Opinion
NO. 4:01-CV-755-A
March 28, 2002
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 of the United States Code § 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 Title 28 of the United States Code § 2254.
B. PARTIES
Petitioner Michael Jerome Coleman, TDCJ-ID #628760, is in custody of the Texas Department of Criminal Justice, Institutional Division (TDCJ-ID).
Respondent Janie Cockrell is the Director of the TDCJ-ID.
C. FACTUAL AND PROCEDURAL HISTORY
In 1992, Coleman pled guilty to two charges of delivery of cocaine and was sentenced to twenty years' confinement in each case, the sentences to run concurrently. Ex parte Coleman, No. 49, 703-01, at 16-24 No. 49, 703-02, at 16-24 (Tex.Crim.App. Aug. 15, 2001) (not designated for publication). On July 2, 1997, Coleman was released on parole. (Resp't Answer, Exh. A.) Subsequently, a warrant issued and Coleman was arrested for a violation of the terms of parole. ( Id. Exh. B.) On July 18, 2000, his parole was revoked by the Texas Board of Pardons and Paroles. ( Id. Exh. C.)
Coleman filed a state application for writ of habeas corpus in each case challenging the revocation of parole. Ex parte Coleman, Nos. 49,703-01 49,703-02. The Texas Court of Criminal Appeals denied relief in each instance without written order. Id. at cover. Coleman filed these federal petitions for writ of habeas corpus in the United States District Court for the Northern District of Texas, Fort Worth Division, on September 5, 2001. Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (providing pro se habeas petition filed when petition is delivered to prison authorities for mailing).
Coleman filed two virtually identical petitions, apparently one for each trial court cause number, raising the same issues concerning revocation of his parole.
D. ISSUES
Coleman raises three grounds for relief:
(1) He was denied the right to appeal the Board's decision to revoke his parole.
(2) He was denied due process because he was not served with written notice of the revocation of parole.
(3) He was denied due process because the board did not follow the proper procedures in the disposition of the parole hearing.
E. RULE 5 STATEMENT
Cockrell believes that Coleman has sufficiently exhausted his state remedies on all the issues presented. (Resp't Answer at 4.)F. DISCUSSION 1. 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 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 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 Supreme Court of the United States 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 federal law if it correctly identifies the applicable rule but applies it unreasonably to the facts of the case. Williams, 529 U.S. at 407-08.
Further, federal courts give great deference to a state court's factual findings. Hill, 210 F.3d at 485. 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 the presumption of correctness by clear and convincing evidence. 28 U.S.C. § 2254 (e)(1). 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).
2. Coleman's Grounds
In his first ground, Coleman contends he was denied his right to appeal the revocation of his parole because he was not served with written notice of the board's disposition of his case following the parole hearing and was unaware that his parole had been revoked "until he was back in TDCJ-ID." (Federal Pet. at 7.)
When reviewing applications for habeas corpus relief, federal courts will only review allegations of deprivations of federal rights. 28 U.S.C. § 2254 (a). 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. Allison v. Kyle, 66 F.3d 71, 74 (5th Cir. 1995); Orellena v. Kyle, 65 F.3d 29, 32 (5th Cir. 1995), cert. denied, 516 U.S. 1059 (1996). Once granted, however, a parolee is entitled to certain due process requirements before his parole is revoked on the basis of a parole violation. Morrissey v. Brewer, 408 U.S. 471, 481-90 (1972).
The minimum requirements of federal due process include: (1) written notice of the claimed violations of parole; (2) disclosure to the parolee of evidence against him; (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. Id. at 489.
The record reveals that on February 20, 2001, Coleman received written notice of the charged parole violation. (Resp't Answer, Exh. D at 8-9.) Coleman was charged with failing to report to his parole officer Michael Bell on December 20, 2000. ( Id. at 8.) Coleman was also advised in writing of his rights in the revocation process. ( Id. at 7.) He requested a parole revocation hearing and was advised that the hearing would be held at the Tarrant County Jail on March 2, 2001. ( Id. at 9.) At the hearing, Coleman admitted he failed to report on the specified date and was given an opportunity to explain his failure to report. ( Id. at 4-5.) He was further given the opportunity to confront and cross-examination Bell. ( Id. at 5.) According to the written hearing report of the hearing officer:
BELL verified that the OFFENDER'S Instant Offense is Delivery of a Controlled Substance and that he is technically eligible for ISF placement; however, BELL noted the OFFENDER has twice previously been in an ISF facility and on both occasions it was for Failure to Report along with other technical violations. It is noted that the OFFENDER failed to report on this last occasion, approximately one week after being released from the ISF facility. ( Id.)
After reviewing the evidence, including Coleman's admission, the hearing officer found that Coleman had committed the charged violation and recommended that parole be revoked. ( Id. at 6.) The Board of Pardons and Paroles agreed, and on March 13, 2001, Coleman's parole was revoked. ( Id., Exh. C, Exh. D at 1-2.)
Coleman alleges that he did not receive notice of the revocation until April 17, 2001, after the time had expired for requesting a reopening of his case, and that he was thus denied his right to appeal the Board's decision. (Federal Pet. at 7; Pet'r Mem. in Support at 2-3.) This court is unaware of any state statutory "right to appeal" the Board's decision to revoke. If revoked, a parolee is afforded the right to request that the Board reopen the revocation hearing within 30 days from the date of the Board's decision. 37 TEX. ADMIN. CODE § 145.54 (West 2002) (under the current version a parolee has 45 days to request a reopening of the case). However, there is no such corresponding federal constitutional right. 28 U.S.C. § 2254 (a); Rose v. Hodges, 423 U.S. 19, 21 (1975) (providing that necessary predicate for granting federal habeas relief is a violation of the Constitution, laws, or treaties of the United States); Wallace v. Texas Bd. Of Pardons and Paroles, No. 4:00-CV342-A, 2001 WL 360999, at *6 (N.D.Tex. Feb. 4, 2001) (not designated for publication) (providing improper denial of motion to reopen parole hearing is not cognizable in federal habeas proceeding). Thus, Coleman is not entitled to relief under this ground.
Under § 145.54, a reopening of a case shall be granted on the following grounds only:
(1) that there is new, relevant, competent evidence which is of probative value on a material issue of fact or law, not merely collateral or cumulative, which, in the exercise of reasonable diligence, was unavailable at the time of the hearing;
(2) that the findings of fact or conclusions of law, or both:
(A) are not supported by a preponderance of the credible evidence; or
(B) are contrary to the law; or
(3) that the procedures followed in the hearing, review, or disposition of the case are violations of the law.
37 TEX. ADMIN. CODE § 145.54(a)(1)-(3).
Coleman claims under his second ground that because he did not receive timely notice of the revocation of his parole or a written statement as to the reasons for the revocation, he was denied due process and entitled to reinstatement of his parole under § 145.71. (Federal Pet. at 7 Mem. in Support at 2-3; Pet'r Resp. to Resp't Answer at 2-4; Resp't Answer, Exh. E.) 37 Tex. Admin. Code § 145.71 (West 2002). Assuming Coleman was entitled to a written statement as to the reasons for revoking parole under Morrissey, this fact does not constitute an automatic due process violation. Villarreal v. United States Parole Com'n, 985 F.2d 835, 837 (5th Cir. 1993); Davis v. Cockrell, No. 4:00-CV-1767-A, 2001 WL 1388026, at *5-6 (N.D. Tex. Nov. 5, 2001) (not designated for publication). The parolee must show the delay or failure in providing the statement resulted in actual prejudice to him. Williams v. Johnson, 171 F.3d 300, 307 (5th Cir.), cert. denied, 528 U.S. 882 (1999).
Under § 145.71, a parolee may request reinstatement of a revoked parole under "exceptional circumstances." 37 TEX. ADMIN. CODE § 145.71(b).
Coleman has not demonstrated that he would have been entitled to a reopening of his case under § 145.54 had he received timely notice of the revocation of his parole. Further, the record reflects that on May 1, 2001, Coleman sent a request to the Board of Pardons and Paroles to reopen his case or to reinstate his parole due to the delay in providing written notice of the revocation. (Resp't Answer, Exh. F.) The Board treated his request, although untimely filed, as a "Motion to Reopen Hearing." ( Id.) After considering the motion, however, the Board denied relief, not on the ground that the procedures used in his case violated the law, but on the ground that Coleman had failed to allege "new, relevant, competent information" warranting a reconsideration of the Board's decision. Moreover, Coleman admitted to the alleged violation of parole and was clearly aware that his admission, in conjunction with Bell's testimony, served as the basis for revoking his parole.
Finally, under his third ground, Coleman alleges he is being illegally detained because the Board did not follow the proper procedures regarding the disposition of his revocation hearing by failing to provide him with a written statement as to the evidence relied on and reasons for revoking parole. (Pet'r Resp. to Resp't Answer at 4-5.) In light of our discussion regarding Coleman's first two grounds, this claim is without merit.
In sum, Coleman is lawfully restrained because he has failed to prove that a federal due process violation occurred in the disposition of his parole hearing. The state court's determination on the claims presented does not appear to be contrary to or involve an unreasonable application of clearly established federal law nor does it appear to be based on an unreasonable determination of facts in light of the evidence presented in the state court proceedings. The state court's determination is thus entitled to a presumption of correctness.
II. RECOMMENDATION
Coleman'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 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, not merely place in the mail, specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation until April 18, 2002. 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. See Douglass v. United Serv's. Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc op. on reh'g); Carter v. Collins, 918 F.2d 1198, 1203 (5th Cir. 1990).
IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until April 18, 2002, 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.