Saiz v. Thaler

Filing 16

REPORT AND RECOMMENDATIONS: RECOMMENDS Respondent's 15 Motion to Dismiss be granted and 1 Petitioner's application for writ of habeas corpus be dismissed as moot. Signed by Judge Andrew W. Austin. (td)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
PHILLIP SAIZ
V.
RICK THALER, Director, Texas Dept. of
Criminal Justice-Correctional
Institutions Division

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A-10-CA-878-LY

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), Respondent’s Answer (Document 14), and Respondent’s Motion to Dismiss
as Moot (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 as moot.
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 144th Judicial District Court of Bexar County, Texas in cause

number 2001-CR-1006. Petitioner was indicted by a grand jury on February 21, 2001, for assault,
enhanced by one prior assault conviction, alleged to have been committed on or about September 23,
2000. Petitioner pleaded nolo contendere and entered into a plea agreement for four years of
community supervision. On June 19, 2003, the State moved to adjudicate guilt and revoke
community supervision. On November 21, 2003, after Petitioner entered pleas of true to the motion
to revoke, the trial court revoked his community supervision, adjudicated him guilty, and sentenced
him to ten years incarceration.
Petitioner does not challenge his holding conviction. Rather, he challenges the Board of
Pardons and Paroles’ decision to deny him release on discretionary mandatory supervision.
According to Respondent, the Board denied discretionary mandatory supervision to Petitioner in
2009 and 2010. After being denied release on mandatory supervision in 2009, Petitioner filed a state
application for habeas corpus relief on August 18, 2009. Ex parte Saiz, Appl. No. 72,903-01 at 1-24.
The Texas Court of Criminal Appeals denied the application without written order on the findings
of the trial court without a hearing on November 4, 2009. Id. at cover. After being denied release
on mandatory supervision in 2010, Petitioner filed a second state application for habeas corpus relief
on September 13, 2010. Ex parte Saiz, Appl. No. 72,903-02 at 1-24. The Texas Court of Criminal
Appeals dismissed the application as successive on October 20, 2010. Id. at cover.
B.

Grounds for Relief
Petitioner raises the following grounds for relief:
1.

The Board of Pardons and Paroles violated a contract entered into when he was
moved to a pre-release facility by failing to release him to mandatory supervision;

2.

The Board violated his due process liberty interests in his good time by failing to
release him to mandatory supervision; and
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3.

C.

The Parole Board failed to find that Petitioner was a danger to the community and
instead only denied release because of the nature of his crime.

Moot
On May 16, 2011, Respondent filed an answer in the case, addressing the merits of

Petitioner’s claim. On May 25, 2011, Respondent notified the Court that Petitioner was released on
mandatory supervision on April 29, 2011, and failed to notify the Court of a change of address.
Respondent moves to dismiss this case as moot.
DISCUSSION AND ANALYSIS
Once federal jurisdiction has attached in the district court, it is not defeated by the release of
the petitioner prior to the completion of the proceedings. Carafas v. LaVallee, 391 U.S. 234, 238,
88 S. Ct. 1556 (1968). Even though jurisdiction is not defeated when a prisoner is released on
parole, a released prisoner’s claims for habeas corpus relief may be rendered moot by his release.
Tolley v. Johnson, 228 F.3d 410 (5th Cir. 2000). A petition is not moot if the released prisoner can
show that the challenged conviction will cause him to suffer some future collateral consequences.
Lane v. Williams, 455 U.S. 624, 632, 102 S. Ct. 1322 (1982); Carafas, 391 U.S. 234. A petitioner
challenging only the sentence, and not the underlying conviction, must affirmatively allege and
demonstrate collateral consequences. Spencer v. Kemna, 523 U.S. 1, 7-8, 118 S. Ct. 978 (1998); see
also Lane, 455 U.S. at 624; Beachem v. Schriro, 141 F.3d 1292, 1294 (8th Cir.) (citing Spencer, 523
U.S. at 12-14), cert. denied, 525 U.S. 938 (1998).
Petitioner does not challenge the validity of his underlying conviction or sentence, only the
execution of his sentence. Under Spencer, collateral consequences are not presumed. Petitioner has
made no allegation or demonstration of collateral consequences. Spencer, 523 U.S. at 1; see also

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Bailey v. Southerland, 821 F.2d 277 (5th Cir. 1987) (holding habeas petition challenging prison
disciplinary proceeding and punishment moot after petitioner’s release). Accordingly, dismissal of
this petition as moot is appropriate as a result of Petitioner’s release.
RECOMMENDATION
It is recommended that Respondent’s Motion to Dismiss [#15] be granted and Petitioner’s
application for writ of habeas corpus be dismissed as moot.
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
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

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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 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 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). 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.
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SIGNED this 14th day of June, 2011.

_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

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