Opinion
CIVIL ACTION NO. 4:01-CV-927-Y
April 23, 2002
This cause of action was referred to the United States Magistrate Judge under the provisions of Title 28 of the United States Code, § 636(b), as implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusions, and Recommendation of the United States Magistrate Judge are as follows:
I. FINDINGS AND CONCLUSIONS A. NATURE OF THE CASE
This is a petition for writ of habeas corpus by a state prisoner under Title 28 of the United States Code, § 2254.
B. PARTIES
Petitioner Derrick Brackens, TDCJ-ID #1081785, is in custody of the Texas Department of Criminal Justice, Institutional Division, and is presently incarcerated in the Middleton Unit in Abilene, Texas. At the time he filed this petition, he was in custody of the Tarrant County Sheriff, Dee Anderson.
Respondent Janie Cockrell is the Director of the Texas Department of Criminal Justice, Institutional Division.
C. FACTUAL AND PROCEDURAL HISTORY
Brackens was indicted for the December 23, 1995 assault of a public servant causing bodily injury. On October 16, 1996, after Brackens pleaded guilty, the trial court sentenced him to five years' confinement. (Resp't Reply at Attach.) Brackens did not appeal the trial courts judgment. (Federal Pet. at 3.)
On September 28, 1998, Brackens was released on parole. (Pet'r Mem. in Supp. at 1.) At some point, Brackens committed another offense and was confined in the Tarrant County Jail. ( Id.) On January 22, 2001, the Parole Board issued a "blue warrant" for Brackens and began the process of revoking his parole because he was confined in the Tarrant County Jail on a new criminal offense. ( Id.) On September 10, 2001, Brackens filed two state applications for habeas corpus relief apparently raising the same arguments raised in the instant petition. (Federal Pet. at 3-4.) The Court of Criminal Appeals denied the applications without written order on October 24, 2001. Ex parte Breckens, Nos. 50, 326-01 02 (Tex.Crim.App. Oct. 24, 2001) (not designated for publication). Brackens filed the instant federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Fort Worth Division, on November 21, 2001. See Spotvllle v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (holding pro se habeas petition filed when papers delivered to prison authorities for mailing). On February 7, 2002, Brackens waived his right to a revocation hearing, and the Parole Board revoked his parole on February 11, 2002.
A "blue warrant" is an arrest warrant issued with a parolee is suspected of violating the conditions of his parole. TEX. GOVT CODE ANN. § 508.252 (Vernon Supp. 2002); Franklin v. kyle, 899 S.W.2d 405, 406 n. 1 (Tex.App.-Waco 1995, no pet.).
The original respondent, Dee Anderson, filed a reply to Brackens's petition, but failed to file a copy of the state court records. RULES GOVERNING SECTION 2254 CASES 5. However, these records are not necessary to dispose of the issues raised in this petition. This court confirmed the information regarding the state habeas applications by phone with the Texas Court of Criminal Appeals.
These facts were confirmed by phone with the Texas Department of Criminal Justice and the Board of Pardons and Paroles.
D. ISSUE
Brackens argues that because his revocation hearing was not held within 120 days after the blue warrant was issued, he should be released and application of any exception to this time limit violates the Ex Post Facto Clause.E. RULE 5 STATEMENT
Lack of exhaustion has not been raised.
F. DISCUSSION
1. Legal Standard for Granting Habeas Corpus Relief
A writ of habeas corpus on behalf of a person in custody under a state court judgment shall not be granted with respect to any claim that was adjudicated on the merits in state court proceedings unless he shows that the prior adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law 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. 28 U.S.C. § 2254 (d). A decision is contrary to clearly established federal law if the state court arrives at a conclusion opposite to that reached by the United States 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. Williams v. Taylor 529 U.S. 362, 405-06 (2000); see a/so Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000), cert. denied, 532 U.S. 1039 (2001). A state court decision will be an unreasonable application of clearly established precedent if it correctly identifies the applicable rule but applies it unreasonably to the facts of the case. Williams, 529 U.S. at 407-08.
Section 2254(e)(1) provides that a determination of a factual issue made by a state court shall be presumed to be correct. The applicant has the burden of rebutting this presumption of correctness by clear and convincing evidence. Hill, 210 F.3d at485. When the Texas Court of Criminal Appeals denies relief in a state habeas corpus application without written order, it is an adjudication on the merits, which is entitled to this presumption. Ex parte Torres, 943 S.W.2d 469, 472 (Tex.Crim.App. 1997).
2. Timeliness of Hearing
Brackens argues that his revocation hearing was unlawful and void because it was held more than 120 days after he was arrested. He relies on former article 42.18, section 14(a) of the Code of Criminal Procedure for his assertion that the hearing is void if held later than the 120th day after arrest. However, the 1995 version of this statute, which Brackens relies on, includes the very exception that Brackens claims does not apply to him: "The requirement . . . that a warrant be withdrawn [if a hearing is not held within 120 days] does not apply if the person . . . is subject to pending criminal charges that have not been adjudicated." Act of May 25, 1995, 74th Leg., R.S., ch. 321, § 2.010, art. 42.18, sec. 14(c)(4), 1995 Tex. Gen. Laws 2774, 2809. Thus, this exception to the 120-day limit applied to Brackens, and there was no ex-post-facto violation. Further, because Brackens waived his right to a revocation hearing, it would be difficult for this court to find that the absence of a timely hearing violated his constitutional rights.
Act of May 25, 1995, 74th Leg., R.S., ch. 321, § 2.010, art. 42.18, 1995 Tex. Gen. Laws 2774, 2809; amended by Act of May 16, 1997, 75th Leg., R.S., chs. 429, § 2, art. 42.18, 1997 Tex. Gen. Laws 1687, 1687-88 and recodified by Act of May 8, 1997, 75th Leg., R.S., ch. 165, § 12.01, sec. 508.282, 1997 Tex. Gen. Laws 327, 435; repealed by Act of April 23, 1999, 76th leg., R.S., ch. 62, § 10.39(6), art. 42.18, 1999 Tex. Gen. Laws 127, 334 and amended byAct of April 23, 1999, 76th Leg., R.S., ch. 62, § 10.33, sec. 508.282, 1999 Tex. Gen. Laws 127, 332-33 (current version at TEX. GOVT CODE ANN. § 508.282 (Vernon Supp. 2002)).
4. Summary
Brackens is lawfully restrained because he has failed to prove that he has been denied a constitutionally protected interest. Accordingly, the state courts' determination that Brackens was not entitled to relief is not contrary to or does not involve an unreasonable application of clearly established federal law and is not based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings.
II. RECOMMENDATION
Brackens's petition for writ of habeas corpus should be denied.
III. NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSIONS, AND RECOMMENDATION AND CONSEQUENCES OF FAILURE TO OBJECT
Under 28 U.S.C. § 636 (b)(1), each party to this acdon has the right to serve and file specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation within ten (10) days after the party has been served with a copy of this document. The court is extending the deadline within which to file, not merely place in the mail, specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation until May 14, 2002. Failure to file specific written objections within the specified time shall bar a de novo determination by the district court of any finding of fact or conclusion of law and shall bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any unobjected to, proposed factual findings and legal conclusions accepted by the district court. See Douglass v. United Sews. Auto Ass'ii, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc op. on reh'g); Carter v. Collins, 918 F.2d 1198 (5th Cir. 1990).
IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until May 14, 2002 to serve and file, not merely place in the mail, written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation. It is further ORDERED that if objections are filed and the opposing party chooses to file a response, the response shall be filed within seven (7) days of the filing date of the objections.
It is further ORDERED that the above-styled and numbered action, previously referred to the United States Magistrate Judge for findings, conclusions, and recommendation, is returned to the docket of the United States District Judge.