Opinion
No. 3:02-CV-1792-L.
August 12, 2004
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b) and an order of the District Court, this case has been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge follow:
Parties
Petitioner Mitchell Douglas Gilbert is an inmate in the custody of the Texas Department of Criminal Justice, Correctional Institutions Division (TDCJ-CID). Respondent is Douglas Dretke, Director of TDCJ-CID.
Factual and Procedural History
On March 3, 1995, Gilbert pled guilty to felony driving while intoxicated, and the trial court sentenced him to five years' confinement. (Resp't Answer at Ex. A.) He was released to mandatory supervision on January 17, 1997. ( Id. at Ex. B.) On March 6, 1998, Gilbert pleaded guilty to felony driving while intoxicated, and the trial court sentenced him to seven years' confinement. ( Id. at Ex. D.) As a result, Gilbert's mandatory supervision was revoked on June 26, 1998. ( Id. at Ex. G.) In March 2001, Gilbert was reviewed for mandatory-supervision release, but was denied release on April 19, 2001. ( Id. at Ex. J.) On February 19, 2002, Gilbert filed a state application for habeas corpus relief, which the Texas Court of Criminal Appeals denied without written order. Ex parte Gilbert, No. 52,172-01 (Tex.Crim.App. May 15, 2002) (not designated for publication). Two months later, he filed an administrative "special review" request with the Board of Pardons and Paroles ("the Board"), which was not considered for procedural reasons. ( Id. at Ex. K.) Gilbert filed his federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Dallas Division, on August 18, 2002. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (per curiam) (holding pro se habeas petition filed when papers delivered to prison authorities for mailing).
Issues
1. He was denied access to the courts in order to challenge the denial of his release to mandatory supervision.
2. His mandatory supervision was denied for unconstitutional reasons, i.e., using boilerplate language; the reasons used will never change; it was denied in retaliation; and it was based on future conduct and his past criminal history.
3. He was denied due process and equal protection because he received no notice that he would have to serve more than 100% of his sentence and because other prisoners similarly situated were released to mandatory supervision.
4. The mandatory supervision statutes are unconstitutionally vague.
5. He was denied due process because he did not receive a fair hearing or notice of the reasons his mandatory supervision was denied; thus, the Board used its power in violation of the law.
In his federal petition and memorandum in support, Gilbert raises myriad arguments that are difficult to fully categorize. Although Dretke divided Gilbert's arguments into nine separate grounds with subsections, Gilbert vigorously disputes this interpretation. (Resp't Answer at 3-4; Pet'r Reply at 2.) Thus, the following list will be construed as a complete listing of Gilbert's complaints.
Exhaustion of State Court Remedies
Dretke argues that most of Gilbert's allegations have not been exhausted and asserts that they have been procedurally defaulted.Exhaustion and Procedural Default
Applicants seeking habeas relief under § 2254 are required to exhaust all claims in state court before requesting federal collateral relief. 28 U.S.C. § 2254(b)(1); Fisher v. Texas, 169 F.3d 295, 302 (5th Cir. 1999). The exhaustion requirement is satisfied when the substance of the federal habeas claim has been fairly presented to the highest state court. Picard v. Connor, 404 U.S. 270, 275-76 (1981); Fisher, 169 F.3d at 302. This requires that the state court be given a fair opportunity to pass on the claim, which in turn requires that the applicant present his claims before the state courts in a procedurally proper manner according to the rules of the state courts. Dupuy v. Butler, 837 F.2d 699, 702 (5th Cir. 1988).
In his state habeas application, Gilbert raised the following claims: (1) all good-conduct time should have been credited to his sentence for mandatory supervision purposes; (2) he was denied notice of his mandatory-supervision hearing; (3) the Board denied him due process by denying him release to mandatory supervision; (4) he was denied access to the courts to challenge his mandatory-supervision denial, which gave the Board unauthorized powers; and (5) the Board has the power to deny mandatory supervision for unconstitutional reasons, e.g., race, religion, past criminal history. (State Habeas R. at 8-9.) Thus, Gilbert did not raise the following claims in his state habeas corpus application, which he attempts to raise in his federal petition: (1) his mandatory supervision was denied based on boilerplate language, reasons that will never change, retaliation, and future conduct, which were unconstitutional reasons; (2) he was denied due process and equal protection because he received no notice that he would have to serve more than 100% of his sentence and because other prisoners similarly situated were released to mandatory supervision; and (3) the mandatory-supervision statutes are unconstitutionally vague. Thus, Gilbert seeks federal habeas relief on factual allegations that were never made in the Texas courts, which renders these claims unexhausted. Finley v. Johnson, 243 F.3d 215, 219 (5th Cir. 2001); see also Perez v. Dretke, No. 3:03-CV-1735-D, 2003 WL 23139441, at *1-2 (N.D. Tex. Dec. 31, 2003) (applying exhaustion requirement to challenge regarding denial of mandatory supervision), adopted, 2004 WL 515597 (N.D. Tex. Feb. 4, 2004).
However, Gilbert cannot return to the Texas courts to cure this deficiency. The Texas abuse-of-the-writ doctrine prohibits a successive habeas petition, absent a showing of cause, if the applicant urges grounds that could have been, but were not, raised in his first habeas petition. Ex parte Barber, 879 S.W.2d 889, 891 n. 1 (Tex.Crim.App. 1994), cert. denied, 513 U.S. 1084 (1995). This doctrine is an adequate state procedural bar for purposes of federal habeas review. Emery v. Johnson, 139 F.3d 191, 195 (5th Cir. 1997), cert. denied, 525 U.S. 969 (1998); Nobles v. Johnson, 127 F.3d 409, 423 (5th Cir. 1997), cert. denied, 523 U.S. 1139 (1998). Accordingly, federal habeas corpus relief is unavailable in the face of a state procedural default unless the petitioner can show either (1) cause for the default and actual prejudice or (2) that the federal court's failure to consider the claim will result in a miscarriage of justice, i.e., that the petitioner is actually innocent of the crime. Sawyer v. Whitley, 505 U.S. 333, 339-40 (1992); Coleman v. Thompson, 501 U.S. 722, 750 (1991); Finley, 243 F.3d at 219-20.
Gilbert has not given any explanation to excuse his default. Indeed, these issues were known or should have been known to Gilbert before he filed his state habeas corpus application. Robison v. Johnson, 151 F.3d 256, 263 (5th Cir. 1998), cert. denied, 526 U.S. 1100 (1999). Accordingly, these claims are unexhausted and procedurally defaulted. 28 U.S.C. § 2254(b)(2).
Standard of Review
Under 28 U.S.C. § 2254(d), 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 also 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 objectively unreasonably to the facts of the case. Williams, 529 U.S. at 407-08; see also Neal v. Puckett, 286 F.3d 230, 236, 244-46 (5th Cir. 2002) (en banc per curiam), cert. denied, 537 U.S. 1104 (2003).
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 at 485. 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. Torres, 943 S.W.2d at 472.
Access to the Courts
Gilbert argues that he was denied access to the courts to challenge the Board's decision to deny him release to mandatory supervision. Specifically, he asserts that because his state habeas application was denied and because the Board's decision is not subject to judicial or administrative review, any attempt to gain relief through the court system would be futile. (Federal Pet. at 7; Mem. in Supp. at 5.) Prisoners generally enjoy a constitutional right of access to the courts. Johnson v. Avery, 393 U.S. 483, 483-85 (1969). This right of access encompasses only "a reasonably adequate opportunity to file nonfrivolous legal claims challenging their convictions or conditions of confinement." Lewis v. Casey, 518 U.S. 343, 356 (1996). Merely because the Court of Criminal Appeals denied Gilbert's state habeas application does not equate to a complete denial of access to the courts. Indeed, the state courts' denial of the application was an adjudication on the merits of Gilbert's claims. Torres, 943 S.W.2d at 472. Further, even though the Board's decision to deny mandatory supervision parole is within its sound discretion, complaints regarding the denial of constitutional or statutory rights in consideration of parole may be raised by way of writ of habeas corpus under article 11.07. See Ex parte Geiken, 28 S.W.3d 553, 556-57 (Tex.Crim.App. 2000) (addressing reviewability of the Board's decision to deny mandatory supervision in light of TEX. GOV'T CODE ANN. § 508.149(d) (Vernon Supp. 2004-05)). Gilbert has not been denied constitutional access to the courts.Reasons for Denial
Gilbert argues that the Board unconstitutionally considered his past criminal history in denying him mandatory supervision. (Mem. in Supp. at 10, 17, 22.) There is no federal constitutional right to early release on parole. Orellana v. Kyle, 65 F.3d 29, 31 (5th Cir. 1995) (per curiam), cert. denied, 516 U.S. 1059 (1996); Williams v. Briscoe, 641 F.2d 274, 277 (5th Cir. Unit A Mar. 1981), cert. denied, 454 U.S. 854 (1981). The absence of a liberty interest forecloses any complaint about the procedural devices attendant to the parole process. Orellana, 65 F.3d at 32. Accordingly, Gilbert cannot state a claim for a due-process violation based upon the Board's procedures. Johnson v. Rodriguez, 110 F.3d 299, 305 (5th Cir.), cert. denied, 522 U.S. 995 (1997). Further, this is a conclusory and unsupported allegation that cannot raise a constitutional issue and result in habeas corpus relief. Ross v. Estelle, 694 F.2d 1008, 1011-12 (5th Cir. 1983) (per curiam).
Notice and Due Process
Finally, Gilbert asserts that his due-process rights were violated when he did not receive a fair hearing or notice of the reasons his mandatory supervision was denied; thus, the Board used its power in violation of the law. (Federal Pet. at 7; Mem. in Supp. at 6, 15-19, 22.) The record reflects that Gilbert received notice of his review, had an opportunity to be heard before the review, and received a written explanation of the reasons for the denial of his release. (Resp't Answer at Ex. J.) This is all due process requires. Geiken, 28 S.W.3d at 560.
Summary
Gilbert is lawfully restrained because he has failed to prove that he has been denied a constitutionally protected interest. Accordingly, the state courts' determination that Gilbert 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.
Recommendation
This Court recommends that the petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 be DENIED.