VanDemark v. Davis

Filing 4

ORDER DISMISSING CASE. Signed by Judge Xavier Rodriguez. (aej)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
VANCE BONIFAY VANDEMARK,
TDCJ No. 1989257,
Petitioner,
v.
LORIE DAVIS, Director,
Texas Department of Criminal Justice,
Correctional Institutions Division,
Respondent.

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SA-17-CA-00407-XR

ORDER OF DISMISSAL
Before the Court is Petitioner Vance Bonifay VanDemark’s petition for habeas corpus
relief under 28 U.S.C. § 2254. (Docket Entry 1). For the reasons set forth below, Petitioner’s
federal habeas corpus petition is dismissed with prejudice pursuant to Rule 4 of the Rules
Governing Section 2254 Proceedings. Petitioner is also denied a certificate of appealability.
Background
In March 2015, Petitioner pled guilty in Kerr County to assault family violence and was
sentenced to four years. State v. VanDemark, No. A-1592 (216th Dist. Ct., Kerr Cty., Tex. Mar.
19, 2015). According to Petitioner he did not appeal his conviction; instead, he filed a state
habeas corpus application challenging the decision of the Board of Pardons and Parole (BPP) to
deny his release to mandatory supervision. The Texas Court of Criminal Appeals denied his
petition on August 10, 2016, without written order. Ex parte Vandermark, No. 85,205-01 (Tex.
Crim. App.). Petitioner placed the instant federal habeas petition in the prison mail system on
April 18, 2017. In the § 2254 petition, he contends the BPP’s decision to deny him mandatory
supervision release was incorrect because he is rehabilitated and no longer a threat to society.

Analysis
“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 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). One of the exceptions to Texas’s
mandatory supervision law adds a dimension of discretion to the mandatory supervision scheme,
providing that, if a parole panel determines that the inmate’s accrued good conduct time is not an
accurate reflection of the inmate’s potential for rehabilitation and the inmate’s release would
endanger the public, he may not be released to mandatory supervision. See Malchi v. Thaler,
211 F.3d 953, 958 n. 6 (5th Cir. 2000) (citing TEX. GOV’T. CODE § 508.149(b)).
Both the Fifth Circuit and the Texas courts have held Texas’s current mandatory
supervision scheme (outlined above) creates 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 does have a protected liberty interest in, and is entitled to due
process protection with respect to, the decision to deny him mandatory supervision. However,
this simply means certain procedural due process protections must be afforded Petitioner by the
BPP 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

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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 given 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 BPP in support of his release, or (3) he was not informed in what respects he
fell short of qualifying for early release. Quite the opposite, Petitioner’s allegations challenge
the reasons given by the BPP in denying his release, thus indicating he had previously received
the process to which he was due under the law with regard to the denial of mandatory
supervision. Petitioner was given notice, an opportunity to be heard, and the reasons he was
denied mandatory supervision release, and there is no reason to think he will not be afforded
those same protections in the future.
To the extent Petitioner complains that the BPP’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 that the
statutory criteria directing the BPP to evaluate the inmate’s potential for rehabilitation and
potential dangerousness to 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

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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, any challenge by Petitioner
to the factors considered by the BPP 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 BPP 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.
Conclusion
Rule 4 Governing Habeas Corpus Proceedings states a habeas corpus petition may be
summarily dismissed “[i]f it plainly appears from the face of the petition and any exhibits
annexed to it that the petitioner is not entitled to relief in the district court.” For the foregoing
reasons, VanDemark’s federal habeas corpus petition does not warrant federal habeas corpus
relief.
Accordingly, IT IS HEREBY ORDERED that:
1. Petitioner VanDemark’s § 2254 petition (Docket Entry 1) is DISMISSED WITH
PREJUDICE pursuant to Rule 4 of the Rules Governing § 2254 Proceedings;
2. Petitioner failed to make “a substantial showing of the denial of a federal right” and
cannot make a substantial showing that this Court’s procedural rulings are incorrect as required
by Federal Rule of Appellate Procedure 22 for a certificate of appealability.

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See Slack v.

McDaniel, 529 U.S. 473, 483–84 (2000). Therefore, this Court DENIES Petitioner a certificate
of appealability. See Rule 11(a) of the Rules Governing § 2254 Proceedings; and
3. All other remaining motions, if any, are DENIED, and this case is now CLOSED.
It is so ORDERED.
SIGNED this 13th day of June, 2017.

____________________________________
XAVIER RODRIGUEZ
United States District Judge

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