Jackson v. Thaler

Filing 11

REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus filed by Patrick Kreg Jackson. It is recommended that Petitioners application for writ of habeas corpus be denied. Signed by Judge Andrew W. Austin. (jk, )

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

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A-11-CA-050-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 8), and Petitioner’s response thereto
(Document 9). 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 denied.
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 182nd Judicial District Court of Harris County, Texas in cause
number 945803. Petitioner was indicted by a grand jury on April 16, 2003, for intoxication

manslaughter, alleged to have been committed on or about March 13, 2003. Petitioner pleaded nolo
contendere, and following the recommendation of the State, the trial court sentenced Petitioner to
thirteen years incarceration on July 23, 2003.
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 According to Respondent, the Board denied discretionary mandatory supervision to
Petitioner on August 10, 2009. After being denied release on mandatory supervision, Petitioner filed
a state application for habeas corpus relief on August 24, 2009. Ex parte Jackson, Appl. No. 76,61803 at 2-53. The Texas Court of Criminal Appeals denied the application without written order on
December 22, 2010. Id. at cover. The Board also denied discretionary mandatory supervision to
Petitioner on August 2, 2010. After being denied release on mandatory supervision, Petitioner filed
a state application for habeas corpus relief on September 13, 2010. Ex parte Jackson, Appl.
No. 76,618-04 at 2-37. The Texas Court of Criminal Appeals denied the application without written
order on December 22, 2010. Id. at cover.
B.

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

The Board of Pardons and Paroles has violated his right to due process by using false
statements, including information contained in protest letters, when considering his
release;

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In his application for habeas corpus relief and his memorandum in support attached to his
application Petitioner uses the terms “parole” and “mandatory supervision” interchangeably. Similar
habeas applications have recently been filed in the Austin Division by inmates confined in the
Lockhart Work Facility.
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2.

3.

The Board has failed to provide Petitioner with a detailed accounting of why his
release was denied, as required by state statute;

4.

The Board has violated an implicit contract as well as Petitioner’s right to due
process by transferring him from the TDCJ Institutional Division to the Parole
Division, which presumes parole release, without eventually releasing him; and

5.

C.

The Board only considers the crime of conviction when determining whether or not
to deny parole release and not Petitioner’s efforts at rehabilitation or evidence
concerning his future dangerousness;

The Parole Board is treating Petitioner differently than other inmates because he was
convicted of a politically charged crime, intoxication manslaughter.

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.
DISCUSSION AND ANALYSIS
A.

The Antiterrorism and Effective Death Penalty Act of 1996
The statutory authority of federal courts to issue habeas corpus relief for persons in state

custody is defined by 28 U.S.C. § 2254, as amended by the Antiterrorism and Effective Death
Penalty Act of 1996 (AEDPA). The text of § 2254(d) states:
“An application for a writ of habeas corpus on behalf of a person in custody pursuant
to the judgment of a State court shall not be granted with respect to any claim that
was adjudicated on the merits in State court proceedings unless the adjudication of
the claim“(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.”
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By its terms § 2254(d) bars relitigation of any claim “adjudicated on the merits” in state court,
subject only to the exceptions in §§ 2254(d)(1) and (d)(2). Harrington v. Richter, 131 S. Ct. 770, 784
(2011). Determining whether a state court’s decision resulted from an unreasonable legal or factual
conclusion does not require that there be an opinion from the state court explaining the state court’s
reasoning. Id. (citations omitted). A state court need not cite or even be aware of Supreme Court
cases under § 2254(d). Id. (citing Early v. Packer, 537 U.S. 3, 8, 123 S. Ct. 362 (2002) (per curiam).
Where a state court’s decision is unaccompanied by an explanation, the habeas petitioner’s burden
must be met by showing there was no reasonable basis for the state court to deny relief. Id. This is
so whether or not the state court reveals which of the elements in a multi-part claim it found
insufficient, as the Supreme Court explained, § 2254(d) applies when a “claim,” not a component
of one, has been adjudicated. Id.
Federal habeas relief may not be granted for claims subject to § 2254(d) unless it is shown
that the earlier state court’s decision “was contrary to” federal law then clearly established in the
holdings of the Supreme Court, § 2254(d)(1); Williams v. Taylor, 529 U.S. 362, 412, 120 S. Ct. 1495
(2000); or that it “involved an unreasonable application of” such law, § 2254(d)(1); or that it “was
based on an unreasonable determination of the facts” in light of the record before the state court,
§ 2254(d)(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

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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).
1.

Parole

Petitioner makes various claims that his due process rights have been violated with respect
to the denial of 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

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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
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) (“[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). As for the sufficiency
of the denial explanations, the Fifth Circuit has upheld similar explanations in the mandatory
supervision context where there is actually a protected interest at stake. See Boss v. Quarterman,
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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.”).
To the extent Petitioner claims his right to due process has been denied because the Board
is under political pressure to deny release to inmates convicted of intoxication manslaughter he is
not entitled to relief. Mere conclusory statements on the part of a petitioner do not raise a
constitutional issue in a habeas case. Ross v. Estelle, 694 F.2d 1008, 1011 (5th Cir. 1983).
2.

Mandatory Supervision

Petitioner also makes various claims that his due process rights have been violated with
respect to the denial of mandatory supervision. “Mandatory supervision” is “the release of an
eligible inmate so that the inmate may serve the remainder of the inmate’s sentence not on parole but
under the supervision of the pardons and paroles division.” T EX . G OV ’T. C ODE § 508.001(5).
Whereas an inmate’s release on parole is wholly discretionary, an inmate’s release on mandatory
supervision is required, subject to certain exceptions, when the “actual calendar time the inmate has
served plus any accrued good conduct time equals the term to which the inmate was sentenced.” Id.
at § 508.147(a); Jackson v. Johnson, 475 F.3d 261, 263, n. 1 (5th Cir. 2007).
Both the Fifth Circuit and the Texas courts have held Texas’s post-September 1, 1996
mandatory provision scheme (outlined above) does create a protected liberty interest. Teague v.
Quarterman, 482 F.3d 769, 777 (5th Cir. 2007); Ex parte Geiken, 28 S.W.3d 553, 558 (Tex. Crim.
App. 2000). Therefore, Petitioner is correct in noting he has a protected liberty interest, and is
entitled to due process protection with respect to the decisions to deny him mandatory supervision.
However, this simply means certain procedural due process protections must be afforded Petitioner
by the Board before it decides whether to release him on mandatory supervision. Procedural due

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process requires, essentially, that Petitioner be given notice and a meaningful opportunity to be
heard. 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
Nebraska Penal and Correctional Complex, 442 U.S. 1, 16 (1979)). Therefore, the only issues before
this Court are (1) whether Petitioner was provided timely notice he was to be considered for
mandatory supervision release, (2) whether he was given a meaningful opportunity to be heard; in
other words, a meaningful opportunity to tender information to the Board in support of his release,
and (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 mandatory supervision review on
May 11, 2009, and the notice indicated the review was to occur within thirty days of September 1,
2009. See Resp. Appendix A. The notice also indicated Petitioner could submit evidence to the
Board panel before July 18, 2009. Id. Therefore, Petitioner had adequate notice of the specific 30day window in which his review would take place, as well as an opportunity to submit evidence to
the Board panel in support of his release. The record also reflects the Board specifically set forth the
factors justifying its determination not to release him on mandatory supervision, and Petitioner
received notice of the Board’s decision and rationale on or about August 12, 2009. See Pet.
Attachments. Therefore, Petitioner received the process to which he was due under the law with
regard to his 2009 denial of mandatory supervision.
The record reflects Petitioner was also given notice of his mandatory supervision review on
April 13, 2010, and the notice indicated the review was to occur within thirty days of August 1, 2010.
Id. The notice also indicated Petitioner could submit evidence to the Board panel before July 12,
2010. Id. Therefore, Petitioner had adequate notice of the specific 30-day window in which his

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review would take place, as well as an opportunity to submit evidence to the Board panel in support
of his release. The record also reflects the Board specifically set forth the factors justifying its
determination not to release him on mandatory supervision, and Petitioner received notice of the
Board’s decision and rationale on or about August 5, 2010. Id. Therefore, Petitioner received the
process to which he was due under the law with regard to his 2010 denial of mandatory supervision.
To the extent he complains the Board’s reasoning or the guidelines it follows are too vague
or arbitrary, the Court of Criminal Appeals has considered this argument and rejected it. Geiken, 28
S.W.3d at 557. In Geiken, the applicant argued the statutory criteria directing the Board to evaluate
the inmate’s potential for rehabilitation and whether his release would endanger the public “are too
vague to provide any guidance to the Board in making its decision and . . . this Court should, because
of this vagueness, hold this portion of the statute unconstitutional.” Id. The Court of Criminal
Appeals rejected the argument, explaining the factors in question represent “valid concerns in making
the release decision,” and “are not so vague as to provide the Board with no guidance in their
decision.” Id. The Geiken court concluded, “The early release decision is necessarily subjective and
cannot be limited to rigidly defined factors. In creating a parole or other early release system, ‘the
state may be specific or general in defining the conditions for release and the factors that should be
considered by the parole authority.’” Id. (citing Greenholtz, 442 U.S. at 8). Therefore, Petitioner’s
constitutional 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, and the Board is not required to produce evidence in support of its
decision. 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

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Board’s Directives.”). Although Petitioner did not receive the result he desired, he was afforded all
the process he was due under the United States Constitution.

3.

Standard

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 denied.
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

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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).
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

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ORDERED to mail such party a copy of this Report and Recommendation by certified mail, return
receipt requested.
SIGNED this 17th day of May, 2011.

_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

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