Opinion
2:98-CV-0077
February 26, 2001
REPORT AND RECOMMENDATION TO DENY PETITION FOR A WRIT OF HABEAS CORPUS
Petitioner KEVIN LEE GARRISON has filed with this Court a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254, challenging his parole revocation. For the reasons hereinafter expressed, the Magistrate Judge recommends petitioner's application be DENIED.
I. PROCEDURAL BACKGROUND
On September 14, 1981, petitioner was charged by information in Randall County, Texas with committing the offense of voluntary manslaughter, to wit:
[O]n or about the 28th day of March, A.D. 1981, and before the making and filing of this information, in the County of Randall and the State of Texas, one KEVIN LEE GARRISON did then and there while under the immediate influence of sudden passion arising from an adequate cause, and intending to cause serious bodily injury to an individual, namely: Tricia Marie Crump, intentionally and knowingly commit an act clearly dangerous to human life, to-wit: striking the head and body of the said Tricia Marie Crump, thereby causing death of an individual, namely: Tricia Marie Crump . . .Ex parte Garrison, App. No. 31-065-01 at 39. On September 15, 1981, pursuant to a plea agreement, petitioner pled guilty as charged. Ex parte Garrison, App. No. 31-065-01, after remand at 22. Punishment was assessed at Twenty (20) years imprisonment in the Texas Department of Corrections. Id at 23. Petitioner did not directly appeal the conviction and sentence. Id.
Texas Department of Corrections has since been renamed the Texas Department of Criminal Justice, Institutional Division (TDCJ-ID) and will hereinafter be referred to as such.
On September 19, 1987, petitioner was released on parole. Ex parte Garrison, App. No. 31-065-01, after remand at 23. On April 22, 1992, the State of Washington agreed to supervise petitioner pursuant to an Interstate Compact. Id. Thereafter, the State of Washington informed the State of Texas that petitioner's whereabouts were unknown and the State of Texas issued a pre-revocation warrant on January 27, 1994. Id. On July 22, 1995, petitioner was arrested in Amarillo, Texas on the warrant. Id. Petitioner was interviewed by Liz Marshall, a parole division employee, on July 31, 1995. Ex parte Garrison, App. No. 31-065-01, at 14. On August 17, 1995, petitioner had a pre-revocation hearing and on September 26, 1995, petitioner met again with Liz Marshall and waived his revocation hearing. Id at 34, 36. Petitioner's parole was revoked on October 20, 1995. Ex parte Garrison, App. No. 31-065-01, after remand at 23.
GARRISON filed two state writs of habeas corpus. The first application was filed April 8, 1996. Ex parte Garrison, App. No. 31-065-01 at 1. It was remanded to the trial court on June 19, 1996 and denied without written order on the findings of the trial court on November 26, 1997. Id., after remand at 1, cover. Petitioner filed his second application February 10, 1997, which was denied without written order on May 28, 1997. Ex parte Garrison, Appl. No. 31,065-02 at 1, cover.
On March 5, 1998, petitioner filed with this Court, the instant federal petition for a writ of habeas corpus. On May 14, 1998, respondent GARY L. JOHNSON filed an answer. On May 26, 1998, petitioner filed a reply brief and on February 16, 1999, petitioner filed a supplement to the record with brief in support.
II. PETITIONER'S ALLEGATIONS
In support of his contention that he is being held in violation of the Constitution and laws of the United States, petitioner appears to present the following grounds:
1. There was no evidence, affidavits or statements presented during the revocation process to support the issuance of a "blue warrant" or to justify parole revocation.
2. The parole division erred procedurally during the revocation process in that it did not timely notify petitioner of his pre-revocation hearing and the Board of Pardons and Paroles declined to follow the recommendation of the hearing officer.
3. The trial court failed to obtain affidavits as ordered by the Texas Court of Criminal Appeals, and therefore there was no evidence to support the trial court's findings of fact and conclusions of law. Moreover, petitioner was denied an evidentiary hearing.
4. Petitioner was denied his right to legal representation during the revocation process.
5. The TDCJ parole division considered erroneous and unsubstantiated evidence in making it's decision to revoke petitioner's parole. Specifically, they considered alleged violations listed in a previous blue warrant.
6. The TDCJ parole division lacked jurisdiction and legal authority to issue an arrest warrant or to revoke petitioner's parole.
III. EXHAUSTION OF STATE COURT REMEDIES
This federal petition was filed after the April 24, 1996 effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Consequently, the provisions of the AEDPA apply to this case. As relevant here, the AEDPA provides:
(b)(1) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted unless it appears that —
(A) the applicant has exhausted the remedies available in the courts of the State; or
(B)(i) there is an absence of available State corrective process; or
(ii) circumstances exist that render such process ineffective to protect the rights of the applicant.
(2) An application for a writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State.
(3) . . .
(c) An applicant shall not be deemed to have exhausted the remedies available in the courts of the State, within the meaning of this section, if he has the right under the law of the State to raise, by any available procedure, the question presented.28 U.S.C. § 2254. The exhaustion doctrine set forth in section 2254 requires that the state courts be given the initial opportunity to address and, if necessary, correct alleged deprivations of federal constitutional rights in state cases. Castille v. Peoples, 489 U.S. 346, 349, 109 S.Ct. 1056 (1989).
To have exhausted his state remedies, a habeas petitioner must have fairly presented the substance of his federal constitutional claims to the state courts. Nobles v. Johnson, 127 F.3d 409, 420 (5th Cir. 1997), cert. denied, 523 U.S. 1139, 118 S.Ct. 1845, 140 L.Ed.2d 1094 (1998). This requires that any federal constitutional claim presented to the state courts be supported by the same factual allegations and legal theories upon which the petitioner bases his federal claims. Picard v. Connor, 404 U.S. 270, 276-77, 92 S.Ct. 509, 30 L.Ed.2d 438 (1971). Further, in order to satisfy the federal exhaustion requirement, petitioner must fairly present to the highest state court each constitutional claim he wishes to assert in his federal habeas petition. Skelton v. Whitley, 950 F.2d 1037, 1041 (5th Cir.), cert. denied sub nom. Skelton v. Smith, 506 U.S. 833, 113 S.Ct. 102, 121 L.Ed.2d 61 (1992); Richardson v. Procunier, 762 F.2d 429, 431 (5th Cir. 1985); Carter v. Estelle, 677 F.2d 427, 443 (5th Cir. 1982), cert. denied, 460 U.S. 1056, 103 S.Ct. 1508, 75 L.Ed.2d 937 (1983). In the state of Texas, the Court of Criminal Appeals in Austin, Texas is the highest court which has jurisdiction to review a petitioner's confinement. Tex. Code Crim. Proc. Ann. art. 44.45 (Vernon 1999). Claims may be presented to that court through an application for a writ of habeas corpus, see Tex. Code Crim. Proc. Ann. art. 11.01 et seq. (Vernon 1999), or on direct appeal by a petition for discretionary review.
In the instant case, petitioner disagrees with respondent's position that some of his claims have not been presented to the highest state court. Respondent requests dismissal of several claims as procedurally barred and alternatively requests dismissal of the entire petition because it contains both exhausted and unexhausted claims.
Respondent addresses twelve claims he concludes petitioner to have exhausted. Petitioner numbers his claims as one through six and the undersigned Magistrate Judge for clarification, will utilize the same numbering system as petitioner.
The undersigned Magistrate Judge has reviewed petitioner's state court records and it appears petitioner has presented, to the highest court of the State of Texas, the substance of two of the six claims he now presents to this federal court, i.e. claims 1 and 2. Petitioner did not present claim number 3 which complains about the state habeas proceedings. Petitioner did not present to the highest court, claim number 5 regarding whether the TDCJ considered erroneous and unsubstantiated information in its decision to revoke or claim number 6 that the TDCJ parole division lacked jurisdiction to revoke petitioner's parole. Additionally, while petitioner argues he did present claim number 4, that he was denied counsel during the revocation process, that claim was submitted for the first time in a Motion to File Amended Application for Writ of Habeas Corpus for which the record does not contain an order granting the motion. Petitioner would be procedurally barred from presenting these issues to the Texas Court of Criminal Appeals unless he could show adequate cause or actual innocence. Tex. Code Crim. P. Art. 11.07(4) (Vernon Supp. 1996). If procedurally barred in state court, petitioner would also be barred at the federal habeas level. Nobles v. Johnson, 127 F.3d 409, 422 (5th Cir.), cert. denied 523 U.S. 1139, 118 S.Ct. 1845, 140 L.Ed.2d 1094, (1998).
Therefore, it is the opinion of the Magistrate Judge that while petitioner has not exhausted several of his issues in state court, this cause should not be dismissed for failure to exhaust, but instead, be decided on the merits, except as to the three (3) contested or unexhausted claims, which the undersigned finds to be procedurally barred.
IV. STANDARD OF REVIEW
This case was filed March 5, 1998, subsequent to the April 24, 1996 effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Therefore, the standards of review set forth in the AEDPA apply to this case. Lindh v. Murphy, 117 S.Ct. 2059, 2063 (1997); Williams v. Cain, 125 F.3d 269, 274 (5th Cir. 1997). Consequently, petitioner may not obtain relief in this Court with respect to any claim adjudicated on the merits in state court proceedings unless the adjudication of the claim:
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; 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 proceeding.28 U.S.C. § 2254(d). Further, all factual determinations made by a state court shall be presumed to be correct and such presumption can only be rebutted by clear and convincing evidence presented by petitioner. 28 U.S.C. § 2254(e).
Here, the state courts, on collateral review, heard and adjudicated, on the merits, two of the same claims that are before this Court. More specifically, the Texas Court of Criminal Appeals, denied petitioner's first application for state habeas relief, without written order, on two of the same issues presented herein, i.e. claims 1 and 2. Ex parte Garrison, No. 231,065-01, after remand at cover. The rulings of the Texas Court of Criminal Appeals constitute adjudications of petitioner's claims on the merits. Bledsue v. Johnson, 188 F.3d 250, 257 (5th Cir. 1999); Ex parte Torres, 943 S.W.2d 469, 472 (Tex.Crim.App. 1997). Because two of petitioner's claims have been adjudicated in the state court system, petitioner is required to demonstrate circumstances permitting federal review and relief. This petitioner has not done.
V. MERITS OF PETITIONER'S ALLEGATIONS
Federal habeas corpus will not lie unless an error was so gross or a trial so fundamentally unfair that the petitioner's constitutional rights were violated. In determining whether an error was so extreme or a trial so fundamentally unfair, this Court must review the putative error at issue, looking at the totality of the circumstances surrounding the error for a violation of the petitioner's constitutional rights. Based upon a review of the pleadings in this case, including the state court records, petitioner's federal application for a writ of habeas corpus, respondent's answer to the application, and petitioner's supplementation, it is the opinion of the Magistrate Judge that petitioner has failed to show he is being unlawfully detained in violation of the Constitution and laws of the United States.
A. Grounds 1 and 2 Previously Adjudicated on the Merits
The first and second claims presented to this Court were raised by petitioner in his first state application for habeas relief and, thus, such claims have previously been adjudicated on the merits. The claims raised in Ex parte Garrison, 31,065-01, that there was insufficient evidence to support the issuance of a revocation warrant, and that no affidavits, statements or evidence were ever produced during the revocation process to support the revocation of his parole (claim number 1), and that the TDCJ parole division erred procedurally in revoking his parole (claim number 2), are the same claims raised in this petition. The Texas Court of Criminal Appeals denied petitioner's first state petition after remand, without written order on November 26, 1997. This denial constitutes an adjudication on the merits. Bledsue v. Johnson, 188 F.3d 250, 257 (5th Cir. 1999). This court cannot grant federal habeas relief unless it determines under 28 U.S.C. § 2254(d) that the state court unreasonably applied clearly established Federal law to the facts of the case. Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000).
In this federal petition, GARRISON claims in ground one that there was insufficient evidence to support the finding of a parole violation to the degree that a warrant could be issued and his parole revoked. Petitioner however, waived this argument when he waived his final revocation hearing. After the pre-revocation hearing, petitioner met with a parole division employee and signed a form waiving the revocation hearing. Petitioner's signature and waiver relieved the state of its burden to present evidence supporting the issuance of the warrant or the revocation of parole. Petitioner further argues, in ground two, that he was tricked into signing the revocation form. Specifically, petitioner avers that a parole division employee made him a false promise to induce his signature on the waiver.
Petitioner alleges parole division employee Liz Marshall told him that she could find nothing to support the revocation, that the hearing officer would recommend release, and that the hearing was a waste of time, so if he signed the waiver, he would go home to his kids faster.
It is well established that a person subject to parole revocation is entitled to due process, including a revocation hearing. Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972). Due process in this context, entitles the defendant whose parole is being revoked to:
(1) written notice of the violations charged, (2) disclosure to the parolee of the evidence against him, (3) the opportunity to be heard in person and to present witnesses and documentary evidence, (4) the right to confront and cross-examine adverse witnesses unless the hearing officer finds good cause for disallowing such confrontation, (5) a neutral and detached hearing body, and (6) a written statement by the fact-finders identifying the evidence and reasons supporting the revocation decision.Williams v. Johnson, 171 F.3d 300, 304 (5th Cir.), cert. denied 120 S.Ct. 197, 145 L.Ed.2d 165, (1999). However, the right to due process i.e. a hearing, may be knowingly waived. FRCP Rule 32.1(a)(1) (West 2000). GARRISON, in the case at bar, signed a form waiving his right to a revocation hearing. Ex parte Garrison, 31, 065-01, after remand at 61. Petitioner does not deny he waived the hearing, but alleges he did so based upon misrepresentations made by a parole division employee.
In addition, parolee is entitled to notice of the right to be represented by counsel.
The undersigned acknowledges the Federal Rules of Criminal Procedure are not applicable to state parole proceedings, but cites them herein as guidance as to what the federal procedure evidences is constitutional.
The 251st Judicial District Court issued findings of fact and conclusions of law in which it determined that GARRISON's waiver of a revocation hearing was not induced by a promise that his parole would be reinstated if he executed the waiver. Ex parte Garrison, 31,065-01, after remand at 29. The Texas Court of Criminal Appeals subsequently denied habeas relief and in so doing, adopted the district court's findings of fact and conclusions of law, implying that they did not find petitioner's allegation to be credible. Ex parte Garrison, 31,065-01, after remand, at cover.
This Court notes that the Texas Court of Criminal Appeals originally ordered the District Court to obtain the affidavit of parole division employee Liz Marshall which it failed to do. The Texas Court of Criminal Appeals subsequently arrived at their decision without the benefit of this affidavit, with no explanation as to whether that court approved, disapproved or recognized the failure of the trial court to obtain an affidavit from Marshall.
Additionally, under ground two, petitioner argues the TDCJ parole division erred procedurally in processing him through the parole revocation process, specifically arguing that he was not provided ample notification of the date and time of his pre-revocation hearing, that he was denied a revocation hearing because he was tricked into waiving it, and that his parole was revoked even though the hearing officer recommended otherwise. As stated supra, petitioner's argument regarding waiver of his revocation hearing and the allegation of inducement are without merit. Petitioner's argument that he was not provided notice of his pre-revocation hearing in a timely manner and that the Board revoked his parole against the recommendation of the hearing officer are also without merit.
In arguing procedural error by the parole board, GARRISON cites the Texas Administrative Code, claiming it was violated. Petitioner is correct that under Morrissey, 408 U.S. at 486-87, 92 S.Ct. at 2603, the Court established that certain procedural requirements be followed for the preliminary hearing including that, "[T]he parolee should be given notice that the hearing will take place and that its purpose is to determine whether there is probable cause to believe he has committed a parole violation. The notice should state what parole violations have been alleged." See also U.S. v. Cartwright, 696 F.2d 344 (5th Cir. 1983); Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973). Petitioner was given notice of the alleged violation on July 31, 1995. Ex parte Garrison, 31,065-01, after remand at 48. Petitioner argues however that he did not timely receive notice of the date and time of the hearing in violation of the Texas Administrative Code. He further argues that the Board was obligated to follow the recommendation of the hearing officer to continue supervision and that failure to do so violated the Texas Administrative Code. Fatal to petitioner's argument however, is the fact that federal habeas corpus relief is not available to correct errors of state law, whether constitutional, statutory, or procedural. Pemberton v. Collins, 991 F.2d 1218, 1223 (5th Cir.), cert. denied 510 U.S. 1025, 114 S.Ct. 637, 126 L.Ed.2d 596, (1993).
Respondent has failed to address this specific issue and has not rebutted petitioner's contention regarding the Texas Administrative Code.
It appears from petitioner's citation to the statute that the recommendation of the hearing officer which the Board was obligated to follow was the one made at the revocation hearing, not the preliminary hearing. Thus the statute would not apply to petitioner as he waived that hearing. Again, the Court notes respondent has failed to address the issue.
Although GARRISON has made specific allegations, he merely complains of violations of state law not rising to federal constitutional errors, which do not entitle him to federal habeas relief herein. Further, he has not shown how these alleged violations prejudiced him. For these reasons, the undersigned Magistrate Judge finds claims 1 and 2 to be without merit.
B. Ground 3 Does Not State a Claim Meriting Federal Relief
In his third claim, petitioner alleges the state habeas court erred when it issued findings of fact and conclusions of law without any supporting evidence. GARRISON essentially claims the trial court had no evidence upon which to base the findings of fact and conclusions of law because the state failed to produce certain affidavits as ordered and that in unsworn statements presented, the facts were misrepresented and petitioner was denied the right to respond. Petitioner GARRISON also contends the trial court did not file the findings of fact and conclusions of law in a timely manner with the Court of Criminal Appeals.
As stated in Trevino v. Johnson, 168 F.3d 173, 180 (5th Cir.), cert. denied 527 U.S. 1056, 120 S.Ct. 22, 144 L.Ed.2d 825, (1999), "Our circuit precedent makes clear that [petitioner's] claim fails because infirmities in state habeas proceedings do not constitute grounds for relief in federal court." (internal quotation marks omitted) citing Hallmark v. Johnson, 118 F.3d 1073, 1080 (5th Cir.), cert. denied 522 U.S. 1003, 118 S.Ct. 576, 139 L.Ed.2d 415 (1997); Nichols v. Scott, 69 F.3d 1255, 1275 (5th Cir.) cert. denied 518 U.S. 1022, 116 S.Ct. 2559, 135 L.Ed.2d 1076, (1996); Duff-Smith v. Collins, 973 F.2d 1175, 1182 (5th Cir.), cert. denied 507 U.S. 1056, 113 S.Ct. 1958, 123 L.Ed.2d 661 (1993); Millard v. Lynaugh, 810 F.2d 1403, 1410 (5th Cir.), cert. denied 484 U.S. 838, 108 S.Ct. 122, 98 L.Ed.2d 81 (1987); and Vail v. Procunier, 747 F.2d 277, 277 (5th Cir. 1984).
Petitioner's entire ground three relates to the process afforded him in his state habeas proceeding and that it was flawed. This is not a ground for federal relief and it is the opinion of the undersigned Magistrate Judge that petitioner's ground three should be denied.
Petitioner argues in claim number 3, the state court erred in the manner of adjudication, i.e issuing finding of fact and conclusions of law without supporting evidence. As such, the claim is not cognizable herein because it relates to state process. Petitioner could have argued the state court adjudication was unfair and thus unreliable. He does not appear to argue this point. Even if he had argued this point under grounds 1 or 2, he would not prevail, since, the state habeas records contain the affidavit of Jerome Davidson in lieu of Liz Marshall.
When the independent and adequate state ground supporting a habeas petitioner's custody is a state procedural default, an additional concern comes into play. This Court has long held that a state prisoner's federal habeas petition should be dismissed if the prisoner has not exhausted available state remedies as to any of his federal claims.
As explained by Justice O'Connor in her concurring opinion of Harris v. Reed, 489 U.S. 255, 268-69, 109 S.Ct. 1038, 1046-47, 103 L.Ed.2d 308 (1989),
In 28 U.S.C. § 2254(b), Congress has provided that a writ of habeas corpus "shall not be granted unless it appears that the applicant has exhausted the remedies available in the courts of the State, or that there is either an absence of available State corrective processes or the existence of circumstances rendering such process ineffective to protect the rights of the prisoner." The exhaustion requirement is not satisfied if the habeas petitioner "has the right under the law of the State to raise, by any available procedure, the question presented." § 2254(c). Thus, in determining whether a remedy for a particular constitutional claim is "available," the federal courts are authorized, indeed required, to assess the likelihood that a state court will accord the habeas petitioner a hearing on the merits of his claim. . . . Moreover, dismissing such petitions for failure to exhaust state court remedies would often result in a game of judicial ping-pong between the state and federal courts, as the state prisoner returned to state court only to have the state procedural bar invoked against him.
As noted by respondent, GARRISON has presented to this Court claims which he has failed to present to the state courts. Further, even if GARRISON were to present these unexhausted claims to the state courts, they would be dismissed pursuant to the abuse of the writ doctrine. TEX. CODE CRIM. PROC. ANN. art. 11.07 § 4 (West 1999). Therefore, it would be futile to require petitioner to take his claims back to state court, where they would be procedurally barred, and consequently dismissed, and therefore such claims are likewise procedurally barred in this Court. For these reasons, petitioner's claims 4 through 6 should be denied as procedurally barred.
VI. RECOMMENDATION
It is the RECOMMENDATION of the United States Magistrate Judge to the United States District Judge that the Petition for a Writ of Habeas Corpus filed by petitioner KEVIN LEE GARRISON be DENIED.
VII. INSTRUCTIONS FOR SERVICE and NOTICE OF RIGHT TO OBJECT
The United States District Clerk is directed to send a file-marked copy of this Report and Recommendation to petitioner's counsel by certified mail, return receipt requested, and to counsel for respondent by regular U.S. Mail or other agreed means.
Any party may object to this Report and Recommendation within fourteen (14) days from its date of filing. See 28 U.S.C. § 636(b); Fed.R.Civ.P. 5(b), 6(e). Any such objections shall be in the form of a written pleading entitled "Objections to the Report and Recommendation," and shall specifically identify the portions of the findings, conclusions, or recommendation to which objection is made, and set out fully the basis for each objection. Objecting parties shall file the written objections with the United States District Clerk and serve a copy of such objections on the Magistrate Judge and all other parties. A party's failure to timely file written objections to the proposed findings, conclusions, and recommendation contained in this report shall bar an aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions set forth in this report and accepted by the district court. Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).
IT IS SO RECOMMENDED.