Opinion
3:03-CV-1722-M
February 5, 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 Court, this case has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS: Type of Case: This is a petition for writ of habeas corpus filed by a state inmate pursuant to 28 U.S.C. § 2254.
Parties: Petitioner is currently confined at the Jim Rudd Unit of the Texas Department of Criminal Justice — Correctional Institutions Division (TDCJ-CID) in Dallas, Texas. Respondent is the Director of TDCJ-CID. The magistrate judge issued process in this case.
Statement of Case: On November 18, 1991, Petitioner pled guilty to the felony offenses of possession of marijuana and murder with a deadly weapon in the First Judicial District Court of Tarrant County, Texas, in Cause Nos. 0323383A and 0448088D. Punishment was assessed at four and eighteen years imprisonment respectively.
In this action, Petitioner challenges a parole revocation which occurred on July 30, 2002. (Respondent's Exh. B). Petitioner subsequently filed two state habeas applications pursuant to art. 11.07, Texas Code of Criminal Procedure. The Texas Court of Criminal Appeals dismissed the first application for failure to exhaust administrative remedies under Gov't Code § 501.0081(b), and denied the second application without written order. Ex parte LaFoe, No. 54, 495-01 and -02.
In his federal petition, signed on July 28, 2003, Petitioner challenges the parole revocation proceeding as constitutionally defective. Liberally construed in accordance with his pro se status, the petition claims that the parole revocation violated various constitutional rights, because (1) there was insufficient evidence to find Petitioner guilty of violating the terms of his parole; (2) the revocation was based upon false and perjured testimony; (3) Petitioner was denied compulsory service of defense witnesses at his revocation hearing; (4) Petitioner was denied counsel at the parole revocation hearing; (5) Petitioner was denied due process and double jeopardy protection when the Board forfeited his work-time and good-time credits earned prior to his release on parole, and refused to give him credit for the time spent while on parole.
In response to this court's order to show cause, Respondent filed an answer along with the relevant state court record. Findings and Conclusions: The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), 28 U.S.C. § 2254(d), precludes habeas corpus relief unless the state court's adjudication on the merits:
Respondent asserts that two of Petitioner's sub-claims are unexhausted and prospectively procedurally barred from federal habeas corpus review. Even if Petitioner has not presented to the state court all of his sub-claims now raised in this federal proceeding, it is apparent that his claims are meritless and should therefore be denied on the merits. See 28 U.S.C. § 2254(b)(2) (granting federal courts the discretion to deny habeas relief notwithstanding the failure to exhaust state remedies).
(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).
In Morrissey v. Brewer, 408 U.S. 471, 480 (1972), the Supreme Court set out six minimum requirements of due process for parole revocation hearings. Only the third requirement is in dispute in this case. See infra at p. 6, claim alleging denial of a witness.
The six due process guarantees are: (1) written notice of the claimed violations of parole; (2) disclosure to the parolee of evidence against him; (3) 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 specifically finds good cause for not allowing confrontation); (5) a "neutral and detached" hearing body such as a traditional parole board, members of which need not be judicial officers or lawyers; and (6) a written statement by the factfinders as to the evidence relied on and reasons for revoking parole. Morrissey, 408 U.S. at 489.
Petitioner primarily challenges his parole revocation on the ground of insufficient evidence. He alleges the Texas Board of Pardons and Parole (Board) did not establish that he violated Rule 2 of his parole contract — that he "[o]bey all municipal, county, state and federal laws." (Respondent's Exh. B at 2 and 41). He alleges that the four incidents which constitute the basis for his parole revocation were classified as two assaults and two terroristic threats "without any confirmation or supporting facts from any municipal, county, state or federal law enforcement agency." (Petitioner's memorandum in support of petition at "Packet #3" at p. 2). He further alleges that the Board's "decision was not supported by police reports, arrest reports, restraining orders, indictments, charges . . . [filed by the district attorney] DA, grand jury findings and sentence[s] from a judge or magistrate judge." (Petition at handwritten attachment to p. 7).
Judicial review of a decision to revoke parole "is quite circumscribed." Villarreal v. U.S. Parole Com'n, 985 F.2d 835, 839 (5th Cir. 1993). Due process only requires that there be "`some evidence' in the record to support the Commission's decision."Id. A revocation proceeding is not part of a criminal prosecution. Morrissey. 408 U.S. at 480. The burden of proof in a parole revocation hearing is by a preponderance of the evidence, a considerably lower standard than reasonable doubt which governs criminal trials. Villarreal. 985 F.2d at 839. All that is required for revocation is that the evidence and facts reasonably demonstrate that the person's conduct has not been as good as required by the terms and conditions of his release. See Mack v. McCune. 551 F.2d 251, 254 (10th Cir. 1977).
Although Villareal and other cases referred to in this recommendation involve revocations of federal paroles, they are relevant since they also apply the Supreme Court's decision in Morrissey v. Brewer.
Contrary to Petitioner's assertion the Constitution does not bar parole authorities from considering criminal activities for which the parolee has not even been charged. Maddox v. U.S. Parole Com'n, 821 F.2d 997, 999 (5th Cir. 1987) ("the commission may consider . . . allegations of criminal activity for which the prisoner has not even been charged."); see also Else v. Johnson. 104 F.3d 82, 83 (5th Cir. 1997) (to lawfully revoke parole, an arrest, charge and ultimate conviction of a new criminal offense are not required).
hi rejecting the notion that a subsequent criminal prosecution must have occurred, the Supreme Court in Morrissey. noting that sometimes revocation occurs when the parolee is accused of another crime, reasoned:
Given the previous conviction and the proper imposition of conditions, the State has an overwhelming interest in being able to return the individual to imprisonment without the burden of a new adversary criminal trial if in fact he has failed to abide by the conditions of his parole.408 U.S. at 483.
In this case, the documentation regarding the charged violations, the testimony and affidavits of Petitioner's ex-wife, Melinda Hindt, and his ex-sister-in-law, Melissa Preiser, who witnessed the December 15, 2000 assault, and the testimony of Supervising Parole Officer Chantle Blackmon, clearly provided sufficient factual support for the finding that Petitioner had violated at least one condition of his parole. Revocation was warranted. See United States v. McCormick, 54 F.3d 214, 219 n. 3 (5th Cir. 1995) (when reviewing decision to revoke supervised release based on several alleged violations, record need only support a violation of a single condition of release in order to be upheld by appellate court).
Petitioner complains that Ms. Hindt and Ms. Preiser were unreliable witnesses because they made fraudulent statements and misrepresented facts. (Memorandum in support at 6 and "Packet" 1 and 4).
Ms. Hindt allegedly misrepresented her name and marital status on the June 11, 2002 affidavit. (See Respondent's Exh. B at 8-9). According to Petitioner, she had not yet re-married Rick Hindt as of the time of signing the affidavit, and therefore, should not have signed the affidavit with her maiden name. Petitioner further notes that his ex-wife was seeking to enforce overdue child support payments under her maiden name. He further questions her credibility in light of an investigation by CPS Representative Heath O'Donnell regarding drug use and child abuse, and her interest in seeking full custody of Petitioner's daughter. (Memorandum at 6 and at "Packet 1").
With respect to Ms. Preiser, Petitioner states that her affidavit conflicts with a statement that she made on "PSV-48 tape" where she stated she never saw Petitioner choke Melinda with his bare hands. He also questions the portion of her affidavit (Respondent's Exh. B at 39), in which she states that she feared he might go to her residence on a Sunday night when her husband was called to work. Petitioner responds that he has never been to Ms. Preiser's house nor does he know where her house is. (Petitioner's Memorandum at "Packet 4").
Insofar as Petitioner contends the hearing officer improperly weighed the evidence, choosing to credit the victim's and her sister's affidavits and testimony as opposed to his denials, his claim fails for several reasons. First, as noted previously, the Board need only determine by a preponderance of the evidence that the parolee has violated a condition of parole in order to revoke parole. Second, formal rules of evidence do not apply to parole revocation hearings. The hearing officer and the Board may use any relevant evidence when considering a case for parole revocation. Third, the court cannot re-weigh the hearing officer's assessment of the relative credibility of the witnesses affidavit and testimony . . . " See Hackett v. U.S. Parole Com'n, 851 F.2d 127, 131 (6th Cir. 1987) (courts lack the power to overturn a credibility determination made during parole revocation proceedings).
Petitioner claims Ms. Hindt's affidavit was unreliable, fictitious and a forgery. (Petitioner's Memorandum at 9).
Next Petitioner asserts the Board denied him a witness, CPS representative Heather O'Donell, to establish the unreliability of Ms. Hindt's and Ms. Preiser's testimony and affidavit. (Petitioner's Memorandum at 10). Although a subpoena was issued for Ms. O'Donnell, she did not appear at the revocation hearing. (Respondent's Exh. B at 5 and 12).
Morrissey v. Brewer, 408 U.S. at 488, provides that a parolee has a qualified right to be heard and to present evidence that he did not violate the conditions of parole. Williams v. Johnson. 171 F.3d 300, 305 (5th Cir. 1999). Petitioner testified at the revocation hearing, along with his witness, Supervising Parole Officer Chantle Blackmon, and was given an opportunity to present documentary evidence to disprove the parole violation charges in compliance with the required minimum due process. According to Petitioner, Ms. O'Donnell would have testified that a CPS investigation initiated by Ms. Hindt failed to establish that he had used drugs in their home or had engaged in any child abuse. See Respondent's Exh. B at 5, 17-18, and 22. According to Petitioner the investigation took place about one year before his revocation hearing. Id. at 17. At the hearing Ms. Blackmon related that Ms. O'Donnell had spoken to her, but never told her the results of the CPS investigation. She further testified that Petitioner told her that O'Donnell had told him that the drug abuse allegation had not been substantiated. Id. at 7. Given the tangential nature of any testimony which Ms. O'Donnell might have offered and the fact that it would have been cumulative of the statements of both Petitioner and Ms. Blackmon, the hearing officer was justified in proceeding with the revocation hearing without requesting her presence. Id. at 5.
Petitioner never presented an affidavit of Ms. O'Donnell reflecting what she was competent to testify to. Therefore, he cannot demonstrate any violation of due process. E.g. see Alexander v. McCotter, 775 F.2d 595, 602-03 (5th Cir. 1985) (holding in the context of a habeas proceeding collaterally attacking a conviction that the failure to call a witness fails to allege a cognizable claim absent an affidavit executed by the uncalled witness).
Petitioner's contention that he was denied the right to appointment of counsel is likewise without merit. A parolee has no absolute right to counsel during parole revocation proceedings. Gagnon v. Scarpelli, 411 U.S. 778, 790 (1973). Rather the decision to appoint counsel is made on a case by case basis in the exercise of sound discretion by the state authority charged with the responsibility of administering the parole system. Id. at 790-91. In this case, Petitioner requested representation of counsel. The hearing officer, however, determined that Petitioner was "capable of expressing himself quite well, understood the nature of the allegations, and did not meet the conditional criteria for appointment." (Respondent's Exh. B at 6). Petitioner has not demonstrated an abuse of discretion on the part of the hearing officer in denying appointment of counsel. The lengthy memorandum and exhibits submitted in this federal action certainly support the hearing officer's findings that Petitioner was capable of defending himself.
In his memorandum, Petitioner asserts in passing that he was denied the right to appointment of an "investigative expert." (Petitioner's Memorandum at 4). The record does not reflect that Petitioner requested and was denied an investigator. Moreover, Petitioner has not provided any supporting authority, nor has this court found any, for the proposition that a parolee is entitled to the appointment of an investigator for purposes of a parole revocation hearing.
Petitioner also asserts that a sentence in the Administrative Release Hearing Report is incorrect, thus evidencing that the Board "willfully and knowingly made false misrepresentations that were crucial to [the] proceeding." (Petitioner's September 11, 2003 Exhibit at 2-3, and Respondent's Exh. B at 7). This claim is patently frivolous. The sentence in question reads as follows: "He was released from a prior incarceration only several days prior to the day these affidavits were signed, about the same day Hindt stated she had reported these allegations to Blackmon." (Id.). Regardless of its veracity, it is clear that the above statement barely touched on the issue of whether Petitioner complied with the terms of his parole. As a result, it is unlikely that it had any effect on the Board's final conclusion to revoke Petitioner's parole.
Lastly Petitioner challenges on double jeopardy and due process grounds the refusal to give him credit toward his sentence for the time served on parole — i.e., street-time credits. (Petitioner's Memorandum at 1). The Fifth Circuit has declined to extend the protections of the Double Jeopardy Clause to parole revocation. Morrison v. Johnson. 106 F.3d 127, 129 n. 1 (5th Cir. 1997) (citing Cortinas v. United States Parole Com'n., 938 F.2d 43, 46-47 (5th Cir. 1991), and United States v. Whitney, 649 F.2d 296, 298 (5th Cir. Unit B 1981)). Moreover, Petitioner lacks a protected liberty interest in street-time credits, which is a necessary requisite to a due process violation.See Morrison. 106 F.3d at 129 n. 1 (state prisoner was not entitled to credit for the "flat time" or "street time" that he spent while on parole). Presently, Texas law expressly denies credit for "street time" to a person, like Petitioner, who is ineligible for mandatory supervised release, see Tex. Gov't Code § 508.149(a) (Vernon Supp. 2004), and whose parole is revoked following his release from prison.
The 1991 conviction for murder with a deadly weapon (see Respondent's Exh. A), brings Petitioner within the parameters of Tex. Gov't Code § 508.149(a)(1) and (2), which states that an inmate convicted of an offense containing a deadly weapon finding or first or second degree murder is ineligible for release to mandatory supervision.
Section 508.283(b), Texas Government Code provides as follows:
If the parole, mandatory supervision, or conditional pardon of a person described by Section 508.149(a) is revoked, the person may be required to serve the remaining portion of the sentence on which the person was released. The remaining portion is computed without credit for the time from the date of the person's release to the date of revocation.
Tex. Gov't Code Ann. § 508.283(b) (Vernon Supp. 2004) (applying to any revocation that occurs on or after September 1, 2001) (emphasis added), In 1991, at the time of Petitioner's offense, conviction, and sentence, a virtually identical statutory provision governed such matters. See Tex. Code Crim. Proc. art. 42.18 § 14(a) (Vernon 1991). Moreover, it is well established "that time spent on parole does not operate to reduce the sentence of a parole violator returned to prison." See Starnes v. Connett, 464 F.2d 524, 524 (5th Cir. 1972); see also Cox v. State of Texas, 433 F.2d 982, 982 (5th Cir. 1970) (same); Betts v. Beto, 424 F.2d 1299, 1300 (5th Cir. 1970) (same).
Insofar as Petitioner seeks to challenge the forfeiture of his work-time and good-time credits earned prior to his release on parole (see Petitioner's memorandum at 1-2), his claim fares no better. State prisoners do not have a liberty interest in good-time credits.Cf. Hallmark v. Johnson. 118 F.3d 1073, 1079 (5th Cir. 1997) (state prisoners did not have protected liberty interest in restoration of good-time credits forfeited due to disciplinary violation). Texas law has long provided that good-time credits are "a privilege and not a right." Tex. Rev. Civ. Stat. Ann. art. 6181-1 § 4 (Vernon 1977), now Tex. Gov't Code § 498.003(a) (Vernon Supp. 2004).
Under Texas law work-time credits are treated as good-time credits. See Tex. Gov't Code § 498.003(d) (Vernon Supp. 2004).
Moreover, until September 1, 1995, Texas law vested complete discretion with state correctional authorities on the issue of restoration of good-time credits forfeited for parole revocation. Effective, September 1, 1995, the Texas Legislature deleted the restoration provision from § 498.004(b). See Tex. Gov't Code Ann. § 498.004(b) (Vernon 1996). Currently, § 498.004(b) provides that "[t]he department may not restore good conduct time forfeited on a revocation." TEX. GOV'T CODE § 498.004(b) (Vernon Supp. 2004) (emphasis added).
At the time of Petitioner's conviction and sentence, Texas Government Code § 498.004(b) provided in part:
The director of the institutional division may restore good conduct time forfeited on a revocation that does not involve a new criminal conviction after the inmate has served at least three months of good behavior in the institutional division, subject to rules adopted by the division. . . .See TEX. GOV'T CODE ANN. § 498.004(b) (Vernon Supp. 1992) (emphasis added).
In conclusion, Petitioner has not demonstrated that the Texas Court of Criminal Appeal's decision denying his state habeas application was either an unreasonable application of clearly established federal law or an unreasonable application of the facts in light of the evidence presented. Accordingly, the petition should be denied. RECOMMENDATION:
For the foregoing reasons, it is recommended that the petition for writ of habeas corpus be denied and dismissed.
It is further recommended that Petitioner's motions for appointment of counsel, for discovery and inspection of evidence, and for default judgment be denied as moot.
A copy of this recommendation will be mailed to Petitioner and 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 days after being served with a copy of this recommendation. Pursuant toDouglass v. United Servs. 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-day period may bar a de novo determination by the district judge of any finding of fact or 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.