Opinion
Civil Action No. 4:01-CV-819-Y
April 16, 2002
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER
This cause of action was referred to the United States Magistrate Judge under the provisions of Title 28 of the United States Code, § 636(b), as implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusions, and Recommendation of the United States Magistrate Judge are as follows:
I. FINDINGS AND CONCLUSIONS A. NATURE OF THE CASE
This is a petition for writ of habeas corpus by a state prisoner under Title 28 of the United States Code, § 2254.
B. PARTIES
Petitioner James Carl Hollis TDCJ-ID #524375, is in custody of the Texas Department of Criminal Justice, Institutional Division, and is presently incarcerated in the Ferguson Unit in Midway, Texas.
Respondent Janie Cockrell is the Director of the Texas Department of Criminal Justice, Institutional Division.
C. FACTUAL AND PROCEDURAL HISTORY
Hollis was indicted for four counts of burglary of a habitation committed between November 14 and November 30, 1988. On February 23, 1989, Hollis pleaded guilty to all four counts. On the first three counts, the trial court sentenced him to ten years confinement, probated for 10 years. (6 State Habeas R. at 12; 7 State Habeas R. at 12; 8 State Habeas R. at 12.) On the fourth count, the trial court deferred adjudicating Hollis's guilt and placed him on probation for 10 years. (9 State Habeas R. at 12.) On June 16, 1959, Hollis was convicted of another burglary-of-a-habitation offense and was sentenced to 15 years' confinement. (10 State Habeas R. at 12.) As a result, the trial court revoked his three probations and sentenced him to 10 years' confinement for each offense. (6 State Habeas R. at 16; 7 State Habeas R. at 16; 8 State Habeas R. at 16.) The trial court also adjudicated Hollis's guilt in his prior deferred-adjudication offense, revoked his probation, and sentenced him to 15 years' confinement. (9 State Habeas R. at 17.) All sentences are running concurrently. (10 State Habeas R. at 12.)
On August 13, 1999, Hollis was released to mandatory supervision. (Resp't Answer at Ex. A.) Hollis subsequently violated the conditions of his release; however, after a revocation hearing on November 9, 1999, the Parole Board decided to continue supervision and transfer Hollis to an Intermediate Sanction Facility. ( Id. at Ex. B.) On March 8, 2001, Hollis was arrested for driving while intoxicated. ( Id. at Ex. C.) He remained in jail until June 5, 2001, when he was convicted and sentenced to 90 days' confinement. ( Id. at Ex. E pp. 5, 11.) With credit for time served, Hollis completed his sentence on June 7, 2001. ( Id.)
On June 19, 2001, Hollis received written notice that he was accused of violating a condition of his release — that he follow the law — and was advised of his rights in the revocation process. ( Id. at Ex. E pp. 8-9.) Hollis requested a revocation hearing. ( Id. at Ex. E p. 10) At the July 11, 2001 hearing, Hollis, was represented by appointed counsel who called two witnesses to testify that Hollis had not been drinking the day he was suspected of driving while intoxicated. ( Id. at Ex. E p. 4, 6.) The State introduced evidence of Hollis's DWI conviction, which Hollis discounted by pointing out that he was currently appealing the conviction. ( Id. at Ex. E pp. 5-6.) After the hearing officer determined that Hollis had violated the terms of his release, Hollis testified at the adjustment phase that he was abiding by terms of his release, was gainfully employed, and would abide by any other rule or condition imposed by the Parole Board. ( Id. at Ex. E p. 6.) The hearing officer recommended that Hollis's mandatory supervision be revoked. ( Id. at Ex. E p. 7.)
According to Hollis, he then filed a motion to reopen the revocation hearing with the Parole Board on July 16, 2001, which was never ruled on. (Pet'r Br. in Supp. at 4.) The next day, Hollis filed five identical state applications for writ of habeas corpus challenging the 2001 revocation hearing, arguing that (1) the hearing officer knew the hearing was held more than 120 days after his arrest, which violated his due-process rights and the Eighth Amendment and (2) the hearing officer and his parole officer abused their authority to oppress Hollis. On July 25, 2001, the Parole Board revoked Hollis's mandatory supervision. (Resp't Answer at Ex. C.) On September 12, 2001, the Texas Court of Criminal Appeals denied the applications without written order. Ex parte Hollis, Nos. 44, 615-06, -07, -08, -09, -10 (Tex.Crim.App. Sept. 12, 2001) (not designated for publication). Hollis filed the instant federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Fort Worth Division, on October 3, 2001. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (holding pro se habeas petition filed when papers delivered to prison authorities for mailing).
In his first five state habeas applications, which he filed on January 10, 2000, Hollis challenged the November 9, 1999 revocation hearing and his transfer to an Intermediate Sanction Facility. (Resp't Answer at 3 n. 1.) Hollis has additionally filed a federal habeas corpus petition challenging the 1999 hearing, which this court denied. Hollis v. Johnson, No. 4:00-CV-240-E (N.D. Tex. Jan. 11, 2001), appeal dismissed, No. 01-10880 (5th Cir. Aug. 13, 2001). Hollis has also filed a previous federal habeas corpus petition attacking the 2001 revocation hearing. This petition was dismissed without prejudice for failure to exhaust state remedies. Hollis v. Cockrell, No. 1:01-CV-185-C (N.D. Tex. Oct. 4, 2001). These previous federal petitions do not render the instant petition abusive. 28 U.S.C. § 2244(b); Slack v. McDaniel, 529 U.S. 473, 485-86 (2000).
D. ISSUES
Hollis argues that his constitutional rights were violated at his revocation hearing when:
1. his hearing was held more than 120 days after he was arrested, which the hearing officer was aware of when he conducted the hearing,
2. counsel was ineffective,
3. he was not allowed to be heard at the evidentiary phase of the hearing,
4. the hearing officer was not neutral and detached,
5. he was denied the right to a preliminary hearing, which the hearing officer was aware of when he conducted the hearing,
6. the Parole Board did not follow its own guidelines at the hearing,
7. the hearing officer disregarded the fact that his DWI conviction was on appeal and, thus, should not be considered at the hearing, and
8. he was arrested before his DWI conviction was final.
E. RULE 5 STATEMENT
Cockrell argues that Hollis has sufficiently exhausted his state remedies as to all claims presented in this federal petition, excluding claims two through five listed above. She argues that these claims should either be dismissed for failure to exhaust or denied as procedurally defaulted. (Resp't Answer at 7.)
F. DISCUSSION 1. 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, 160 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). Whether exhaustion has been satisfied cannot depend upon whether the state court chooses to ignore in its opinion a federal constitutional claim squarely raised by the applicant. Castille v. Peoples, 489 U.S. 346, 350 (1989) (9-0 decision).
Hollis argues that counsel was ineffective at the revocation hearing (Federal Pet. at 7; Pet'r Br. in Supp. at 7, 9; Pet'r Reply at 20-22), he was not allowed to be heard during the evidentiary phase of the hearing (Federal Pet. at 8; Pet'r Br. in Supp. at 12), the hearing officer was not neutral and detached (Federal Pet. at 8; Pet'r Br. in Supp. at 8-9, 12; Pet'r Reply at 19, 25), and he was denied the right to a preliminary hearing, which the hearing officer was aware of (Federal Pet. at 7-8; Pet'r Br. in Supp. at 14; Pet'r Reply at 23-24). As Cockrell points out, Hollis did not raise these allegations in his state habeas corpus applications. Hollis also argues that internal guidelines were not followed during the hearing (Federal Pet. at 8), the hearing officer erroneously considered evidence of his DWI conviction even though it was on appeal at the time (Pet'r Br. in Supp. at 13), and he was arrested on a revocation warrant before his DWI conviction was final (Pet'r Br. In Supp. at 15-16). Although Cockrell does not argue that these grounds are unexhausted, this court takes notice that Hollis did not raise these arguments in his state habeas corpus applications. See Graham v. Johnson, 94 F.3d 958, 970 (5th Cir. 1996) (stating court may accept or reject State's waiver of exhaustion or may raise exhaustion sua sponte).
Hollis argues that he did exhaust his state remedies because his state claims can be liberally read to include the current, disputed claims and because he raised these grounds in his motion to reopen the revocation hearing. (Pet'r Reply at 6, 8, 10.) However, even a liberal reading of Hollis's state habeas applications cannot justify a finding that the state courts were sufficiently apprised of the factual and legal theories underlying these claims. E.g., Anderson v. Harless, 459 U.S. 4, 6-8 (1982); Wilder v. Cockrell, 274 F.3d 255, 259-60 (5th Cir. 2001). Further, presenting the claims to the Parole Board does not suffice to exhaust state remedies before the state's highest criminal court. Thus, these claims are unexhausted.
However, Hollis 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.
Hollis has not given any explanation to excuse his default. Indeed, any problems with the revocation hearing and counsel's performance were known to Hollis before he filed his state habeas corpus applications. Robison v. Johnson, 151 F.3d 256, 263 (5th Cir. 1998), cert. denied, 526 U.S. 1100 (1999). Thus, these claims are procedurally defaulted.
2. Legal Standard for Granting Habeas Corpus Relief
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 unreasonably to the facts of the case. Williams, 529 U.S. at 407-08.
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. Ex parte Torres, 943 S.W.2d 469, 472 (Tex.Crim.App. 1997).
3. Timeliness of Hearing
Hollis argues that his revocation hearing was unlawful and void because it was held more than 120 days after he was arrested, which the hearing officer knew when he conducted the hearing. (Federal Pet. at 7; Pet'r Br. in Supp. at 10-11; Pet'r Reply at 15-17.) He relies on former article 42.18, section 14(a) of the Code of Criminal Procedure for his assertion that the hearing is void if held later than the 120th day after arrest. However, the law applicable to Hollis's 2001 arrest and revocation hearing provides that the hearing must be held on or before the 60th day after he completed his DWI sentence. TEX. GOV'T CODE ANN. § 508.282(a)(1)(B)(i) (Vernon Supp. 2002). Once Hollis's sentence was completed on June 7, 2001, his hearing was held within 34 days after he had completed his DWI sentence. This is all the statute and due process require. Cf. Beck v. Wilkes, 589 F.2d 901, 903 (5th Cir.) (holding that six-month delay between defendant's arrest and revocation hearing did not violate due process), cert. denied, 444 U.S. 845 (1979).
Act of May 25, 1995, 74th Leg., R.S., ch. 321, § 2.010, art. 42.18, 1995 Tex. Gen. Laws 2774, 2809; amended by Act of May 16, 1997, 75th Leg., R.S., chs. 429, § 2, art. 42.18, 1997 Tex. Gen. Laws 1687, 1687-88 and recodified by Act of May 8, 1997, 75th Leg., R.S., ch. 165, § 12.01, § 508.282, 1997 Tex. Gen. Laws 327, 435; repealed by Act of April 23, 1999, 76th leg., R.S., ch. 62, § 10.39(6), art. 42.18, 1999 Tex. Gen. Laws 127, 334 and amended by Act of April 23, 1999, 76th Leg., R.S., ch. 62, § 10.33, § 508.282, 1999 Tex. Gen. Laws 127, 332-33 (current version at TEX. GOV'T CODE ANN. § 508.282 (Vernon Supp. 2002)).
4. Summary
The revocation hearing did not violate Hollis's constitutional rights. Thus, Hollis is lawfully restrained because he has failed to prove that he has been denied a constitutionally protected interest. Accordingly, the state courts' determination that Hollis 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.
II. RECOMMENDATION
Hollis's petition for writ of habeas corpus should be denied.
III. NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSIONS, AND RECOMMENDATION AND CONSEQUENCES OF FAILURE TO OBJECT
Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation within ten (10) days after the party has been served with a copy of this document. The court is extending the deadline within which to file, not merely place in the mail, specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation until May 6, 2002. Failure to file specific written objections within the specified time shall bar a de novo determination by the district court of any finding of fact or conclusion of law and shall bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any unobjected to, proposed factual findings and legal conclusions accepted by the district court. See Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc op. on reh'g); Carter v. Collins, 918 F.2d 1198 (5th Cir. 1990).
IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until May 6, 2002 to serve and file, not merely place in the mail, written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation. It is further ORDERED that if objections are filed and the opposing party chooses to file a response, the response shall be filed within seven (7) days of the filing date of the objections.
It is further ORDERED that the above-styled and numbered action, previously referred to the United States Magistrate Judge for findings, conclusions, and recommendation, is returned to the docket of the United States District Judge.