Williams v. Garrett

Full title: IVERY T. WILLIAMS, Petitioner, v. GERALD GARRETT, Respondent

Court: United States District Court, N.D. Texas, Dallas Division

Date published: Apr 23, 2004

No. 3:04-CV-548-R (N.D. Tex. Apr. 23, 2004)

Opinion

No. 3:04-CV-548-R

April 23, 2004

FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE

PAUL STICKNEY, Magistrate Judge

Pursuant to the provisions of 28 U.S.C. § 636(b), implemented by 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 are as follows:

FINDINGS AND CONCLUSIONS :

Procedural History : Petitioner has filed this petition for writ of mandamus and injunctive relief. He seeks to have this Court order the Texas Board of Pardons and Paroles to review his parole eligibility annually, rather than bi-annually. Petitioner argues the change in parole procedures from an annual review to a bi-annual review violates his constitutional rights.

Discussion :

As a prisoner seeking redress from an officer or employee of a governmental entity, petitioner's complaint is subject to preliminary screening pursuant to 28 U.S.C. § 1915A. See Martin v. Scott, 156 F.3d 578, 579-80 (5th Cir. 1998). Section 1915A provides for sua sponte dismissal if the Court finds the complaint frivolous or if the complaint fails to state a claim upon which relief may be granted. A claim is frivolous if it lacks an arguable basis in law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). A complaint fails to state a claim upon which relief may be granted when it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957); Smith v. Winter, 782 F.2d 508, 511-12 (5th Cir. 1986).

A state prisoner does not have a federal constitutional right to obtain release prior to the expiration of his sentence. See Greenholtz v. Inmates of Neb. Penal Correctional Complex, 442 U.S. 1, 7 (1979). Further, prisoners in Texas have no liberty interest in obtaining parole, so they have no claim for violations of due process in the procedures attendant to parole decisions. See Orellana v. Kyle, 65 F.3d 29, 31 (5th Cir. 1995). Finally, the Fifth Circuit has found that the Board's revised procedures allowing for set-offs of more than one year for parole reviews does not violate due process and does not violate the Ex Post Facto Clause. See Allison v. Kyle, 66 F.3d 71, 73 (5th Cir. 1995). Petitioner's claim for injunctive and mandamus relief should therefore be dismissed as frivolous.

RECOMMENDATION:

For the foregoing reasons, the Court recommends that the petition for injunctive and mandamus relief be dismissed as frivolous.

INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO APPEAL/OBJECT

The United States District Clerk shall serve a true copy of these findings, conclusions and recommendation on Petitioner. Pursuant to Title 28, United States Code, Section 636(b)(1), any party who desires to object to these findings, conclusions and recommendation must serve and file written objections within ten days after being served with a copy. A party filing objections must specifically identify those findings, conclusions or recommendation to which objections are being made. The District Court need not consider frivolous, conclusory or general objections. A party's failure to file such written objections to these proposed findings, conclusions and recommendation shall bar that party from a de novo determination by the District Court. See Thomas v. Arn, 474 U.S. 140, 150, 106 S.Ct. 466, 472 (1985). Additionally, any failure to file written objections to the proposed findings, conclusions and recommendation within ten days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds of plain error. Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en banc).