Opinion
Civil Action No. 9:06cv4.
March 24, 2006
REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
The Plaintiff Philip Pohl, an inmate of the Texas Department of Criminal Justice, Correctional Institutions Division, filed this civil rights lawsuit under 42 U.S.C. § 1983 complaining of alleged violations of his constitutional rights. The lawsuit was referred to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. § 636(b)(1) and (3) and the Amended Order for the Adoption of Local Rules for the Assignment of Duties to United States Magistrate Judges.
Pohl sues Brad Livingston, whom he describes as "director of parole and classification," and Pamela Williams, whom he describes as the assistant director of records and classification. Pohl says that both of these individuals "blocked my chance for parole with material omissions, overt acts for denial, did not provide meaningful interview, allowed clerks to make parole decisions."
Pohl contends that Texas law is being ignored by the Parole Board, and replaced by "procedures of their own choice." He acknowledges that parole is a privilege, but says that his consideration is "law and classification."
Pohl argues that the Parole Board's evaluation of his suitability for release did not consider the "positive aspects" of his 20-year high school teaching career, or his exemplary reputation as a father, husband, and "social builder." He says that he was arrested on the "disgruntled acting out of words from my adult daughters who were instructed to do so by their deranged lesbian mother in an attempt to take the hard earned estate." Pohl says that he does not feel that these facts are in his file, and so he has been deprived of "facts pertinent to parole."
Pohl also says, continuing this theme, that the Defendants did not have in mind the fact that his was a plea agreement, inveigled with threats of "more damage," including suicide by the wife and the possibility that the daughters would be jailed if they withdrew their accusations. He indicates that he received ineffective assistance of counsel and that his sentence should not have been made aggravated. Pohl further says that the Defendants did not check his release plans, did not give him credit for programs which Pohl had to "beg" to get into, did not interview him or discuss his potential for rehabilitation in line with his intelligence, former responsible stance in society, or proven professional profile. He refers to these as "intentional omissions" and says that instead, he has been labeled as a "vicious criminal."
Based on this, Pohl argues that the Defendants have "tried him in private" and given him a "new sentence." He says that by law, he is supposed to have annual parole reviews from the time he served 20 flat years until his release, so it cannot be possible for the Defendants to give him a three-year set-off. Pohl says that this shows that the Defendants are applying "new law guidelines" to his case retroactively.
Next, Pohl says that in 1985, the prison system was in "serious trouble" and many forms of relief were issued, mainly in the form of federal decrees granting extra good time. Pohl says that this good time has been removed from his record, which he terms "robbery." He says that his work time, good time, and flat time should have been well above the 60 years needed for parole on April 12, 2005, but his time sheets showed only 53 years.
Pohl says that "a very difficult investigation" of the "secret file" that the classification department keeps on him shows that he has "several" DWI offenses. Pohl says that this is a lie, that in fact he has been arrested once for DWI, which he claims was a "hate act"; his wife called the police and had him stopped and told a friend of hers, who was with the Texas Department of Public Safety, to say that Pohl's blood alcohol level was .19 when in fact it was .09, which was not a crime at that time. He says that the case was dropped and he went to counseling, so to say that he had "several" DWI's is a fabrication.
Pohl says that "investigation shows that" the Defendants are allowing clerks and other personnel the right to make decisions simply by glancing at the crime committed and passing the information on to the parole board, and that these clerks are not aware that their personal repugnance toward a particular crime is not a proper basis for denial of parole. Pohl does not indicate what type of investigation revealed this information nor provide any indication of how he knows that this is taking place.
He says that nothing in the law gives the parole board the right to grant or deny parole for any reason other than the suitability criteria or the offender's fitness to return to society. He says that he is not a danger to society and that the "affection discretion" [sic] allegedly occurring in his private home is not a dangerous aspect to be concerned by society. He also says that he is not a pedophile.
Between 1988 and 1998, Pohl says, he worked at the Skyview Unit using his college degree as an occupational therapy assistant. In doing so, he says, he saved the State $34,000.00 a year, because he was not paid for this job. Pohl says that not paying him was legal, but that he should not have been denied work time credits. Had these credits been given to him, Pohl says, he would have had 65 years of time credits and "plenty qualified for mandatory supervision or parole," instead of the 53 years that he actually had; Pohl says that he "received a new three-year sentence" when he got a three-year parole set-off.
Next, Pohl says that there are "many facts" which punish sex offenders not considered by the parole board, including beatings, property confiscations, bogus disciplinary cases, placement in the "loudest nastiest housing continuously," and most demeaning jobs.
Finally, Pohl again impugns the validity of his conviction, saying that the classification department does not want to know (by not allowing him a meaningful interview) that his case stems from the "state's low morals code" of telling his physically mature daughters that if they were to come up pregnant, they had the state's permission to murder Pohl's grandchildren in the most vulnerable stage of life so that they could solve a lack of responsibility "mistake." Pohl says this is why his daughters claimed that he was sexually involved with them, when in fact he was physically incapable of the act of which he was accused. Pohl complains that this fact, also, is not in his file.
Legal Standards and Analysis
Pohl is serving a life sentence for aggravated sexual assault and indecency with a child. See Pohl v. State, ___ S.W.2d ___, slip op. no. 04-04-00286-CR (Tex.App.-San Antonio 2005, no pet.). Because he has a life sentence, he is not eligible for release on mandatory supervision. Arnold v. Cockrell, 306 F.3d 277, 279 (5th Cir. 2002). His claim is thus properly read to concern parole alone. Pohl appears to challenge the procedures used in parole determinations, rather than a single allegedly defective hearing, and so his lawsuit properly sounds in civil rights law rather than as a habeas corpus petition. Serio v. Members, Louisiana State Board of Pardons, 821 F.2d 1112, 1118 (5th Cir. 1987).
The Fifth Circuit has held that Texas inmates have no constitutional right to or liberty interest in release on parole.Creel v. Keene, 928 F.2d 707, 708-09 (5th Cir. 1991); see also Allison v. Kyle, 66 F.3d 71, 74 (5th Cir. 1995). The Fifth Circuit has also held that there are no procedural due process protections for procedures unrelated to protected liberty interests, specifically including parole procedures. Johnson v. Rodriguez, 110 F.3d 299, 308-09 and n. 13. In Johnson, the Fifth Circuit expressly stated that because Texas prisoners have no protected liberty interest in parole, they cannot mount a challenge against any state parole review procedure on procedural or substantive grounds. Johnson, 110 F.3d at 308.
Under this precedent, because Pohl has no constitutionally protected liberty interest in parole, he is precluded from raising a procedural or substantive due process challenge to the procedures attendant to the parole decision. Because his lawsuit is a challenge to the procedures attendant to the parole decision, it is necessarily without merit.
The Court also notes that some of Pohl's claims are foreclosed by other precedents as well. In Allison v. Kyle, an inmate challenged the application of new parole review procedures to him, arguing that these procedures were set in place in 1987 and 1992, well after his 1969 conviction. The old procedures called for annual parole reviews, but under the new procedures, Allison received a six-year setoff.
The Fifth Circuit held that because inmates have no liberty interest in obtaining parole in Texas, they cannot bring lawsuits complaining of the constitutionality of procedural devices attendant to parole decisions. Allison, 66 F.3d at 74, citing Sandin v. Conner, 115 S.Ct. 2293, 2300 (1995).
Neither did Allison have a valid claim under the Ex Post Facto Clause. The Court noted that a law need not impair a vested right to violate the Ex Post Facto prohibition; instead, "critical to relief under the Ex Post Facto Clause is not an individual's right to less punishment, but the lack of fair notice and governmental restraint when the legislature increases the punishment beyond what was prescribed when the crime was consummated." Allison, 66 F.3d at 74, citing Weaver v. Graham, 450 U.S. 24, 30 (1981).
In this case, Pohl complains that any policy applied to him which was enacted after his conviction and which operates to his detriment runs afoul of the Ex Post Facto Clause, specifically including the replacement of annual parole reviews with three-year intervals between reviews. This argument was addressed in California Department of Corrections v. Morales, 115 S.Ct. 1597 (1995). There, the respondent argued that the Ex Post Facto Clause forbids any legislative change which has any conceivable risk of affecting a prisoner's punishment, as does Williams, but the Court rejected this position. Morales, 115 S.CT. AT 1602-03. Pohl's contention fails for the same reason.
Pohl also complains that he did not receive sufficient good time credits, arguing that on April 12, 2005, he should have had over 60 years of credits, but he had only 53. TDCJ-CID public records show that Pohl became eligible for parole on April 12, 2005; had he not been eligible for parole, he could not have received a set-off.
Because Pohl became eligible for parole on April 12, 2005, it is not clear what significance the amount of good time which he had on that date could have. To the extent that he believes that 60 years of time credits would entitle him to release, as he appears to imply, he is incorrect. Under Texas law, good time does not reduce the length of a sentence. Tex. Gov. Code, § 498.003(a). Both the Fifth Circuit and the Texas Court of Criminal Appeals have held that Texas law does not authorize the reductions of sentences through application of good time credits.Ables v. Scott, 73 F.3d 591 (5th Cir. 1995); Ex Parte Hallmark, 883 S.W.2d 672, 674 (Tex.Crim.App. 1994, reh. den.) (good conduct time applies only to eligibility for parole or mandatory supervision, and does not reduce the term of the sentence imposed). The sole purpose of the good time earned is to accelerate eligibility for release on parole or mandatory supervision; it does not affect the length of the sentence itself in any way.
In Pohl's case, however, because he was serving a life aggravated sentence for sexual assault of a child, the law specified that he had to serve 20 years of calendar time before he could become eligible for parole; specifically, that he would not be eligible for parole until the actual time served equaled one-third of the sentence imposed or 20 years, whichever is less, without consideration of good time. See Tex. Code Crim. Pro. art. 37.07, sec. 4(a) (Vernon Supp. 1985). Whether Pohl had 53 years or 60 years or 65 years of good time therefore made no difference; he would not be eligible for parole until he served 20 years. Once he did so, in April of 2005, he became eligible for parole. However, as noted above, Pohl had no constitutional right to nor any liberty interest in release on parole once he became eligible, and he therefore cannot challenge the procedures attendant to the decision of whether or not to grant him parole. Thus, the fact that the Board did not take his protestations of innocence, or his version of the facts underlying his conviction, into account does not amount to a constitutional violation.
Pohl's assertion that a three-year set-off amounts to a "new sentence" is without merit. He received a life sentence, which will not discharge during his lifetime except through operation of executive clemency. Texas law, then as now, holds that neither parole, mandatory supervision, nor good time serves to affect the term of the sentence. Tex.Rev.Stat. Ann. art. 6181-1, sec. 4 (Vernon 1985); Ex Parte Patterson, 740 S.W.2d 766, 768 n. 3 (Tex.Crim.App. 1987), rev'd on other grounds in Ex Parte Beck, 769 S.W.2d 525 (Tex.Crim.App. 1989). The set-off simply reflected the Parole Board's decision that Pohl should not receive parole; it neither added to nor subtracted from the term of his sentence.
Finally, Pohl complains that his record shows that he has had "several" DWI's, when in fact this is not true. At one time, the Fourth Circuit held that a claim of constitutional magnitude may be stated if an inmate shows that false information is in his file which is relied upon to a constitutionally significant degree. Paine v. Baker, 595 F.2d 197, 201 (4th Cir.), cert. denied 444 U.S. 925 (1979); see also Guthrie v. Evans, 93 F.R.D. 390, 395 (S.D. Ga. 1981) and McCrery v. Mark, 823 F.Supp. 288, 291 (E.D.Pa. 1993). The Fourth Circuit made clear that the fact that merely because an inmate disputes evaluations and opinions concerning him does not show that the information is false. Paine, 595 F.2d at 201.
However, Paine has been questioned by the Fifth Circuit and other courts, including the Fourth Circuit itself. Paine arose in the context of information in a parole file, and because inmates have no constitutional right to release on parole, the courts, including the Fifth Circuit, have concluded that there are no procedural due process protections for procedures unrelated to protected liberty interests. Johnson v. Rodriguez, 110 F.3d at 308-09 and n. 13. In Johnson, as noted above, the Fifth Circuit expressly stated that because Texas prisoners have no protected liberty interest in parole, they cannot mount a challenge against any state parole review procedure on procedural or substantive grounds. Johnson, 110 F.3d at 308. This includes the contentions concerning allegedly false information; the Fifth Circuit concluded that Johnson's allegation that the Board considers unreliable or even false information in making parole determinations, without more, did not assert a federal constitutional violation. Similarly, Pohl's allegation that the Parole Board has and considers false information about him does not rise to the level of a constitutional violation. His claim on this point is without merit.
Conclusion
28 U.S.C. § 1915A requires that as soon as practicable, district courts must review complaints wherein prisoners seek redress from governmental entities or their employees. Section 1915A(b) requires that upon review, the court shall identify cognizable claims or dismiss the complaint or any portion thereof if the complaint is frivolous, malicious, fails to state a claim upon which relief may be granted, or seeks monetary relief from a defendant who is immune from such relief.The term "frivolous" means that a complaint lacks an arguable basis in law or fact; a complaint is legally frivolous when it is based upon an indisputably meritless legal theory. Neitzke v. Williams, 490 U.S. 319, 325-7 (1989). A complaint fails to state a claim upon which relief may be granted if as a matter of law, it is clear that no relief could be granted under any set of facts that could be proved consistent with the allegations.Neitzke v. Williams, 490 U.S. 319, 327, (1989), citing Hishon v. King Spalding, 467 U.S. 69, 73 (1984); see also Blackburn v. City of Marshall, 42 F.3d 925, 931 (5th Cir. 1995).
In this case, Pohl's complaint lacks any arguable basis in law and fails to state a claim upon which relief may be granted. Consequently, his lawsuit may be dismissed as frivolous under 28 U.S.C. § 1915A(b). See generally Thompson v. Patteson, 985 F.2d 202 (5th Cir. 1993).
RECOMMENDATION
It is accordingly recommended that the above-styled civil rights lawsuit be dismissed with prejudice as frivolous. 28 U.S.C. § 1915A.
A party's failure to file objections to the findings, conclusions, and recommendations contained in this Report within ten days after service with a copy thereof shall bar that party from de novo review by the district judge of those findings, conclusions, and recommendations and, except upon grounds of plain error, from appellate review of the unobjected-to proposed factual findings and legal conclusions accepted and adopted by the district court. Douglass v. United Services Automobile Association, 79 F.3d 1415, 1430 (5th Cir. 1996) ( en banc).
So ORDERED.