contained with Clerk’s
Dkt. #1).
V. OBJECTIONS3
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. See
Battle 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, 150-53, 106 S. Ct. 466,

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Counsel for Defendants has notified the Court she will be on vacation from June 24, 2011
through July 18, 2011. The Court should allow additional time for objections.
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472-74 (1985); Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en
banc).
To the extent that a party has not been served by the Clerk with this Report &
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 21st day of June, 2011.

_____________________________________
ROBERT PITMAN
UNITED STATES MAGISTRATE JUDGE

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