Opinion
Civil Action No. 3:02-CV-2194-G.
March 28, 2005
MEMORANDUM OPINION AND ORDER
Before the court is the petition of George Wayne Dennis ("Dennis") for a writ of habeas corpus. For the reasons discussed below, Dennis' petition is denied.
I. BACKGROUND
On September 16, 1993, Dennis was convicted in a Texas state court, on his plea of guilty, of aggravated assault and sentenced to twenty years imprisonment. Petition for a Writ of Habeas Corpus by a Person in State Custody ("Petition") at 2. According to Dennis, he has been denied release on parole on four occasions, id. at 7, and the Texas Board of Pardons and Paroles (the "board") continued his next parole hearing from May 2001 until May 2003. Memorandum in Support of Petitioner's Writ of Habeas Corpus ("Memorandum") at 1, attached to Petition as Exhibit 1A. Dennis filed the instant petition on October 9, 2002, in which he challenges, not his original conviction, but the denial of his requests for early release on parole and the continuance, or set-off, of his next hearing. Petition at 7; see generally Memorandum.
II. ANALYSIS
Dennis, appearing pro se, alleges that the board violated his rights when it denied his requests to be released on parole and continued his next hearing. Specifically, Dennis alleges that the denial of his requests to be released on parole violated: (1) his rights to due process, (2) the ex post facto clause of the Constitution of the United States (the "Constitution"), (3) the double jeopardy clause of the Constitution, and (4) the separation of powers.
A. Due Process
"Federal habeas relief is available only if a prisoner `has been deprived of some right secured to him or her by the United States Constitution or by the laws of the United States.'" Arnold v. Cockrell, 306 F.3d 277, 278 (5th Cir. 2002) (citing Malchi v. Thaler, 211 F.3d 953, 957 (5th Cir. 2000)). The Fifth Circuit has observed "that because Texas prisoners have no protected liberty interest in parole they cannot mount a challenge against any state parole review procedure on procedural (or substantive) Due Process grounds." Johnson v. Rodriguez, 110 F.3d 299, 308 (5th Cir.), cert. denied, 522 U.S. 995 (1997). The Fifth Circuit has recognized, however, that "there is a constitutional expectancy of early release created by Texas's mandatory supervision scheme in place prior to September 1, 1996 for earned good time credits." Malchi, 211 F.3d at 957-58.
Although Dennis was sentenced prior to September 1, 1996, he is not eligible for mandatory supervision because the offense for which he was convicted, aggravated assault, is specifically excluded from the scope of the statute providing for release on mandatory supervision. See TEX. CRIM. PROC. CODE ANN. Art. 42.18 § 8(c)(5) (now repealed) ("A prisoner may not be released to mandatory supervision . . . if the prisoner is serving a sentence for . . . a second degree or first degree felony under Section 22.2, Penal Code (Aggravated Assault)"). Therefore, Dennis has no viable due process claim based upon the denial of his requests for release on parole.
B. Ex Post Facto
Dennis next argues that the denial of his requests to be released early on parole violates the ex post facto clause of the Constitution. "A law violates the Ex Post Facto Clause if it (1) punishes as a crime an act previously committed which was not a crime when done; (2) makes more burdensome the punishment for a crime after it has been committed; or (3) deprives a defendant of any defense available according to the law at the time the charged act was committed." United States v. Hickman, 331 F.3d 439, 445 (5th Cir. 2003). Dennis has alleged no change in the law that resulted in his conviction or his sentence which increases his punishment; thus, his allegations are merely conclusory and cannot form the basis of habeas relief.
C. Double Jeopardy
Dennis further alleges that the denial of release on parole is a violation of the double jeopardy clause of the Constitution. "The Constitution contemplates three types of double jeopardy: `a second prosecution for the same offense after acquittal; a second prosecution for the same offense after conviction; and multiple punishments for the same offense.'" United States v. Gonzalez, 76 F.3d 1339, 1343 (5th Cir. 1996) (citing United States v. Halper, 490 U.S. 435, 440 (1989)). However, the Fifth Circuit has declined to extend double jeopardy protection to parole revocation. See Morrison v. Johnson, 106 F.3d 127, 129 n. 1 (5th Cir. 1997) (citing Cortinas v. United States Parole Commission, 938 F.2d 43, 46-47 (5th Cir. 1991)). It necessarily follows, therefore, that denial of early release on parole is also not subject to the protections of double jeopardy. Dennis continues to serve the original twenty year term of imprisonment; he has not suffered multiple punishments for his conviction of aggravated assault.
D. Separation of Powers
Finally, Dennis alleges that the denial of his requests to be released on parole interferes with the sentencing authority of the Texas state court. Under Texas law, the executive branch of the government has exclusive power to make determinations regarding parole. TEXAS CONST. art. IV § 11. Dennis' allegation of a separation of powers violation based upon the state's failure to release him on parole is without merit.
III. CONCLUSION
For the reasons discussed above, Dennis' petition for writ of habeas corpus is DENIED.
SO ORDERED.