Hogan v. Livingston

Filing 12

REPORT AND RECOMMENDATIONS. It is recommended that Petitioners application for writ of habeas corpus be denied. re 1 Petition for Writ of Habeas Corpus filed by Robert Keith Hogan, III.. Signed by Judge Mark Lane. (dm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
ROBERT KEITH HOGAN III
V.
LORIE DAVIS

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A-16-CA-421-RP

REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
TO:

THE HONORABLE ROBERT PITMAN
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 Magistrate Judges.
Before the Court are Petitioner’s Application for Habeas Corpus Relief under 28 U.S.C.
§ 2254 (Document 1); Petitioner’s Memorandum in Support (Document 3); Respondent’s Answer
(Document 4); and Petitioner’s response (Document 5). Petitioner, proceeding pro se, has been
granted leave to proceed in forma pauperis. 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 22nd Judicial District Court of Hays County, Texas, in cause

number CR-13-0848. In that case, Petitioner pleaded guilty to tampering with a government
document and was sentenced to five years’ imprisonment on March 19, 2014.
Respondent further asserts, the Director also has lawful and valid custody of Petitioner
pursuant to a judgment and sentence of the 198th Judicial District Court of Kerr County, Texas. In
cause number B14-32, Petitioner pleaded guilty to forgery, and on December 5, 2014, he was
sentenced to three years’ imprisonment.
Petitioner does not challenge either holding conviction. Rather, Petitioner challenges the
decision of the Board of Pardons and Paroles (the “Board”) to withdraw its recommendation that
Petitioner be released on parole “due to a new felony detainer.” He also challenges the Board’s
decision to deny him parole and the Board’s decision to deny his release on mandatory supervision.
Petitioner challenged the denial of parole and mandatory supervision in two state applications
for habeas corpus relief. The Texas Court of Criminal Appeals denied the applications without
written order on January 27, 2016. Ex parte Hogan, Appl. No. 84,363-01 and -02.
B.

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

He was denied a hearing when the Board withdrew its parole grant;

2.

He was improperly denied parole on his next review date;

3.

He was improperly denied discretionary mandatory supervision release; and

4.

He is being illegally restrained.

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D.

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 Supreme Court has summarized the basic principles that have grown out of the Court’s

many cases interpreting the 1996 Antiterrorism and Effective Death Penalty Act. See Harrington
v. Richter, 562 U.S. 86, 97–100 (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, 562 U.S. at 98.
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 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
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 100 (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). But absent such a showing, the federal court must give deference to the state
court’s fact findings. Id.
B.

Parole Withdrawal
According to Petitioner, he was granted parole on July 10, 2014. He claims the vote to grant

parole was later withdrawn on August 24, 2014, “due to felony detainer.” Petitioner complains no
hearing was held prior to the withdrawal. Petitioner contends the detainer was for an offense he
committed prior to parole and was not a proper basis to withdraw the favorable vote for parole.
The minutes of the Board reflect Petitioner received a “FI-5” vote on June 23, 2014, with
regard to his conviction out of Hays County. An FI-5 vote is a vote to transfer an offender to an InPrison Therapeutic Community Program (IPTC), with a release to aftercare. See TEXAS BOARD OF
PARDONS

AND

PAROLES, http://www.tdcj.state.tx.us/bpp/what_is_parole/vote-options.htm (last

visited Aug.17, 2016). The FI-5 vote was subsequently withdrawn when the Board discovered

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Petitioner had a pending felony detainer out of Kerr County. The Board’s minutes indicate Petitioner
was not eligible for the IPTC because of the felony detainer.1
Petitioner erroneously characterizes the withdrawal of the favorable parole vote as the
revocation of parole and argues he is entitled to a hearing. The withdrawal of an FI-5 vote is not the
same as the revocation of parole. An FI-5 vote merely provides an offender with a tentative release
to parole conditioned upon his successful completion of his rehabilitation program. Petitioner had
not been released to parole when the favorable vote was withdrawn. As such, Petitioner is not
entitled to the process required when parole is revoked. See Morrissey v. Brewer, 408 U.S. 471
(1972) (discussing the rights that must be afforded a parolee in conjunction with parole revocation
proceedings).
C.

Parole Denial
Petitioner asserts he was reviewed for parole in 2015, a year after the favorable vote for

parole was withdrawn. Petitioner complains he was denied parole in 2015 for many reasons that did
not previously apply or were not previously relevant in his 2014 review.
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

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Petitioner was subsequently bench warranted to Kerr County and was sentenced to three
years’ imprisonment.
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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). In Johnson, the Fifth Circuit concluded Johnson’s
allegations that the Texas Board of Pardons and Paroles considers unreliable or even false
information in making parole determinations, without more, simply do not assert a federal
constitutional violation. Id. 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). 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.
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D.

Mandatory Supervision
Petitioner also contends he was improperly denied release to mandatory supervision.

Petitioner complains the same reasons to deny him parole were used to deny him 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 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)).

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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 denial of mandatory supervision.
To the extent Petitioner complains the Board’s reasoning or the guidelines it follows are too
vague or arbitrary, his claim also fails. 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, “[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

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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.

E.

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. Accordingly, Petitioner’s claims do not warrant
federal habeas relief.
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 (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
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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).
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

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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).
SIGNED on August 17, 2016.

_____________________________________
MARK LANE
UNITED STATES MAGISTRATE JUDGE

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