Opinion
No. 3:01-CV-2599-D
August 5, 2003
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
This case has been referred to the United States Magistrate Judge pursuant to 28 U.S.C. § 636(b) and a standing order of reference from the district court. The Findings, Conclusions and Recommendation of the Magistrate Judge follow:
I. Parties
Petitioner is an inmate in the Texas Department of Criminal Justice, Institutional Division (TDCJ-ID). He brings this petition for habeas corpus relief pursuant to 28 U.S.C. § 2254. Respondent is Janie Cockrell, Director of TDCJ-ID.
II. Background
On April 25, 1990, Petitioner pled not guilty to the felony offense of burglary of a vehicle. State v. Wooderts, No. F-89-86437V (292nd Dist Court Dallas County, Tex. April 25, 1990). A jury found him guilty and he was sentence to thirty-five years in the custody of TDCJ-ID. Id. Petitioner was paroled on March 12, 1993. Petitioner was convicted of conspiracy to alter and tamper with motor vehicles, altering and tampering with motor vehicles or parts, and trafficking in motor vehicle parts in violation of 18 U.S.C. § 371, 511 and 2, and 18 U.S.C. § 2321. United States v. Wooderts, No. 3:97-CR-054-D (N.D. Tex. Feb. 28, 1998). The Texas Board of Pardon and Paroles revoked Petitioner's parole on April 13, 1998. Ex Parte Wooderts, Supp. Tran. at 8. He has since been denied parole on two occasions.
Petitioner challenges the denial of his parole and the retroactive application of Texas parole laws. (Fed. Writ Pet,. at 7.) On September 21, 2001, Petitioner filed an application for a state writ of habeas corpus raising these claims. Ex parte Wooderts, No. 39, 609-04 at 2, 8. On November 7, 2001, the Texas Court of Criminal Appeals denied his application without written order. Id. at Cover.
Petitioner asserts the following claims:
1. The Texas Board of Pardons and Paroles denied his parole because he filed a lawsuit against a state employee.
2. The Texas Board of Paroles has applied 1994 laws that prevent him from being released on parole in violation of the United States Constitution's prohibition of the application of ex post facto laws.II. Discussion (A.) Statute of Limitations
Respondent contends Petitioner's claims are barred by the statute of limitations. Petitioner filed his § 2254 on November 30, 2001, after the effective date of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Therefore, the AEDPA governs the present petition. See Lindh v. Murphy, 521 U.S. 320 (1997). The AEDPA establishes a one-year statute of limitations for state inmates seeking federal habeas corpus relief. See 28 U.S.C. § 2244(d).
Section 2244(d) provides as follows:
(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of —
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if the right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.
(2) The time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection.
The date on which Petitioner knew or should have known the factual predicate of his claims governs the limitation period in this case. See 28 U.S.C. § 2244(d)(1)(D); see also Richardson v. Johnson, No. 3:00-C V-2695-D, 2001 WL 869644, at *2 (N.D. Tex. July 25, 2001). Petitioner challenges the denial of his parole on February 26, 2001. Respondent contends that Petitioner should have known he would be denied parole in 2001 because his parole was previously denied in 1999. Respondent claims that, for this reason, the statute of limitations commenced in July of 1999. This argument is without merit. The facts underlying Petitioner's claim are that the Texas Board of Pardon and Parole denied him parole on February 21, 2001. Petitioner then had one year, or until February 26, 2002, to file his federal petition for habeas corpus relief. Petitioner filed his habeas petition on September 21, 2001. The petition is therefore timely. Accordingly, the Court will now consider the merits of Petitioner's claims.
(B.) Denial of Parole as Retaliation
Petitioner claims that the Texas Board of Pardons and Paroles denied his parole in retaliation for his filing a lawsuit against a state employee. (Fed. Writ Pet., at 7.) Petitioner argues that it must have been retaliation because (1) he was released on parole in 1993 and (2) he should have been released again in 2001 (despite the fact that his parole was denied in 1999). Petitioner fails to recognize that his conviction of a federal crime increased his criminal history. Moreover, Petitioner has no right to release on parole because under Texas law, parole is not mandatory, but discretionary. Madison v. Parker, 104 F.3d 765, 768-69 (5th Cir. 1997); Allison v. Kyle, 66 F.3d 71, 74 (5th Cir. 1995). Petitioner presents only conclusory allegations that the Texas Board of Pardons and Parole was retaliating against him. Conclusory allegations are insufficient to entitle a petitioner to relief. Ross v. Estelle, 672 F.2d 1008, 1001 (5th Cir. 1983). The state court decisions to deny relief on this claim did not result 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. It did not result in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. Petitioner has shown no right to relief on this claim.
(C.) Use of Ex Post Facto Parole Laws
Petitioner alleges that the Texas Board of Pardons and Paroles applied parole laws that were enacted in 1994 to deny his parole in violation of the ex post facto clause of the Constitution. Petitioner states that he was previously paroled on March 12, 1993, despite his criminal history. Petitioner alleges that the parole board denied his subsequent release to parole based on retroactive application of the reasons for denial of parole, including his criminal history and the nature of his offense. Petitioner concludes that the reasons for denial were not in effect at the time he committed the offense for which he was convicted and new laws were retroactively applied to him.
Article I, section 10 of the United States Constitution prohibits a State from passing any ex post facto laws. U.S. CONST., art. I. The United States Supreme Court held in California Department of Corrections v. Morales, 514 U.S. 499, 504 (1995), that the ex post facto clause is aimed at laws that retroactively alter definitions of crimes or increase punishment for criminal acts. The Court also stated that ex post facto clause does not forbid all legislative changes that have any conceivable risk of affecting a prisoner's punishment. Id. at 508. The Fifth Circuit held that no ex post facto violation occurred when a parole date was set on the basis of guidelines in effect at the time that prisoner applied for parole rather than the rules in effect at the time the crime was committed. Sheary v. United States Parole Commission, 822 F.2d 556, 558 (5th Cir. 1987). Also, for a statute to be construed as ex post facto, it must be retroactive and produce "a sufficient risk of increasing the measure of punishment attached to the covered crimes." Hallmark v. Johnson, 118 F.3d 1073, 1078 (5th Cir. 1997) (citing Weaver v. Graham, 450 U.S. 24, 30 (1981)).
In this case, Petitioner can not show that an ex post facto violation occurred. State law regarding parole eligibility criteria remains unchanged since the Petitioner's offense. R. TEX. BD. PARDONS PAROLES, Chapter 145, § 145.2 Standard Parole Guidelines. Both the current parole statutes and the statutes in place when Petitioner committed his offense provide, inter alia, that "offense severity" and "nature of offense" are guidelines to assist the parole board in determining whether to exercise its discretion to grant parole. Parole guidelines did not increase Petitioner's punishment or redefine his crime. Therefore, Petitioner can not show that an ex post facto violation occurred. Petitioner has not shown that the state court decisions to deny habeas corpus relief 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 resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court proceedings. Petitioner's claim should be denied.
RECOMMENDATION :
The Court recommends that the petition for a writ of habeas corpus be denied.
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO OBJECT
The United States District Clerk shall serve a copy of these findings and recommendations on the parties. Pursuant to 28 U.S.C. § 636 (b)(1), any party who desires to object to these findings and recommendations must file and serve written objections within ten (10) days after being served with a copy. A party filing objections must specifically identify' those findings and recommendations to which objections are being made. The District Court need not consider frivolous, conclusory or general objections. The failure to file such written objections to these proposed findings and recommendations 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, the failure to file written objections to proposed findings and recommendations within ten (10) 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. See Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th Cit. 1996) (en banc).