Opinion
CIVIL ACTION NO. 1:02-CV-203-C
May 28, 2003
ORDER
The Court has considered the Petition for Writ of Habeas Corpus filed by Petitioner Daniel G. Kohler pursuant to 28 U.S.C. § 2254. Petitioner was incarcerated in the Robertson Unit of the Texas Department of Criminal Justice, Institutional Division at the time he filed his petition.
Respondent has lawful and valid custody of Petitioner pursuant to judgments and sentences of the 3rd District Court of Andersen County, Texas, and the 187th District Court of Bexar County, Texas. Petitioner is not challenging either of his sentences, but is challenging the operation of his sentence. Specifically, he challenges the state laws pertaining to his eligibility for release on parole.
Petitioner states that he filed one state habeas application raising the same issues asserted in his federal habeas petition. The Texas Court of Criminal Appeals denied the application without written order on June 26, 2002.
The Court has reviewed Petitioner's § 2254 petition, and finds that Petitioner's habeas petition should be denied
Texas law does not create a constitutionally-protected liberty interest in parole; rather, it creates nothing more than a hope or mere possibility of early release, Gilbertson v. Texas Board of Pardons and Paroles, 993 F.2d 74, 75 (5th Cir. 1993). See Orellana v. Kyle, 65 F.3d 29, 32 (5th Cir. 1995) (holding that Texas parole laws do not create constitutionally protected liberty interests).
Petitioner claims that changes in the parole laws violated the Ex Post Facto Clause of the United States Constitution. "[T]he focus of the ex post facto inquiry is . . . on whether any such change alters the definition of criminal conduct or increases the penalty by which a crime is punishable." California Dep't of Corrections v. Morales, 514 U.S. 499, 506 n. 3 (1995).
Procedural changes in the parole laws, "even if they work to the disadvantage of a criminal defendant, do not violate the Ex Post Facto Clause." Creel v. Kyle, 42 F.3d 955, 957 (5th Cir. 1995) (quoting Collins v, Youngblood, 497 U.S. 37 (1990)); Allison v, Kyle, 66 F.3d 71 (5th Cir. 1995).
Further "it follows that because [a prisoner] has no liberty interest in obtaining parole in Texas, he cannot complain of the constitutionality of procedural devices attendant to parole decisions." Orellana v. Kyle, 65 F.3d 29, 31 (5th Cir. 1995)
For the reasons stated above, the Court finds that Petitioner's petition for writ of habeas corpus should be denied and this cause dismissed with prejudice.
SO ORDERED.
All relief not expressly granted is denied and any pending motions are denied,
JUDGMENT
For the reasons stated in the Court's Order of even date,It is ORDERED, ADJUDGED, AND DECREED that Petitioner's petition for a writ of habeas corpus is DENIED and DISMISSED with prejudice.