Opinion
Civil Action No. 4:98-CV-0823-Y
November 3, 2000
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 pursuant to the provisions of Title 28, United States Code, Section 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:
FINDINGS AND CONCLUSIONS
A. NATURE OF THE CASE
This is a petition for writ of habeas corpus by a state prisoner pursuant to Title 28 of the United State Code, Section 2254.
B. PARTIES
Petitioner Roger Dean Tolley, TDCJ-ID #440135, is a convicted state felon who was incarcerated in the Hughes Unit of the Texas Department of Criminal Justice, in Gatesville, Texas at the time of the filing of this habeas corpus petition.
After the filing of this petition, Tolley was released from confinement on and he resides in the State of Virginia. He has a scheduled maximum sentence expiration date of June 30, 2007.
Respondent Gary Johnson is the Director of the Texas Department of Criminal Justice, Institutional Division.
C. PROCEDURAL HISTORY
Pursuant to a negotiated plea of guilty entered on May 26, 1987, in Criminal District Court Number One of Tarrant County, Texas in Cause No. 0285529A, Tolley was convicted of the offense of sexual assault, the lesser included offense of the crime charged in the indictment. Ex Parte Tolley, No. 18,438-01 at 35, 36. Tolley was sentenced to a term of incarceration of fifteen years. Id. at 36. No direct appeal was taken from the conviction (Petition at ¶ 8), but Tolley did pursue post-conviction relief On April 25, 1988, Tolley filed his first state application for writ of habeas corpus, challenging the method of calculation utilized to award him various credits. Ex Parte Tolley, No. 18,438-01 at 2-5. On June 8, 1988, the Texas Court of Criminal Appeals granted Tolley's application, requiring Tolley to be awarded additional good time credits. Ex Parte Tolley, No. 70,196 (Tex.Crim.App. June 8, 1988).
On August 1, 1990, Tolley was released from confinement on parole. (Exhibit A to Respondent's Answer). On January 28, 1997, Tolley was convicted of the new offense of possession of marijuana, and sentenced to 180 days in the county jail. (Exhibit B to Respondent's Answer). Based upon the new conviction, parole revocation proceedings were commenced in the subject case. (Exhibits C and D to Respondent's Answer). A final parole revocation hearing was conducted on March 11, 1997, during which Tolley was represented by retained counsel. (Exhibit C to Respondent's Answer). During the hearing, the judgment and sentence entered on January 28, 1997, in County Court at Law Number One, Williamson County, Texas, Cause No. 96-3575-1, was admitted as an exhibit and Tolley stipulated that he had been convicted of the offense of possession of marijuana. Id. At the conclusion of the hearing, the field officer found that Tolley had violated the conditions of his release by possessing marijuana. Id. The officer recommended that Tolley continue on parole, but that his conditions of parole be modified in that inter alia he be transferred to a substance abuse facility. Id. On March 27, 1997, the Board agreed with the recommendation. Id. Tolley arrived at the Joe Ney Substance Abuse Felony Punishment Facility (SAFPF) on April 25, 1997. Ex Parte Tolley, No. 18,438-02 at 42.
On or about April 30, 1997, Tolley's parole officer was notified by officials at the facility that Tolley was ineligible for the SAFPF program due to his underlying offense of sexual assault. Id. Tolley's case was then returned to the Board for a second review, and on May 12, 1997, Tolley's parole was revoked. Id. at 36, 42. Tolley was apparently not notified by the Board of the revocation, and only became aware that his parole had been revoked when he was transferred to the Institutional Division on May 20, 1997. Id. at 42, 65. Tolley's attorney was also not notified of the parole revocation. Ex Parte Tolley, No. 18,438-02, Supplemental Record at 5. Tolley then filed a second state application for writ of habeas corpus on August 28, 1997, essentially raising inter alia the claims of this federal petition. Ex Parte Tolley, No. 18,438-02 at 2-25. On February 18, 1998, the Texas Court of Criminal Appeals denied the application without a written order on the findings of the trial court without a hearing. Ex Parte Tolley, No. 18,438-02 at Cover (Tex.Crim.App. February 18, 1998). Tolley next filed this federal petition for writ of habeas corpus on September 23, 1998, challenging the revocation of his parole and resultant confinement. The respondent filed an Answer with attached documentary exhibits, supported by a brief Petitioner filed a reply.
For purposes of this habeas corpus proceeding, Tolley's federal petition is deemed filed when he handed over his executed petition to prison authorities for mailing on September 23, 1998, and not this Court's file stamp date of September 24, 1998. Spotville v. Cain, 149 F.3d 374 (5th Cir. 1998).
On July 29, 1999, Tolley notified the Court of his new address, indicating that he resides in the State of Virginia. Telephonic communication with the Texas Department of Criminal Justice confirmed that Tolley had in fact been released from confinement on July 22, 1999. On September 10, 1999, the petition was dismissed as moot. (Docket Entry #26, 30, 31). Tolley appealed the dismissal to the Fifth Circuit Court of Appeals, and the appellate court in an unpublished opinion issued on July 28, 2000, found the petition not to have been rendered moot by Tolley's release in that Tolley continues to suffer an actual injury as a result of the alleged wrongful parole revocation (i.e., the extension of Tolley's parole release date until June 23, 2007). Tolley v. Johnson, No. 99-11157 (5th Cir. July 28, 2000). The Court, therefore, reversed and remanded the case to this Court for further proceedings. Id. The case was then re-referred to the undersigned for findings, conclusions and recommendation as to disposition of the petition.
D. RULE 5 STATEMENT
The Respondent asserts that Petitioner has exhausted his state remedies as to the issues presented in this habeas corpus petition, and therefore does not move for dismissal on this ground.
E. ISSUES
Petitioner essentially claims that he was denied due process of law in connection with his parole revocation proceedings. Specifically, he alleges that the Texas Board of Pardons and Paroles (1) denied him his right to notice and to be heard before revoking his parole; and (2) acted in an arbitrary, capricious and malicious manner when it revoked his parole.
F. LEGAL STANDARD FOR GRANTING HABEAS CORPUS RELIEF
This habeas corpus proceeding is controlled by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA"). The AEDPA's compelled deference to decisions of state courts is now familiar. Under 28 U.S.C. § 2254 (d), a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a state court shall not be granted with respect to any claim that was adjudicated on the merits in state court proceedings unless the adjudication of the claim:
(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).
A decision is contrary to clearly established Federal law if the state court arrives at a conclusion opposite to that reached by the 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. See Williams v. Taylor, ___ U.S. ___, 120 S.Ct. 1495 (2000). See also Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000). Under § 2254(d)(1)'s "unreasonable application" language, a writ may issue if the state court identifies the correct governing principle from the Supreme Court's decisions but unreasonably applies that principle to the facts of the prisoner's case. Williams v. Taylor, 120 S.Ct. 1495; Hill v. Johnson, 210 F.3d at 485. The Act further requires that federal courts give great deference to a state court's factual findings. 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 now has the burden of rebutting the presumption of correctness by clear and convincing evidence. Id.
G. EXAMINATION OF THE ISSUES
Petitioner challenges his parole revocation on due process grounds. Tolley alleges that when the Texas Board of Pardons and Paroles revoked his parole, after initially deciding to continue him on parole and transfer him to a SAFPF, the Texas Board of Pardons and Paroles denied him his right to notice and to be heard. Tolley further alleges that such action by the Texas Board of Pardons and Paroles was arbitrary, capricious and malicious.
Texas inmates have no constitutionally protected right to parole, because the relevant Texas statutes do not create an expectation of release which would implicate due process considerations. Orellana v. Kyle, 65 F.3d 29 (5th Cir. 1995), cert. denied, 516 U.S. 1059 (1996), citing, Creel v. Keene, 928 F.2d 707, 712 (5th Cir.), cent. denied, 501 U.S. 1210 (1991); Allison v. Kyle, 66 F.3d 71 (5th Cir. 1995) However, the loss of liberty necessitated in parole revocation requires that parolees be accorded due process. Gagnon v. Scarpelli, 411 U.S. 778, 781 (1973); Morrissey v. Brewer, 408 U.S. 471, 482 (1972). Thus, persons already at liberty on parole have a conditional liberty interest protected by the Fourteenth Amendment of the Constitution entitling them to the following minimum due process requirements during parole revocation proceedings: (1) written notice of the claimed violations of parole; (2) disclosure of the evidence against the parolee; (3) the opportunity to be heard in person and to present witnesses and documentary evidence; (4) the right to confront and cross-examine adverse witnesses; (5) a neutral and detached hearing body such as a parole board; 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.
Tolley is claiming that his parole revocation, which occurred after his transfer to the SAFPF, was unlawful because he was never advised that his parole was to be revoked and never had the opportunity to be heard regarding revocation. This claim is meritless. Tolley received all procedural process to which he was entitled. Specifically, on February 7, 1997, Tolley received written notice of the charged parole violation (i.e., violation of Rule #2-possession of marijuana) and notice of his rights in the revocation process. (Respondent's Answer at Exhibit D). Tolley was advised of his right to a preliminary hearing, and he chose to exercise that right. (Respondent's Answer at Exhibits C and D). A final parole revocation hearing was conducted on March 11, 1997. (Respondent's Answer at Exhibit C). At the parole revocation hearing, where Tolley was represented by retained counsel, he denied the charge against him. Id. Tolley did, however, stipulate that he had been convicted of the new offense of possession of marijuana. Id. The hearing officer heard testimony from Tolley and Tolley's then parole officer. Id. Tolley was provided with the opportunity to present witnesses and evidence, and cross-examine adverse witnesses. The record further includes a written statement by the factfinder as to the evidence relied on and reasons for finding that Tolley violated conditions of his parole. Id. The hearing officer found that Tolley had committed the charged violation (i.e., possession of marijuana). Id.
Revocation of parole, although an appropriate and lawful sanction, was however not recommended, with a less harsh intermediate action taken. The officer recommended that Tolley be permitted to continue under the supervision of the Parole Board and be placed in a Substance Abuse Felony Punishment Facility (SAFPF). Id. The Board agreed, and on March 27, 1997, ordered Tolley transferred to a SAFPF. Tolley was transferred to that facility on April 25, 1997. Ex Parte Tolley, No. 18,438-02 at 42. Soon thereafter, it was discovered that Tolley was ineligible for a SAFPF due to his underlying conviction for sexual assault. Id. On May 12, 1997, the Texas Board of Pardons and Paroles issued a Corrected Proclamation of Revocation and Warrant of Arrest, stating that Tolley's parole was revoked based upon the new conviction for possession of marijuana. Id. at 36. Before receiving notice of the parole revocation, Tolley was returned to the institutional division. Ex Parte Tolley, No. 18,438-02 at 42.
See TEX. CODE CRIM. PROC. ANN. art. 42.12 § 14(b)(2) (West 1997).
Tolley has not demonstrated that the principles of due process were in any way violated. The initial notice received by Tolley advised him of the charge against him and his rights in the revocation process. Moreover, the record demonstrates that the fact-finders' conclusion that Tolley had committed the charged violation was approved by the three member board and finds support in the evidence. All that is required for parole 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). A revocation proceeding is not a criminal trial. A criminal prosecution is governed by the reasonable doubt standard, while the state's burden of proof in a parole revocation hearing is considerably less. The two are therefore different. See Villareal v. United States Parole Commission, 985 F.2d 835, 839 (5th Cir. 1993). In this case, the evidence admitted at the parole revocation hearing clearly provided sufficient factual support for the finding that Tolley violated the charged condition of his parole, the commission of the new offense of possession of marijuana, warranting revocation. See United States v. McCormick, 54 F.3d 214, 219 n. 3 (5th Cir.), cert. denied, 516 U.S. 902 (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); Frick v. Quinlan, 631 F.2d 37, 39 (5th Cir. 1980) (same). Tolley received all the process to which he was due.
At the revocation hearing, the hearing officer based her finding that Tolley had violated the conditions of his release on the judgment and sentence entered in the new criminal conviction for possession of marijuana and on Tolley's own stipulation that he had been convicted for possession of marijuana. (Respondent's Answer at Exhibit C).
While it is true that Tolley was not first advised that he had been improperly sent to an SAFPF, due to his ineligibility for such a program, and that revocation of parole was then appropriate before the actual revocation and transfer took place, the lack of such written notice does not offend principles of due process, given the overwhelming evidence that Tolley violated the conditions of his release. See United States v. Kindred, 918 F.2d 485 (5th Cir. 1990). Moreover, even if error occurred, the lack of notice of the revocation action before Tolley's transfer is harmless, at best. See United States v. Pattman, 535 F.2d 1062 (8th Cir. 1976). While earlier notice may have resulted in Tolley seeking a timely reopening of his case before the Texas Board of Pardons and Paroles, there is no evidence whatever in the record that such action would have been successful.
In Texas, when a releasee receives notice that the Board has decided to revoke parole, the releasee has thirty days from the date of the Board's decision to request a reopening of the case for further development of factual or legal issues. See 37 TEX.ADMIN. CODE § 145.54.
In the state habeas corpus proceeding, Brock R. Kalmbach, the attorney who represented Tolley during the revocation proceeding, submitted an affidavit. See Ex Parte Tolley, No. 18,438-02, Supplemental Record at 5-6. In his affidavit, Kalmbach averred that due to the failure to receive timely notice of the revocation action Tolley "was therefore not granted the opportunity to reopen the hearing under subsection 145.54 and 145.54(a) of the Texas Administrative Codes." Id. at 5. However, in his affidavit, Kalmbach does not indicate any grounds that would have been raised in any timely request to reopen the proceedings. Nor does Tolley in this federal habeas corpus proceeding state any grounds that might have resulted in a successful request. Tolley states in his reply that he would have argued that (1) his revocation was unlawfully based upon his underlying offense, sexual assault, and (2) the Texas Board of Pardons and Paroles did have the authority to place him in a SAFPF. These claims are frivolous. (Reply at 5-7) (Docket Entry #20). It is true that an initial Proclamation of Revocation and Warrant of Arrest, revoking Tolley's parole, indicates that the revocation was based upon the new convictions of sexual assault and burglary of a habitation. (Exhibit O to Tolley's Petition) (Docket Entry #1). However, the error was corrected and a "Corrected Copy" was issued, clearly indicating that the new conviction was for possession of marijuana. See Ex Parte Tolley, No. 18.438-02 at 36. Moreover, it is clear that the subject revocation proceeding was based solely upon the new conviction for possession of marijuana. Further, in Texas, a defendant convicted of sexual assault is not eligible for a SAFPF. See TEX. CODE CRIM. PROC. ANN. art. 42.12 § 14(b)(2) (West 1997). Tolley did pursue an untimely request to reopen the proceedings, and the request was denied without explanation. See Exhibits R and S to Petition.
Tolley further alleges that the decision of the Board to revoke his parole was arbitrary, capricious and malicious. The Board's decision to revoke parole, after discovering that Tolley was ineligible for placement in a SAFPF, was clearly lawful. Once it was learned that it had acted contrary to Texas law, the Board had the option of either revoking Tolley's parole based upon the evidence presented at the revocation hearing, or continue Tolley on parole. It chose to revoke parole. During the state habeas corpus proceeding, the courts found that "[n]o evidence exist[ed] that the failure of [Tolley] to receive notice was intentional or performed in bad faith." Ex Parte Tolley, No. 18,438-02 at 65, 67. This Court deems this presumption correct, and Tolley has not rebutted the presumption by clear and convincing evidence. 28 U.S.C. § 2254 (e)(1). Thus, because the Texas Board of Pardons and Paroles acted in good faith, Tolley was not deprived of a fundamentally fair revocation proceeding. But see United States v. Tyler, 605 F.2d 851 (5th Cir. 1979) (finding of denial of fundamental fairness in probation revocation process).
In conclusion, the state courts' determination that Tolley was not entitled to post conviction relief is not in conflict with clearly established federal law or based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. Relief must therefore be denied pursuant to 28 U.S.C. § 2254(d).
The Texas Court of Criminal Appeals' denial of Tolley's state application for writ of habeas corpus without written order constitutes an adjudication on the merits. See Jackson v. Johnson, 150 F.3d 520, 524 (5th Cir. 1998); Ex Parte Torres, 943 S.W.2d 469, 472 (Tex.Crim.App. 1997).
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 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 hereby extending the deadline within which to file, not merely place in the mail, specific written objections to the United States Magistrate Judge's proposed findings, conclusions and recommendation until November 27, 2000. Pursuant to Douglass v. United Services Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc), failure to file specific written objections within the specified time shall bar a de novo determination by the district court of any finding of fact or conclusion of law and shall bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any unobjected-to proposed factual findings and legal conclusions accepted by the district court.
ORDER SETTING DEADLINE FOR OBJECTIONS TO PROPOSED FINDINGS, CONCLUSIONS AND RECOMMENDATION
Pursuant to Section 636, Title 28 of the United States Code, it is hereby ORDERED that each party is granted until November 27, 2000, to serve and file, not merely place in the mail, 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, a 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, be and hereby is returned to the docket of the United States District Judge.