Padilla v. Davis-Director TDCJ-CID

Filing 12

ORDER DENYING 1 Petition for Writ of Habeas Corpus filed by Guadalupe Padilla and DENYING the issuance of a COA. Signed by Judge Sam Sparks. (klw)

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IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

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Petitioner,

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GUADALUPE PADILLA,

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LT/UIJ1?T
:EX4S

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V.

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A-16-CA-975-SS

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LORIE DAVIS, Director,
Texas Dept. of Criminal JusticeCorrectional Institutions Division,
Respondent.

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I!

1!

Before the Court are Petitioner Guadalupe Padilla' s Application for Habeas Corpus Relief

under 28 U.S.C.

§

2254 (Document 1); Petitioner's Brief in Support (Document 2); Respondent's

Answer (Document 9); and Petitioner's Response (Document 11). 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 custody of Petitioner pursuant to ajudgment and

sentence of the 167th Judicial District Court of Travis County, Texas in cause number 952802.

Petitioner was convicted of aggravated sexual assault of a child and indecency with a child. On
February 1, 2002, Petitioner was sentenced to 37 years' confinement in TDCJ for the sexual assault

offense and 15 years' confinement for the indecency with a child offense.

Petitioner does not challenge his holding convictions. Rather, he challenges the June 25,
2015 decision of the Texas Board of Pardons and Paroles to deny him parole. Petitioner challenged

'I

the denial of parole in a state application for habeas corpus relief. The Texas Court of Criminal

Appeals denied the application without written order. Ex parte Padilla, Appl. No. 61,391-09 at
cover.
B.

Petitioner's Grounds for Relief
Petitioner raises the following grounds for relief:
The Board did not follow Texas parole procedures when considering him for parole
by: (1) considering his post-conviction litigation activity; (2) trying to coerce him
into confessing to incriminating evidence from his trial; (3) including an
incriminating narrative in his parole interview, which prejudiced his parole interview;
(4) misinterpreting his risk assessment instrument score; and (5) not giving due
consideration to his accumulation of good conduct time.
2.

3.

C.

The Texas parole procedures do not give inmates a proper avenue to pursue
grievances concerning parole procedures; and
The Board violated the Texas Constitution in its application of parole review
procedures used to guide parole release determinations.

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,

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 "[bjy 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 ofthe Courts ofAppeals' 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.

3

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.
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.

U.S.C.

§

See

28

2254(e)( 1). But absent such a showing, the federal court must give deference to the state

court's fact findings. Id.

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Texas Constitution

B.

Insofar as Petitioner argues his rights under the Texas Constitution were violated, those

claims are without arguable merit. When a federal district court reviews a state prisoner's habeas
petition pursuant to 28 U.S.C. § 2254 it must decide whether the petitioner is "in custody in violation

of the Constitution or laws or treaties of the United States." Federal habeas corpus relief will not
issue to correct errors of state constitutional, statutory, or procedural law, unless a federal issue is
also presented. See Estelle v. McGuire, 502 U.S. 62,67-68(1991) (holding complaints regarding the

admission of evidence under California law did not present grounds for federal habeas relief absent
a showing that admission of the evidence in question violated due process); Lewis

v.

Jeffers, 497

U.S. 764, 780 (1990)(recognizing federal habeas relief will not issue for errors of state law); Pulley
v.

Harris, 465 U.S. 37, 41(1984) (holding a federal court may not issue the writ on the basis of a

perceived error of state law). In the course of reviewing state criminal convictions in federal habeas
corpus proceedings, a federal court does not sit as a super-state appellate court. Estelle v. McGuire,
502 U.S. at 67-68; Lewis

v.

Jeffers, 497 U.S. at 780; Pulley v. Harris, 465 U.S. at 41. Petitioner's

complaints that his rights under the Texas Constitution were violated during his parole review
process do not furnish a basis for federal habeas corpus relief
C.

United States Constitution
Petitioner challenges several state procedures used during his parole review. 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

5

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. Id.
at 308) (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.
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.
ADIvII1N.

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 Plaintiff 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 also alleges the parole panel attempted to coerce him into confessing to highly
incriminating evidence and testimony from the trial in violation of his Fifth Amendment right against

self-incrimination. A voluntary parole interview under the circumstances described by Petitioner
does not does not violate the privilege against self-incrimination. See Ohio Adult Parole Authority
v.

Woodard, 523 U.S. 272, 286-88 (1998).

Petitioner also complains the parole panel unlawfully considered his litigation activity during
his parole interview. Petitioner explains he informed the parole officer he was pursuing litigation
in both state and federal courts with respect to post-conviction DNA testing. He contends the parole

officer considered his litigation activity when she attempted to coerce him into confessing. To the

extent Petitioner may be attempting to raise a separate claim of retaliation, his claim fails. To state
a valid claim for retaliation, a prisoner must allege (1) a specific constitutional right, (2) the

defendant's intent to retaliate against the prisoner for his or her exercise of that right, (3) a retaliatory
adverse act, and (4) causation. Jones v. Greninger, 188 F.3d 322,324-25 (5th Cir. 1999). Petitioner
has not met this standard. See Woods v. Smith, 60 F.3d 1161, 1166 (5th Cir. 1995). Rather, his claim
is based only on the conclusory allegation that because his parole was denied there is necessarily

causation. His personal belief that he is a victim of retaliation is insufficient to raise a meritorious

retaliation claim.
D.

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 claim does not warrant
federal habeas relief, and his application for habeas corpus relief is 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
§

2253(c) (1 )(A). Pursuant to Rule

11

U.s.c.

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

Slackv. 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, a certificate of appealability is denied.

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It is therefore ORDERED that Petitioner Guadalupe Padilla's federal habeas corpus petition

under 28 U.S.C.

§

2254 is DENIED.

It is finally ORDERED that a certificate

Signed this

of appealability is DENIED.

day of December 2016.

(I
SAM SPARKS
UNITED STATES DISTRICT JUDGE