Rodrigues v. Davis

Filing 26

MEMORANDUM OPINION AND ORDER. Signed by Judge Fred Biery. (mgr)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION

OCT 2 5
U

2018

a

RN

RODOLFO RODRIGUES,
TDCJ No. 01404233,

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§

§

Petitioner,

§
§

v.

SA-18-CA-0212-FB

§
§

LORIE DAVIS, Director,
Texas Department of Criminal Justice,
Correctional Institutions Division,

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§
§
§

Respondent.

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MEMORANDUM OPINION AND ORDER
Before the court are pro se petitioner Rodolfo Rodriguez's petition for federal habeas
corpus relief pursuant to 28 U.S.C.

§

2254 (ECF No. 3), respondent's answer (ECF No. 21), and

petitioner's reply thereto (ECF No. 25). Having reviewed the record and pleadings submitted by
both parties, the court concludes petitioner is not entitled to federal habeas corpus relief under
the standards prescribed by the Antiterrorism and Effective Death Penalty Act of 1996
(AEDPA). See 28 U.S.C.

§

2254(d). Petitioner is also denied a certificate of appealability.

I. Background
In November 2006, petitioner pleaded nob contendere to one count of aggravated assault

with a deadly weapon and was sentenced to ten years of imprisonment pursuant to the plea
agreement. State

v.

Rodriguez, No. 2004-CR-3716 (379th Dist. Ct., Bexar Cnty., Tex. Nov. 1,

2006); ECF No. 22-3 at 4 (plea bargain); ECF No. 22-5 at

5

(judgment). He did not appeal this

conviction and sentence. On April 23, 2012, petitioner was released on parole. ECF No. 22-6 at
4. However, on September 19, 2016, petitioner's parole was revoked because he was convicted

of possession of a firearm by a felon in cause number 2016-CR-3888 in the 144th Judicial

District Court of Bexar County. Id. at 5. When petitioner was returned to TDCJ custody ten
days later, he lost all street-time credits (three years, nine months, and nine days) earned during
his release due to his aggravated assault conviction. Id.
On November 4, 2016, petitioner filed a time dispute resolution form with TDCJ.

Roughly two months later, petitioner was advised by TDCJ that only the judge could award him

with additional credit for time spent in Bexar County on parole and that TDCJ could not alter his
record without a court order. Id. Petitioner then filed a state application for habeas corpus relief
on July 26, 2017, arguing that he had already completed his ten-year sentence. ECF No. 22-2 at
7, 13. The Texas Court

of Criminal Appeals denied Petitioner's state application without written

order on January 24, 2018. ECF No. 22-1. Petitioner placed the instant federal habeas petition
in the prison mail system on January 29, 2018, raising the following allegations: (1) he should

not have lost the "Street time" he accrued while on parole; (2) the trial court violated his rights by

taking his street time and by refusing to respond to his filings in a timely fashion; and (3) the trial
court made false claims concerning his filing a time resolution form. ECF No.

3

at 6-7, 10.

II. Standard of Review
Petitioner's federal habeas petition is governed by the heightened standard of review
provided by the AEDPA. 28 U.S.C.A.

§

2254. Under

§

2254(d), a petitioner may not obtain

federal habeas corpus relief on any claim that was adjudicated on the merits in state court
proceedings, unless the adjudication of that claim either: (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

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court proceeding.

Brown

v.

Payton, 544 U.S. 133, 141 (2005).

This intentionally difficult

standard stops just short of imposing a complete bar on federal court relitigation of claims
already rejected in state proceedings. Harrington

v.

Richter, 562 U.S. 86, 102 (2011) (citing

Felker v. Turpin, 518 U.S. 651, 664 (1996)).
A federal habeas court's inquiry into unreasonableness should always be objective rather

than subjective, with a focus on whether the state court's application of clearly established
federal

law was

"objectively unreasonable"

erroneous. McDaniel

v.

and not

whether it was incorrect

Brown, 558 U.S. 120 (2010); Wiggins

v.

or

Smith, 539 U.S. 510, 520-21

(2003). Even a strong case for relief does not mean the state court's contrary conclusion was

unreasonable, regardless of whether the federal habeas court would have reached a different

conclusion itself. Richter, 562 U.S. at 102. Instead, a petitioner must show that the decision was
objectively unreasonable, which is a "substantially higher threshold." Schriro
U.S. 465, 473 (2007); Lockyer

v.

v.

Landrigan, 550

Andrade, 538 U.S. 63, 75-76 (2003). So long as "fairminded

jurists could disagree" on the correctness of the state court's decision, a state court's
determination that a claim lacks merit precludes federal habeas relief. Richter, 562 U.S. at 101
(citing Yarborough

v.

Alvarado, 541 U.S. 652, 664 (2004)). In other words, to obtain federal

habeas relief on a claim previously adjudicated on the merits in state court, petitioner must show
that the state court's ruling "was so lacking in justification that there was an error well
understood and comprehended in existing law beyond any possibility for fairminded

disagreement." Id. at 103; see qiso Bobby v. Dixon, 565 U.S. 23, 24 (2011).

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III. Analysis
A.

Exhaustion and Procedural Default
Before seeking review in federal court, a habeas corpus petitioner must first present his

claims in state court and exhaust all state court remedies through proper adjudication on the

merits. 28 U.S.C.

§

2254(b); Ries

v.

Quarterman, 522 F.3d 517, 523 (5th cir. 2008) ("To satisfy

the exhaustion requirement, the petitioner must fairly present the substance of his federal claim
to the highest state court."). Respondent contends that all three of petitioner's allegations are

unexhausted and thus procedurally barred from federal habeas corpus relief. (ECF No. 21 at 6).
Although petitioner's first claim (challenging the loss of street time) is not worded the same as
the allegation he raised during his state habeas proceedings (arguing his sentence was

discharged), the argument is the samepetitioner believes he should not have lost his street time
and that his sentence should be considered discharged. Thus, the claim is exhausted pursuant to
§

2254(b). However, the record confirms that petitioner has not fairly presented his second or

third allegations in state court before seeking federal habeas corpus review. Because these
claims are being presented for the first time in this federal habeas proceeding, they are
unexhausted under

§

2254(b) and procedurally barred from federal habeas review.

"A procedural default ... occurs when a prisoner fails to exhaust available state remedies
and the court to which the petitioner would be required to present his claims in order to meet the

exhaustion requirement would now find the claims procedurally barred." Nobles v. Johnson, 127
F.3d 409, 420 (5th Cir. 1997) (citation and internal quotation marks omitted). Petitioner failed to

exhaust state court remedies with regard to claims two and three raised in his federal habeas
petition.

Should this court require him to return to state court to satisfy the exhaustion

requirement with the Texas Court of Criminal Appeals, that court would find the claims
procedurally barred under the abuse of the writ doctrine found in Article 11.07

§

4 of the Texas

Code of Criminal Procedure. Because Texas would likely bar another habeas corpus application
by petitioner, he has committed a procedural default that is sufficient to bar federal habeas

corpus review. See, e.g., Bagwell

v.

Dretke, 372 F.3d 748, 755-56 (5th Cir. 2004) (holding a

petitioner procedurally defaulted by failing to "fairly present" a claim to the state courts in his
state habeas corpus application); Smith

v.

Cockrell, 311 F.3d 661, 684 (5th Cir. 2002) (holding

unexhausted claims were procedurally barred); Jones

v.

Johnson, 171 F.3d 270, 276-77 (5th Cir.

1999) (same).

Consequently, petitioner is precluded from federal habeas review of these claims unless
he can show cause for the default and resulting prejudice, or demonstrate that the court's failure

to consider his claim will result in a "fundamental miscarriage of justice."
Thompson, 501 U.S. 722, 750-51 (1991); Barrientes

v.

Coleman

v.

Johnson, 221 F.3d 741, 758 (5th Cir.

2000). Petitioner has made no attempt to demonstrate cause and prejudice for his failure to raise

these claims in state court.

Nor has he made any attempt to demonstrate that the court's

dismissal of these claims will result in a "fundamental miscarriage of justice." Thus, circuit
precedent compels the denial of petitioner's second and third claims as procedurally defaulted.
B.

Street Time Credit
Petitioner argues he is entitled to credit for the time he spent on parole, also known as

"street time." Despite petitioner's argument, the law in this circuit firmly establishes that time
spent on parole or mandatory supervision does not operate to reduce the sentence of a parole or
mandatory supervision violator returned to prison. The courts have consistently held that by

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violating parole or mandatory supervision, a prisoner forfeits all credit of good conduct time
accumulated prior to release and all credit for time on parole or mandatory supervision. See

Cortinas v. United States Parole Comm 'n, 938 F.2d 43(5th Cir. 1991); Munguia v. United States

Parole Comm'n, 871 F.2d 517, 521 (5th Cir. 1989); United States

v.

Newton, 698 F.2d 770, 772

(5th Cir. 1983); Starnes v. Cornett, 464 F.2d 524 (5th Cir. 1972). Thus, petitioner has no federal
constitutional right to reduction of his sentence for time spent on parole or mandatory
supervision. Additionally, the court notes parole and mandatory supervision conditions are not

additional to, but rather part of, the original sentence. See Coronado

Parole, 540 F.2d216, 218 (5th Cir. 1976); Sturgis

v.

v.

United States Board of

United States, 419 F.2d 390 (5th Cir. 1969).

Petitioner is not being forced to serve more than his ten-year sentence. Petitioner violated the

terms of his supervision, and as a result, lost any credit for the time he spent on parole.
Petitioner is also not entitled to his street-time credit based on Texas law governing
parole and mandatory supervision. The Texas parole statute in effect at the time the controlling

offense was committed provides in relevant part:

If a parole panel revokes the person's parole, the panel may require the person to
serve the remaining portion of the person's sentence in the institutional division.
The remaining portion of the person's sentence is computed without credit for the
time from the date of the person's release to the date of revocation.
Tex. Gov't Code

§

Accordingly, petitioner was never entitled to

508.156(e) (West 2006).

receive a reduction of his sentence for the time he spent on parole. Indeed, petitioner does not

deny he received notice prior to his release on parole that he would not receive credit for the time

spent on parole if his parole was revoked.
Furthermore, the Texas statute addressing street time credit in effect at the time of

petitioner's revocation in 2016, read in pertinent part:

S

If the parole, mandatory supervision, or conditional pardon of a person described
by Section 508.149(a) is revoked, the person may be required to serve the
remaining portion of the sentence on which the person was released. The
remaining portion is computed without credit for the time from the date of the
person's release to the date of revocation.

Tex. Gov't Code

§

508.283(b) (West 2016). In other words, an inmate serving a sentence for, or

previously convicted of, a crime described in section 508.149(a) of the Texas Government Code
is not entitled to restoration of street-time credit. In this case, petitioner had been convicted of

aggravated assault with a deadly weapon prior to his revocation, which is one of the offenses
listed in section 508.149(a) of the Texas Government Code.
§

508.149(a)(1), (7). Because petitioner was a person described in

§

See Tex. Gov't Code

508.149(a) at the time of his

parole revocation, he was not entitled to street-time credit pursuant to

§

508.283(b) for time

spent on parole prior to revocation.
As a result, 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.

IV. Certificate of Appealability
The court must now determine whether to issue a certificate of appealability (COA). See
Rule 11(a) of the Rules Governing

§

2254 Proceedings; MillerEl

v.

33 5-36 (2003) (citing 28 U.S.C. § 2253(c)(1)). A COA may issue only

Cockrell, 537 U.S. 322,

if a petitioner makes "a

substantial showing of the denial of a constitutional right."

28 U.S.C.

Supreme Court has explained that the showing required under

§

§

2253(c)(2).

The

2253(c)(2) is straightforward

when a district court has rejected a petitioner's constitutional claims on the merits:

The

petitioner must demonstrate "that reasonable jurists would find the district court's assessment of

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the constitutional claims debatable or wrong." Slack

v.

McDaniel, 529 U.S. 473, 484 (2000).

This requires a petitioner to show "that reasonable jurists could debate whether the petition
should have been resolved in a different manner or that the issues presented were 'adequate to
deserve encouragement to proceed further." MillerEl, 537 U.S. at 336 (citation omitted).
The issue becomes somewhat more complicated when the district court denies relief on

procedural grounds. Id. In that case, the petitioner seeking COA must show both "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." Gonzalez

v.

Thaler, 565 U.S. 134, 140-41 (2012) (citing

Slack, 529 U.S. at 484). In that case, a COA should issue

if the petitioner not only shows that the

lower court's procedural ruling is debatable among jurists of reason, but also makes a substantial
showing of the denial of a constitutional right.
A district court may deny a COA sua sponte without requiring further briefing or

argument. See Alexander

v.

Johnson, 211 F.3d 895, 898 (5th Cir. 2000). For the reasons set

forth above, the court concludes that jurists of reason would not debate the conclusion that

petitioner was not entitled to federal habeas relief As such, a COA will not issue.
V. Conclusion

After careful consideration, the court concludes that two of petitioner's allegations

(claims 2 and 3) are unexhausted and thus procedurally barred from federal habeas relief For
the lone remaining allegation that was properly exhausted (claim 1), Petitioner has failed to

establish that the state court's rejection of the claim on the merits during his state habeas corpus

proceedings was either (1) contrary to, or involved an unreasonable application of, clearly

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established federal law, as determined by the Supreme Court of the United States, or (2) based on
an unreasonable determination of the facts in light of the evidence presented in the petitioner's
state habeas corpus proceedings. As a result, petitioner's federal habeas corpus petition does not

warrant federal habeas corpus relief.
Accordingly, IT IS HEREBY ORDERED that:
1.

Petitioner Rodolfo Rodrigues's

§

2254 petition (ECF No. 3) is DISMISSED

WITH PREJUDICE;
2.

No Certificate of Appealability shall issue in this case; and

3.

All other remaining motions, if any, are DENIED, and this case is now

CLOSED.
It isso ORDERED.

SIGNED this the

25 t h

day of October, 2018.

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