Opinion
No. 3-04-CV-0333-N.
July 14, 2004
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Robert Banda, appearing pro se, has filed an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons stated herein, the application should be denied.
I.
Petitioner is serving concurrent 30-year sentences on two convictions for aggravated sexual assault of a child. After he was denied parole in 2003, petitioner sought state post-conviction relief. His applications were denied without written order. Ex parte Banda, Nos. 57,916-01 57,916-02 (Tex.Crim.App. Jan. 21, 2004). Petitioner then filed this action in federal court.
II.
In multiple grounds for relief, petitioner contends that the decision of the parole board violates the separation of powers doctrine, the due process clause, the equal protection clause, and constitutes an abuse of discretion. Petitioner further alleges that the Texas Government Code deprives him of the opportunity to seek judicial review of an adverse parole decision.
A.
Petitioner is serving concurrent 30-year sentences on two convictions for aggravated sexual assault of a child. Both offenses were committed on November 2, 1988. ( See St. Hab. Tr-I at 36; St. Hab. Tr-II at 38). The parole board has twice considered petitioner for early release, but denied parole because "the instant offense . . . has elements of brutality, violence, or conscious selection of victim's vulnerability such that the inmate poses an undue threat to the public." (St. Hab. Tr-II at 29-30). Petitioner now challenges that decision on constitutional grounds. However, a state prisoner does not have a federal constitutional right to obtain release prior to the expiration of his sentence. See Board of Pardons v. Allen, 482 U.S. 369, 378 n. 10, 107 S.Ct. 2415, 2421 n. 10, 96 L.Ed.2d 303 (1987) (release on parole is "permissive" and does not give rise to constitutionally protected liberty interest); Johnson v. Rodriguez, 110 F.3d 299, 308 (5th Cir.), cert. denied, 118 S.Ct. 559 (1997) (citing cases) (Texas prisoners have no constitutional right to early release on parole and cannot mount a challenge against any state parole review procedures on procedural or substantive due process grounds). This ground for relief is without merit and should be overruled.B.
Petitioner further contends that he has been denied the opportunity to challenge the decision of the parole board in state court. Section 508.149 of the Texas Government Code provides, in pertinent part:
(b) An inmate may not be released to mandatory supervision if a parole panel determines that:
(1) the inmate's accrued good time is not an accurate reflection of the inmate's potential for rehabilitation; and
(2) the inmate's release would endanger the public.
* * * *
(d) A determination under Subsection (b) is not subject to administrative or judicial review, except that the parole panel making the determination shall reconsider the inmate for early release to mandatory supervision at least twice during the two years after the date of determination.
TEX. GOV'T CODE ANN. § 508.149 (Vernon Supp. 2004). By its terms, this statute applies only to mandatory supervision. It does not prevent judicial review of parole decisions. Because petitioner was denied parole and is not eligible for release to mandatory supervision, section 508.149 is inapplicable.
RECOMMENDATION
Petitioner's application for writ of habeas corpus should be denied.