Allen v. Stephens

Filing 11

REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus filed by Jeffery Allen. (It is recommended that Petitioner's 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
JEFFERY ALLEN
V.
WILLIAM STEPHENS, Director, Texas
Dept. of Criminal Justice-Correctional
Institutions Division

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A-13-CA-870-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 1) and Respondent’s Answer (Document 10). 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 16th Judicial District Court of Denton County, Texas in cause
number F-2007-2739-A. Petitioner was charged with two counts of engaging in organized criminal

activity. As part of a plea bargain agreement, he pleaded guilty to the lesser included offense of
arson in exchange for a seven-year sentence. On June 11, 2008, the trial court sentenced Petitioner
to seven years’ imprisonment pursuant to the terms of the plea agreement. Petitioner did not appeal
his conviction or sentence.
Petitioner now 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 on November 14, 2012. After being denied release on
mandatory supervision, Petitioner filed a state application for habeas corpus relief. Ex parte Allen,
Appl. No. 80,067-01 at 1-38. The Texas Court of Criminal Appeals denied the application without
written order on the findings of the trial court without a hearing on August 28, 2013. Id. at cover.
B.

Grounds for Relief
Respondent construed Petitioner’s claims as follows:
1.

The Board of Pardons and Paroles violated his right to due process by unjustifiably
denying his release to mandatory supervision;

2.

The terms of his plea bargain called for him to be released to parole after he served
about fourteen months of his seven-year sentence;

3.

The Board arbitrarily and capriciously denied him release to mandatory supervision;
and

4.

The Board violated his constitutional rights by denying him release to mandatory
supervision.

Petitioner did not object to the description of his claims. Because Petitioner’s memorandum in
support of his application for habeas corpus relief is not entirely clear as to the specific claims he
makes, the Court construes Petitioner’s application liberally.

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C.

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
In 2011, the Supreme Court summarized the basic principles that have grown out of the

Court’s many cases interpreting the 1996 Antiterrorism and Effective Death Penalty Act, noting that
the starting point in reviewing a state conviction is 28 U.S.C. § 2254. See Harrington v. Richter,
– U.S. –, 131 S. Ct. 770, 783-85 (2011). In part, § 2254 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.

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

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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 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 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 (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.

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

Parole

To the extent Petitioner makes any claims that his due process rights have been violated with
respect to the denial of parole his claims fail. 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.
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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). 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).
2.

Mandatory Supervision

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.” TEX. GOV’T. CODE § 508.001(5). Whereas an
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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 in, 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
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)).
Petitioner does not allege (1) he was not provided timely notice that he was to be considered
for mandatory supervision release, (2) he was not given a meaningful opportunity to tender
information to the Board in support of his release, or (3) he was not informed in what respects he fell
short of qualifying for early release. This is all the process to which he was due under the law with
regard to his 2012 denial of mandatory supervision. Instead, Petitioner complains the Board’s
reasoning or the guidelines it follows are too vague or arbitrary. However, the Court of Criminal
Appeals has considered this argument and rejected it. Geiken, 28 S.W.3d at 557. In Geiken, the

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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, “[t]he 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
Board’s Directives.”). Although Petitioner did not receive the result he desired, he was afforded the
process he was due under the United States Constitution.
The failure to release Petitioner prior to the expiration of his sentence also does not implicate
a double jeopardy violation. The Double Jeopardy Clause of the Fifth Amendment, made applicable
to the States through the Fourteenth Amendment, provides that no person shall “be subject for the
same offense to be twice put in jeopardy of life or limb.” U.S. CONST. AMEND. V. This clause
protects against: (1) a second prosecution for the same offense after acquittal; (2) a second

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prosecution for the same offense after conviction; and (3) multiple punishments for the same offense.
As a matter of state law, good time and work time credits apply only to eligibility for parole or
mandatory supervision and do not actually reduce, extend, or otherwise have any effect on the length
of sentence imposed on an inmate. See Ex parte Hallmark, 883 S.W.2d 672, 674 (Tex. Crim.
App.1994); TEX. GOV’T CODE ANN. § 498.003(a) (Vernon 2004). Therefore, Petitioner has not been
subjected to multiple punishments for the same offense.
The failure to release Petitioner also does not amount to cruel and unusual punishment. The
indicia of confinement constituting cruel and unusual punishment include wanton and unnecessary
infliction of pain, conditions grossly disproportionate to the severity of the crime warranting
imprisonment, and the deprivation of the minimal civilized measures of life’s necessities. Wilson
v. Lynaugh, 878 F.2d 846, 848 (5th Cir.), cert. denied, 493 U.S. 969 (1989). The Supreme Court has
held that to the extent that prison conditions are restrictive and even harsh, they are part of the
penalty that criminal offenders pay for their offenses against society. Rhodes v. Chapman, 452 U.S.
337, 346-7 (1981). The denial of Petitioner’s mandatory supervision is not an Eighth Amendment
violation.
Finally, to the extent Petitioner contends the denial of mandatory supervision violates the
Thirteenth Amendment, the Constitution does not forbid a prison inmate being required to work
without pay or other compensation. Ali v. Johnson, 259 F.3d 317, 318 & n. 2 (5th Cir. 2001);
Moody v. Baker, 857 F.2d 256, 257 (5th Cir. 1998).
3.

Plea Agreement

Petitioner appears to argue the Board violated the terms of his plea agreement. According
to Petitioner, counsel told him he would be released on his first eligible parole date, approximately

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fourteen months into his seven-year sentence. At the time Petitioner filed his federal application for
habeas corpus relief, he complained he was on his third mandatory supervision release date.1
Petitioner raised this claim in his state application. The trial court found the only three terms
agreed to in the plea bargain agreement were that Petitioner shall serve seven years in TDCJ,
Petitioner shall receive credit for 15 days, and Petitioner’s conviction was a felony. Ex parte Allen,
Appl. No. 80,067-01 at 64, 67. A copy of the plea bargain agreement confirming these terms is
included in the state court records. Id. at 52. Petitioner has provided no evidence to the contrary.
4.

Conclusion

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.

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The Court does not construe Petitioner’s claim as a claim of ineffective assistance of
counsel, because Petitioner did not raise that claim in his state application and his claim would be
time-barred.
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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 (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 (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).

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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 (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 24th day of March, 2014.

_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

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