Opinion
2:02-CV-0172.
April 29, 2004
REPORT AND RECOMMENDATION TO DENY PETITION FOR WRIT OF HABEAS CORPUS
Petitioner ROY DEAN TOLLEY has filed with this Court a Petition for a Writ of Habeas Corpus by a Person in State Custody, challenging the revocation of his parole. For the reasons hereinafter set forth, it is the opinion of the undersigned United States Magistrate Judge that the petition for writ of habeas corpus be denied.
I. PROCEDURAL HISTORY
Petitioner was convicted of two different felony offenses in the 59th Judicial District Court, Grayson County, Texas. In Cause No. 33,112, petitioner was charged by indictment with the offense of burglary of a habitation. Petitioner pleaded not guilty, was tried before a jury, found guilty, and was sentenced to thirty-five years confinement on August 25, 1983. Petitioner was later charged by indictment in Cause No. 37,867 with the offense of aggravated robbery with a deadly weapon, enhanced with two prior felony convictions. On October 6, 1989, petitioner pleaded guilty to the charge of aggravated assault with a deadly weapon, and was sentenced to twenty years confinement to run concurrent with any parole revocation. After serving a portion of these sentences in prison, petitioner was released on parole on February 8, 2001.
Shortly thereafter, on June 28, 2001, a warrant issued for petitioner's arrest for alleged parole violations including failure to report, changing addresses without permission, and leaving the state without permission. Petitioner was arrested in Oklahoma on the parole revocation warrant on August 19, 2001. Petitioner waived extradition on August 20, 2001, and was returned to the custody of the Texas Department of Criminal Justice, Institutional Division (TDCJ-ID), until a parole revocation hearing could be held. On November 20, 2001, a parole revocation hearing was held. Petitioner's parole was revoked on December 10, 2001. On January 15, 2002, petitioner filed a state writ of habeas corpus challenging the December 2001 parole revocation. The state petition was denied by the Texas Court of Criminal Appeals on May 15, 2002. Petitioner then initiated the instant federal application for writ of habeas corpus.
II. PETITIONER'S GROUNDS
In this federal petition for habeas corpus relief, petitioner alleges the revocation of his state parole was in violation of his federal constitutional rights. Petitioner alleges two grounds in support of his claim:
1. Petitioner alleges his incarceration in TDCJ-ID prior to the actual revocation of parole was unlawful; and
2. Petitioner alleges his parole revocation hearing was not held within the time limits set by Texas law.
III. MERITS
Petitioner's state application for writ of habeas corpus was denied by the Texas Court of Criminal Appeals without a written order and without a hearing based on the trial court findings. See state habeas application number 17,896-07. In that action, the trial court found as follows (pages 42-44):
(1) that petitioner's waiver of extradition and subsequent parole revocation hearing did not violate due process requirements;
(2) his TDCJ-ID incarceration temporarily was not an incarceration in lieu of a revocation hearing;
(3) the 61-day limit for a parole hearing did not apply to petitioner's case. Instead, petitioner's hearing was required to be held within a "reasonable time;" and
(4) the revocation was held within a reasonable time.
Petitioner's pleadings have been reviewed and it is the finding of the undersigned that petitioner has not met his burden under the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) to qualify for relief. Petitioner has failed to show the state court findings, and ultimately the denial of relief by the Texas Court of Criminal Appeals:
1) 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) was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
Further, in reviewing petitioner's allegations, it appears he is complaining about violations of state law, i.e., the Texas Government Code. State law violations are not cognizable in federal habeas corpus. West v. Johnson, 92 F.3d 1385, 1404 (5th Cir. 1996), cert. denied, 520 U.S. 1242, 117 S.Ct. 1847, 137 L.Ed.2d 1050 (1997).
Lastly, and critically, petitioner cannot show that he was prejudiced in any way as a result of the alleged infirmities he contends occurred during his parole revocation. The parole violations petitioner committed primarily involved leaving the state without permission and failing to report. Even if he was prematurely incarcerated and even if his revocation hearing was not timely held, petitioner cannot show how he was prejudiced. Petitioner's claims are without merit.
IV. RECOMMENDATION
It is the recommendation of the United States Magistrate Judge to the United States District Judge that the petition for a writ of habeas corpus filed by petitioner ROY DEAN TOLLEY be DENIED.
V. INSTRUCTIONS FOR SERVICE and NOTICE OF RIGHT TO OBJECT
The United States District Clerk is directed to send a file-marked copy of this Report and Recommendation to petitioner by certified mail, and to respondent by the most efficient means available.
Any party may object to these proposed findings, conclusions, and recommendation by filing such objections within fourteen (14) days after the filing date indicated on the first page of this Report. See Fed.R.Civ.P. 5(b) (service by mail is complete upon mailing); Fed.R.Civ.P. 6(e) (allowing a 3-day service by mail extension). Any such objections shall be made in a written document entitled "Objections to Report and Recommendation," and shall specifically identify the portions of the findings, conclusions, or recommendation to which objection is made, and set out fully the basis for each objection. Objecting parties shall file the written objections with the United States District Clerk and serve a copy of such objections on all other parties. A party's failure to timely file written objections to the proposed findings, conclusions, and recommendation contained in this report shall bar an aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions set forth in this report and accepted by the district court. Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).
IT IS SO RECOMMENDED.