Opinion
No. 3:04-CV-2141-M.
January 27, 2005
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636(b) and an order of the District Court in implementation thereof, the subject cause has previously been referred to the undersigned United States Magistrate Judge. The findings, conclusions, and recommendations of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS:
Type Case: This is a petition for habeas corpus relief filed by a state inmate pursuant to 28 U.S.C. § 2254.
Parties: Petitioner Gregory Allen Claybon ("Claybon" or "Petitioner") is confined at the Middleton Transfer Facility of the Texas Department of Criminal Justice, Correctional Institutions Division ("TDCJ-CID") at Abilene, Texas. Respondent is the Director of TDCJ-CID.
Statement of the Case: On September 27, 1993, Petitioner pled guilty to indecency with a child pursuant to negotiated plea agreements in cause numbers F93-42134-H and F93-42135-H. The trial judge found Claybon guilty of both offenses and assessed punishment in each case at ten years' confinement, probated for five years, and a three hundred dollar fine.
Following imposition of the probated sentence the State filed four motions to revoke his probations. On each occasion Claybon was represented by counsel and entered a plea of true to the violations of conditions of probation alleged in the respective motions. In each of the first three revocation hearings the trial court continued him on probation, but at the final hearing on January 6, 2000, the court revoked his probation and sentenced him to concurrent ten year prison terms, which had initially been suspended.
Claybon appealed the revocations of his probated sentences to the Fifth Court of Appeals which affirmed his convictions on March 1, 2001. Claybon v. State, Nos. 05-00-00116-CR and 05-00-00117-CR, 2001 WL 200122 (Tex.App.-Dallas Mar. 1, 2001, pet. ref'd) (not selected for publication). His petition for discretionary review was refused by the Court of Criminal Appeals on May 30, 2001. Petitioner thereafter filed two state applications for writ of habeas corpus pursuant to article 11.07, Texas Code of Criminal Procedure, on February 15, 2002, which were both denied without written order on the findings of the trial court without a hearing on September 15, 2004. Ex Parte Claybon, Appl. No. 49,534-02, Ex Parte Claybon, Appl. No. 49,534-03. Claybon filed the instant habeas petition on September 28, 2004.
The record does not reflect the nature or the disposition of Appl. No. 49,534-01.
Findings and Conclusions:
Review of Petitioner's claims is governed by the provisions of the Antiterrorism and Effective Death Penalty Act which in pertinent part provides that a federal court cannot grant relief under § 2254 unless the adjudication of the state prisoner's claim in the state court system "resulted in a decision that involved an unreasonable application of clearly established Federal law, as determined by the Supreme Court of the United States; or resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceedings." § 2254(d)(1) (2). Further, findings of fact made by a State court are presumed to be correct absent clear and convincing evidence rebutting the presumption. § 2254(e)(1).
Petitioner's grounds for relief relate to a hearing on August 5, 1998, at which his probation term was extended for one year. In his petition he claims that the hearing was unscheduled, held in a closed courtroom, unrecorded, and that he was denied counsel throughout the hearing. Respondent asserts that Claybon's claims as to a closed courtroom and the scheduling of his hearing are unexhausted and procedurally defaulted. Petitioner agrees that he failed to exhaust his claim that his hearing was held in a closed courtroom. (Pet. G.A. Claybon's Rebuttal to Resp't's Ans. at 1).
The record reflects that Claybon complained in both art. 11.07 applications that "[t]here were no motions filed to give advanced notice that the Judge was intending to extend my probation. To [sic] give me time and the chance to consult a lawyer about my rights." Ex Parte Claybon, Appl. No. 49,534-02 at 5, Ex Parte Claybon, Appl. No. 49,534-03 at 7. In his habeas petition, he asserts that "[t]he State [sic] never scheduled a hearing date with the court." (Pet. for a Writ of Habeas Corpus by a Person in State Custody at 7).
Assuming arguendo that these claims were not exhausted, this court may nonetheless deny relief. See § 2254(b)(2). The fact that neither Claybon nor his counsel requested a continuance of the hearing strongly suggests an adequate time to confer was provided. More to the point and dispositive of these claims is the fact that Claybon has cited no Supreme Court case holding that a probationer is entitled to advance notice of a hearing, the purpose for which is to extend a term of probation.
With respect to his claims that no record was made of the August 5, 1998 hearing and that he was not represented by counsel at the hearing, the Texas Court of Criminal Appeals explicitly found that Claybon was represented by counsel. Ex Parte Claybon, Appl. No. 49,534-02 post-remand supplement at 4. In addition, the record contains a transcript of the August 5, 1998 hearing which conclusively refutes both of Petitioner's allegations. Id. at 5-11.
RECOMMENDATION:
Petitioner has failed to show that he is entitled to relief pursuant to 28 U.S.C. § 2254. Specifically, he has failed to establish that the decisions of the Texas Court of Criminal Appeals met the prerequisites of § 2254(d)(1) or (2). It is therefore recommended that the petition be denied on the merits.
A copy of this recommendation shall be transmitted to the Petitioner and to counsel for Respondent.