Alegria, Jr. v. Thaler

Filing 12

REPORT AND RECOMMENDATION: that Petitioner's 4 Application for Writ of Habeas Corpus be denied; it is respectfully recommended that the Court shall not issue a certificate of appealability. Signed by Judge Andrew W. Austin. (kkc, )

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

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A-12-CA-289-SS

REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
TO:

THE HONORABLE SAM SPARKS
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 4) and Respondent’s Answer (Document 9). Petitioner did not file a response
thereto. 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 220th Judicial District Court of Comanche County, Texas in cause

number CCCR 05-02748-A. On October 29, 2007, Petitioner pleaded guilty to intoxication assault
and was sentenced to ten years’ imprisonment and a $1,500.00 fine.
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. The
Board denied discretionary mandatory supervision to Petitioner on November 7, 2011. After being
denied release on mandatory supervision, Petitioner filed a state application for habeas corpus relief
on January 17, 2012. Ex parte Alegria, Appl. No. 77,174-01. The Texas Court of Criminal Appeals
denied the application without written order on March 7, 2012. Id. at cover.
B.

Grounds for Relief
Petitioner raises the following grounds for relief:
1.
2.

The Board is incapable of impartially judging his rehabilitation records in violation
of equal protection;

3.

His due process rights were violated; and

4.
C.

His denial of discretionary mandatory supervision was arbitrary and capricious;

The state courts failed to uphold state statutes.

Exhaustion of State Court Remedies
Respondent does not contest that Petitioner has exhausted his state court remedies regarding

the claims brought in this application.
DISCUSSION AND ANALYSIS
A.

The Antiterrorism and Effective Death Penalty Act of 1996
The Supreme Court recently had the opportunity to summarize the basic principles that have

grown out of the Court’s many cases interpreting the 1996 Antiterrorism and Effective Death Penalty

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Act. See Harrington v. Richter, – U.S. –, 131 S. Ct. 770, 783-85 (2011). The Court noted that the
starting point for any federal court in reviewing a state conviction is 28 U.S.C. § 2254, which states
in part:
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.

28 U.S.C. § 2254(d). The Court noted that “[b]y 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, 131 S. Ct. at 784.
One of the issues Harrington resolved was “whether § 2254(d) applies when a state court’s
order is unaccompanied by an opinion explaining the reasons relief has been denied.” Id. Following
all of the Courts of Appeals’ decisions on this question, Harrington concluded that the deference due
a state court decision under § 2554(d) “does not require that there be an opinion from the state court
explaining the state court’s reasoning.” Id. (citations omitted). The Court noted that it had
previously concluded that “a state court need not cite nor even be aware of our cases under
§ 2254(d).” Id. (citing Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam)). When there is no
explanation with a state court decision, the habeas petitioner’s burden is to show there was “no
reasonable basis for the state court to deny relief.” Id. And even when a state court fails to state

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which of the elements in a multi-part claim it found insufficient, deference is still due to that
decision, because “§ 2254(d) applies when a ‘claim,’ not a component of one, has been adjudicated.”
Id.
As Harrington noted, § 2254(d) permits the granting of federal habeas relief in only three
circumstances: (1) when the earlier state court’s decision “was contrary to” federal law then clearly
established in the holdings of the Supreme Court; (2) when the earlier decision “involved an
unreasonable application of” such law; or (3) when the decision “was based on an unreasonable
determination of the facts” in light of the record before the state court. Id. at 785 (citing 28 U.S.C.
§ 2254(d); Williams v. Taylor, 529 U.S. 362, 412, 120 S. Ct. 1495, 1523 (2000)). 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) (quotation and citation omitted).
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.
Id. at 740-41 (quotation and citation omitted). Under the “unreasonable application” clause of
§ 2254(d)(1), a federal 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 741 (quotation and citation omitted). The provisions of
§ 2254(d)(2), which allow the granting of federal habeas relief when the state court made an
“unreasonable determination of the facts,” are limited by the terms of the next section of the statute,
§ 2254(e). That section states that a federal court must presume state court fact determinations to

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be correct, though a petitioner can rebut that presumption by clear and convincing evidence. See 28
U.S.C. § 2254(e)(1). But absent such a showing, the federal court must give deference to the state
court’s fact findings. Id.
1.

Due Process

Petitioner 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 that 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 only means certain procedural protections must be afforded Petitioner by the Board
before it decides whether to release him on mandatory supervision. Procedural due 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

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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
August 10, 2011, and the notice indicated the review was to occur within thirty days of that date.
See Resp. Exhibit B. The notice also indicated Petitioner could submit evidence to the Board panel
before September 9, 2011. Id. Therefore, Petitioner had adequate notice of the specific 30-day
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 on November 7,
2011. See Resp. Exhibit C. Petitioner does not deny he received such notice. Therefore, Petitioner
received the process to which he was due under the law with regard to his 2011 denial of mandatory
supervision.
To the extent he complains about “arbitrary and capricious” denials , 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 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.

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2.

Equal Protection

Petitioner complains the Board’s minds were irrevocably closed due to the nature of his
crimes. To the extent Petitioner is attempting to raise an equal protection claim 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).
3.

State Courts

Petitioner appears to raise a separate ground for relief that the state courts failed to uphold
state statutes. To the extent Petitioner intends to raise this as a separate claim he is not entitled to
federal habeas corpus relief. The role of federal courts in reviewing habeas corpus petitions by
prisoners in state custody is exceedingly narrow. A person seeking federal habeas corpus review
must assert a violation of a federal constitutional right. Lowery v. Collins, 988 F.2d 1354, 1367 (5th
Cir. 1993). Federal habeas corpus relief will not issue to correct errors of state constitutional,
statutory, or procedural law, unless a federal issue is also present. Estelle v. McGuire, 502 U.S. 62,
67-68, 112 S .Ct. 475, 479-80 (1991); West v. Johnson, 92 F.3d 1385, 1404 (5th Cir. 1996). In the
course of reviewing state proceedings, a federal court does not sit as a super state appellate court.
Dillard v. Blackburn, 780 F.2d 509, 513 (5th Cir.1986).
4.

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.
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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
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.
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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
ORDERED to mail such party a copy of this Report and Recommendation by certified mail, return
receipt requested.
SIGNED this 4th day of September, 2012.

_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

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