Opinion
CIVIL ACTION NO. 3:03-CV-286-K
August 14, 2003
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 been previously 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 pursuant to 28 U.S.C. § 2254.
Parties: Petitioner Melvin Vince Elder ("Elder" or "Petitioner") is an inmate confined at the Segovia Unit of the Texas Department of Criminal Justice-Institutional Division (TDCJ-ID) at Edinburg, Texas. Respondent is the Director of TDCJ-ID.
Statement of the Case: Upon his plea of guilty to the offense of unlawful possession of a controlled substance, to wit: cocaine, as charged in the indictment filed in No. F-9846966-UI, Petitioner was sentenced to five years of confinement in TDCJ and ordered to pay a fine of $600. Ex Parte Elder, Appl. No. 53-383-01 (hereinafter "Appl") at p. 42.
Elder did not appeal his conviction. However, on January 17, 2001, Elder filed a state application for writ of habeas corpus challenging his conviction pursuant to Texas Code of Criminal Procedure art. 11.07. See attach. #1. Subsequent to the State's response to his 11.07 application but before the trial judge rendered his Findings of Fact and Conclusions of Law on the same, Elder, apparently, without seeking or obtaining leave of court, filed his "Amended" 11.07 application on July 8, 2002. Appl. at pp. 04-12. On July 16, 2002, the trial court reviewed Petitioner's application as well as the trial court records, and, thereafter, made findings of fact and conclusions of law. Id. at pp. 27-30. On September 11, 2002, the Texas Court of Criminal Appeals denied Elder's application without a written order on the findings of the trial court without a hearing. Id. at cover.
On December 15, 2000, Elders, apparently, mailed his art. 11.07 application to the Dallas County Clerk's office. Pet.'s Show Cause Response to the Court's Order at p. 2. On January 2, 2001, a deputy district clerk mailed a letter to Elders informing him that his application was being returned to him under the auspices of Texas Rule of Appellate Procedure 73, id. at Ex. B, in response to which Elders re-submitted his application. Id. at pp. 2-3. The same bears a file-stamp date of January 17, 2001 from the Dallas County Clerk's office.
To the extent that Respondent has wholly failed to object to Petitioner having filed an "Amended" art. 11.07 application in her answer and, apparently, failed to object to the same in the Texas state courts, the court need not determine the propriety of Petitioner's amendment.
In his present petition, filed on February 10, 2003, Petitioner alleges that (1) the Texas Board of Pardons and Paroles and the TDCJ-ID reneged on an oral agreement whereby Elders would either be paroled or released under mandatory supervision after successfully completing a therapeutic community substance abuse treatment program, and (2) Elder was not provided with notice, prior to May 11, 2000, that on that date he would be "reviewed" for mandatory supervision release. See Pet. at p. 8 and Mem. In Support attached thereto.
In response to the instant petition and this court's show cause order, on December 12, 2001, Respondent filed an answer together with copies of Elder's prior state court proceedings. Respondent claims that Elder has failed to exhaust his state remedies and/or has raised a procedurally defaulted claim, and, therefore, has moved for dismissal of ground 2, supra. On June 9, 2003, Elder filed his "Objections to Respondent's Answer."
Analysis:
Before addressing the merits of Petitioner's allegations, the court considers the lack of exhaustion/procedural default issue raised by Respondent. Federal jurisprudence has long required that a state prisoner normally must exhaust all available state remedies before seeking federal habeas relief. See Nobles v. Johnson, 127 F.3d 409, 419 (5th Cir. 1997), cert. denied 523 U.S. 1139, 118 S.Ct. 1845 (1998) (citing Ex parte Royall, 117 U.S. 241, 251, 6 S.Ct. 734, 740 (1886)); see also 28 U.S.C. § 2254(b)(l)(A). To exhaust state remedies, a habeas petitioner must have "fairly presented" the substance of his claim to the state courts. Id. at 420 (citing Picard v. Connor, 404 U.S. 270, 275-76, 92 S.Ct. 509, 512-13 (1971)). The exhaustion requirement is not satisfied if the prisoner presents new legal theories or factual claims in his federal habeas petition. Id. (citing Anderson v. Harless, 459 U.S. 4, 6-7, 103 S.Ct. 276, 277-78 (1982)).
According to the Fifth Circuit, and as urged by Respondent, a distinct but related limit on the scope of federal habeas review is the doctrine of procedural default. See Nobles, 127 F.3d at 420. A procedural default can occur when a petitioner 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." Id. (quoting Coleman v. Thompson, 501 U.S. 722, 735, 111 S.Ct. 2546, 2557 n. 1 (1991)).
Since 1994, the Texas Court of Criminal Appeals has applied a strict abuse-of-the-writ doctrine, tempered only by an exception for cause. See Barrientes v. Johnson, 221 F.3d 741,758-59 (5th Cir.), cert. denied, 121 S.Ct. 902 (2001) (citing Ex parte Barber, 879 S.W.2d 889,891 n. 1 (Tex.Crim.App. 1994) (en banc) (the court announced that it would as a "rule" dismiss as abuse of the writ "an applicant for a subsequent writ of habeas corpus rais[ing] issues that existed at the time of his first writ.")). Art. 11.07 Section 4 would prohibit Elder from filing a successive state habeas application, unless the application alleges and establishes that the grounds asserted therein were not and could not have been raised in his first habeas application. See Ex parte Barber, 879 S.W.2d at 891. After reviewing both Elder's originally-filed as well as his amended article 11.07 applications, it is clear that the only allegation he presented to the Texas state courts was 1 above. Elder's other claim, i.e., 2 above, occurred prior to the conclusion of his criminal trial and was known to him. Therefore, he cannot satisfy art. 11.07 § 4(a)(l) by establishing that "the factual or legal basis for [such claims] were unavailable to him when he filed his art. 11.07 application" on January 17, 2001. See Fearance v. Scott, 56 F.3d 633, 642 (5th Cir. 1995), cert. denied, 515 U.S. 1153, 115 S.Ct. 2603 (1995). Accordingly, the court finds that Elder's second ground for relief — that he was not provided with notice, prior to May 11, 2000, that on that date he would be "reviewed" for mandatory supervision release — fails to state a cognizable claim.
Barrientes involved a capital murder conviction. Collateral review of a death penalty case is governed by the provisions of art. 11.071 TEX. CODE CRIM. PRO. ANN., which includes an "abuse-of-the-writ" provision, i.e. Section 5. Collateral review in a non-capital case is governed by art. 11.07, which also contains an abuse-of-the-writ provision, i.e. Section 4, which is substantially identical. The Fifth Circuit has noted that in his concurring opinion in Ex Parte Davis, former Presiding Judge McCormick, joined by Judges White, Meyers, and Keller, expressed the opinion that "[t]he successive writ provisions of Article 11.071, Section 5(a), for the most part are merely a legislative codification of the judicially created `abuse of the writ' doctrine." Barrientes v. Johnson, 221 F.3d at 758-59 (quoting Ex parte Davis, 947 S.W.2d at 226 (McCormick, J., concurring)).
In his first ground for relief, Elder alleges that his federal and state constitutional rights have been contravened because the Texas Board of Pardons and Paroles and the TDCJ-ID reneged on an oral agreement whereby Elder would either be paroled or released under mandatory supervision after successfully completing a therapeutic community substance abuse treatment program. Alternatively, Petitioner, relying on Texas Government Code section 508.147(a) , asserts that he should be released from confinement because his flat time served plus his good conduct time equals five years, the term to which he was sentenced. Although Elder's instant petition lacks specificity with respect to the constitutional basis for his claim, it is assumed that Petitioner's assertion is that his federal due process and equal protection rights, guaranteed under the 5th and 14th Amendments, as well as his rights under Article I Section 19 of the Texas constitution have been violated.
The therapeutic community substance abuse treatment program which Petitioner participated in, and completed, was, apparently, conducted under the auspices of Texas Government Code § 501.0931. Section 501.093l(c), entitled "In-Prison Therapeutic Communities," provides that:
The program must consist of a treatment program of indeterminate length, not to exceed 12 months. The institutional division shall make a referral of an inmate to a program based on the severity of the substance abuse problem, eligibility of the inmate, and the availability of treatment space. An inmate who has not more than 12 months remaining in the inmate's sentence before the earliest date the inmate is eligible for parole is eligible for the program.
Section 508.147(a), entitled "Release to Mandatory Supervision," provides that:
(a) Except as provided by Section 508.149, a parole panel shall order the release of an inmate who is not on parole to mandatory supervision when the actual calendar time the inmate has served plus any accrued good conduct time equals the term to which the inmate was sentenced.
In response, the Respondent asserts that Petitioner's claim is time-barred as the same was brought outside of the AEDPA's one-year statute of limitations. Specifically, the Respondent contends that Petitioner's art. 11.07 application, which was filed on July 8, 2002, was untimely to the extent that he knew on October 17, 2000, the date on which he completed the therapeutic community treatment program, at the earliest, or on March 1, 2001, the date on which he was denied parole for a second time, at the latest, that he was not going to be paroled despite having successfully completed the drug treatment program. A review of the facts detailed above discloses that the Respondent has erroneously characterized Petitioner's July 8, 2002 art. 11.07 application as being separate and distinct from his prior filed January 17, 2001 art. 11.07 application (i.e., a successive application). However, not only did Petitioner clearly label his July 8, 2002 filing as "Amended," but the same was filed with the trial court prior to the rendering of its findings and conclusions. Additionally, the same was included in Elder's state court records, which were forwarded to the Court of Criminal Appeals. As such, the July 8, 2001 filing was also before the Court of Criminal Appeals when it rendered its decision to deny the same. Accordingly, to the extent that Petitioner's July 8, 2001 filing was an amendment to his prior January 17, 2000 filing, the court finds that Petitioner's July 8, 2001 filing was timely. The court now turns to the merits of Elder's claim.
The threshold question is whether Elder is entitled, as a matter of right, to be released on either parole or mandatory supervision. With respect to parole, the court observes that the federal constitution neither requires states to maintain a parole system nor creates a right to parole release. See Greenholtz v. Inmates of Nebraska Penal Correctional Complex, 442 U.S. 1, 99 S.Ct. 2100, (1979). In Creel v. Keene, 928 F.2d 707 (5th Cir. 1991), cert. denied, 501 U.S. 1210 (1991), the Court of Appeals for the Fifth Circuit found that the Texas parole statute probably did not create a liberty interest in parole, but that if it did any such interest was eviscerated by subsequent amendments thereto. Id. at 711,712. Further, following Creel, the Fifth Circuit has consistently held that Texas inmates have no constitutionally protected right to parole, because the relevant Texas statutes do not create an expectation of release that would implicate due process considerations. Orellana v. Kyle, 65 F.3d 29 (5th Cir. 1995), cert. denied, 516 U S. 1059 (1996) (citing Creel v. Keene, 928 F.2d at 712); Allison v. Kyle, 66 F.3d 71, 74 (5th Cir. 1995). Furthermore, the court has held that release on parole is entirely speculative. Madison v. Parker, 104 F.3d 765, 768 (5th Cir. 1997). Accordingly, it is clear that Elder has no constitutionally protected right to be released on parole. As such, he is not entitled to relief on his claim, insofar as the same relates to parole release.
With respect to Elder's claim that he was entitled to release on mandatory supervision, the court notes that Elder was convicted of a crime which occurred on or about April 17, 1998. As such, the court looks to Texas state law, at that time, related to mandatory supervision. Texas Government Code section 508.149(6), in force in 1998, specifically precluded prisoners who had "been previously convicted of first degree felony or second degree felony under [§] 22.02 [Texas] Penal Code [(aggravated assault)]" from being released into mandatory supervision. (West 1997). The state trial court, prior to entering its findings of fact and conclusions of law, was furnished with a sworn affidavit from Mr. Troy Fox ("Fox"), director of the review and release processing section of the TDCJ-parole division, indicating that Elder was not entitled to mandatory supervision by virtue of his prior conviction for aggravated assault in Cause #f87-77962-kQ. See Appl. at p. 32. The trial court, in turn, found Fox's proffer to be "true, correct[,] and dispositive" of Petitioner's 11.07 application. Id. at 28. Thereafter, the Court of Criminal Appeals expressly based its denial of relief on the trial court's findings. Id. at cover. Accordingly, since Elder does not have a liberty interest in either release on parole or mandatory supervision, his petition fails to present a cognizable constitutional violation.
RECOMMENDATION:
For the foregoing reasons it is recommended that Elder's petition for writ of habeas corpus should be denied.
A copy of this recommendation shall be transmitted to the Petitioner and to counsel for Respondent.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten (10) days after being served with a copy of this recommendation. Pursuant to Douglass v. United Serv. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996)( en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten (10) day period may bar a de novo determination by the district judge of any finding of fact and conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.