Opinion
CIVIL ACTION NO. 4:03-CV-014-A
March 26, 2003
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER
This cause of action was referred to the United States Magistrate Judge under 28 U.S.C. § 636 (b), as implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusions, and Recommendation of the United States Magistrate Judge are as follows:
I. FINDINGS AND CONCLUSIONS A. NATURE OF THE CASE
This is a petition for writ of habeas corpus by a state prisoner under 28 U.S.C. § 2254.
B. PARTIES
Petitioner Kent Anthony Gideon, TDCJ-ID #931466, is in custody of the Texas Department of Criminal Justice, Institutional Division, and is presently incarcerated in the Wackenhut Correctional Center in Bridgeport, Texas.
Respondent Janie Cockrell is the Director of the Texas Department of Criminal Justice, Institutional Division.
C. PROCEDURAL HISTORY
On July 3, 2000, Gideon pleaded guilty to felony driving while intoxicated and was sentenced to six years' confinement. (State Habeas R. at 36.) Gideon did not pursue a direct appeal from this conviction. (Federal Pet. at 3.) Gideon filed a state application for writ of habeas corpus, challenging his conviction, which the Texas Court of Criminal Appeals denied without written order on November 14, 2001. (State Habeas R. at 4; Resp't Answer at 2 n. 2.)
On October 9, 2001, the Texas Board of Pardons and Paroles sent Gideon a notice advising him that he was scheduled for a review of whether he would be released to mandatory supervision. (State Habeas R. at 11.) On May 2, 2002, the Parole Board notified Gideon that it had denied him a release to mandatory supervision because of his violent criminal history and his excessive alcohol and drug use. ( Id. at 34.) On August 19, 2002, Gideon filed a second state habeas application, arguing that he was unconstitutionally denied the right to be heard and present favorable evidence before the Parole Board. ( Id. at 5, 19-20.) The Court of Criminal Appeals denied the application without written order. Ex parte Gideon, No. 50,682-02 (Tex.Crim.App. Nov. 20, 2002) (not designated for publication). Gideon filed his federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Fort Worth Division, on December 26, 2002. See Spotville v. Cain, 149 F.3d 374 377 (5th Cir. 1998) (holding, under prison mailbox rule, pro se habeas petition filed when papers delivered to prison authorities for mailing).
D. ISSUES
Gideon argues that:
1. he was denied mandatory supervision without a hearing, which violated the Due-Process Clause,
2. his right to be released to mandatory supervision was a protected liberty interest
3. he was wrongfully denied mandatory supervision even though he met the statutory criteria for release, and
4. he has been subjected to double jeopardy because the Parole Board considered prior and concurrent sentences in denying him a mandatory-supervision release.
E. RULES STATEMENT
Cockrell argues that Gideon's claims arguing that he should have been granted mandatory-supervision release because he met the statutory criteria and that the denial of a mandatory-supervision release subjected him to double jeopardy have not been exhausted and asserts that they have been procedurally defaulted; however, Cockrell believes that Gideon's remaining allegations have been properly exhausted.
F. DISCUSSION 1. Exhaustion
Applicants seeking habeas relief under § 2254 are required to exhaust all claims in state court before requesting federal collateral relief. 28 U.S.C. § 2254 (b)(1); Fisher v. Texas, 169 F.3d 295, 302 (5th Cir. 1999). The exhaustion requirement is satisfied when the substance of the federal habeas claim has been fairly presented to the highest state court. Picard v. Connor, 404 U.S. 270, 275-76 (1981); Fisher, 160 F.3d at 302. This requires that the state court be given a fair opportunity to pass on the claim, which in turn requires that the applicant present his claims before the state courts in a procedurally proper manner according to the rules of the state courts. Dupuy v. Butler, 837 F.2d 699, 702 (5th Cir. 1988).
As Cockrell correctly points out, Gideon failed to raise his arguments regarding the statutory criteria or the Double Jeopardy Clause in his second state application for habeas corpus relief. (Resp't Answer at 3-4.) Thus, he seeks federal habeas relief on factual allegations that were never made in the Texas courts, which renders these claims unexhausted. Finley v. Johnson, 243 F.3d 215, 219 (5th Cir. 2001).
However, Gideon cannot return to the Texas courts to cure this deficiency. The Texas abuse-of-the-writ doctrine prohibits a successive habeas petition, absent a showing of cause, if the applicant urges grounds that could have been, but were not, raised in his first habeas petition. Ex parte Barber, 879 S.W.2d 889, 891 n. 1 (Tex.Crim.App. 1994), cert. denied, 513 U.S. 1084 (1995). This doctrine is an adequate state procedural bar for purposes of federal habeas review. Emery v. Johnson, 139 F.3d 191, 195 (5th Cir. 1997), cert. denied, 525 U.S. 969 (1998); Nobles v. Johnson, 127 F.3d 409, 423 (5th Cir. 1997), cert. denied, 523 U.S. 1139 (1998). Accordingly, federal habeas corpus relief is unavailable in the face of a state procedural default unless the petitioner can show either (1) cause for the default and actual prejudice or (2) that the federal court's failure to consider the claim will result in a miscarriage of justice, i.e., that the petitioner is actually innocent of the crime. Sawyer v. Whitley, 505 U.S. 333, 339-40 (1992); Coleman v. Thompson, 501 U.S. 722, 750 (1991); Finley, 243 F.3d at 219-20.
Gideon has not given any credible explanation to excuse his default. Indeed, these additional alleged defects in the Parole Board's determination were known to Gideon before he filed his second state habeas corpus application. E.g., Robison v. Johnson, 151 F.3d 256, 263 (5th Cir. 1998), cert. denied, 526 U.S. 1100 (1999). Accordingly, these claims are unexhausted and procedurally defaulted. 28 U.S.C. § 2254 (b)(2).
2. Legal Standard for Granting Habeas Corpus Relief
Under 28 U.S.C. § 2254 (d), a writ of habeas corpus on behalf of a person in custody under a state court judgment shall not be granted with respect to any claim that was adjudicated on the merits in state court proceedings unless he shows that the prior adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law 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. 28 U.S.C. § 2254 (d). A decision is contrary to clearly established federal law if the state court arrives at a conclusion opposite to that reached by the United States Supreme Court on a question of law or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000); see also Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000), cert. denied, 532 U.S. 1039 (2001). A state court decision will be an unreasonable application of clearly established precedent if it correctly identifies the applicable rule but applies it objectively unreasonably to the facts of the case. Williams, 529 U.S. at 407-08; see also Neal v. Puckett, 286 F.3d 230, 236, 244-46 (5th Cir. 2002), cert. denied, 123 S.Ct. 963 (2003).
Section 2254(e)(1) provides that a determination of a factual issue made by a state court shall be presumed to be correct. The applicant has the burden of rebutting this presumption of correctness by clear and convincing evidence. Hill, 210 F.3d at 485. When the Texas Court of Criminal Appeals denies relief in a state habeas corpus application without written order, it is an adjudication on the merits, which is entitled to this presumption. Ex parte Torres, 943 S.W.2d 469, 472 (Tex.Crim.App. 1997).
3. Mandatory Supervision and Due Process
In two grounds, Gideon argues that his constitutional rights were violated when he was denied release to mandatory supervision without a hearing, which was a vested liberty interest. The Parole Board notified Gideon in writing on October 9, 2001 that it would review his eligibility for release and invited him to submit "as soon as possible" any information he wanted considered in the determination. (State Habeas R. at 11.) Further, after the Parole Board denied Gideon mandatory supervision seven months later, it gave him the reasons for the denial. ( Id. at 5, 34; Pet'r Reply at 2.) Due process requires no more than this. See LaChance v. Erickson, 522 U.S. 262, 266 (1998) (holding due process requires notice and meaningful opportunity to be heard); Greenholtz v. Inmates of the Neb. Penal Corr. Complex, 422 U.S. 1, 16 (1979) (stating opportunity to be heard and providing reasons for denying release sufficient to satisfy due process); Ex parte Geiken, 28 S.W.3d 553, 560 (Tex.Crim.App. 2000) (holding due process requires only timely notice before mandatory-supervision review, but a live hearing is not required). Gideon's constitutional rights were not violated by the mandatory-supervision denial; thus, the state courts' determination that Gideon was not entitled to relief is not contrary to or does not involve an unreasonable application of clearly established federal law and is not based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings.
II. RECOMMENDATION
Gideon's petition for writ of habeas corpus should be denied.
III. NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSIONS, AND RECOMMENDATION AND CONSEQUENCES OF FAILURE TO OBJECT
Under 28 U.S.C. § 636 (b)(1), each party to this action has the right to serve and file specific written objections in the United States District Court to the United States Magistrate Judge's proposed findings, conclusions, and recommendation within ten (10) days after the party has been served with a copy of this document. The court is extending the deadline within which to file specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation until April 16, 2003. The United States District Judge need only make a de novo determination of those portions of the United States Magistrate Judge's proposed findings, conclusions, and recommendation to which specific objection is timely made. See 28 U.S.C. § 636 (b)(1). Failure to file by the date stated above a specific written objection to a proposed factual finding or legal conclusion will bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any such proposed factual finding or legal conclusion accepted by the United States District Judge. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc); Carter v. Collins, 918 F.2d 1198 (5th Cir. 1990).
IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until April 16, 2003 to serve and file written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation. It is further ORDERED that if objections are filed and the opposing party chooses to file a response, the response shall be filed within seven (7) days of the filing date of the objections.
It is further ORDERED that the above-styled and numbered action, previously referred to the United States Magistrate Judge for findings, conclusions, and recommendation, is returned to the docket of the United States District Judge.