Opinion
No. 4:02-CV-333-A
July 25, 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 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 Henry Dwayne Fowler, prisoner#0377255, is in custody at the Tarrant County Jail.
Respondent Dee Anderson is the Sheriff of Tarrant County, Texas.
C. FACTUAL AND PROCEDURAL HISTORY
On July 30, 1993, Fowler pleaded guilty to delivery of a controlled substance. The trial court deferred adjudicating Fowler's guilt and placed him on five years' community supervision. (1 State Habeas R. at 20.) On August 7, 1998 after Fowler violated the conditions of his community supervision, the trial court adjudicated Fowler's guilt and sentenced him to eight years' confinement. ( Id. at 38.) On August 16, 1999, Fowler filed a state application for writ of habeas corpus, which the Texas Court of Criminal Appeals denied without written order. Ex parte Fowler, No. 42,886-01 (Tex.Crim.App. Sept. 22, 1999) (not designated for publication). On August 28, 2000, he was released on parole. (2 State Habeas R. at 12-13.)
On May 8, 2001, a warrant was issued for Fowler's arrest based on his violation of the terms of his parole. ( Id. at 20.) On February 28, 2002, Fowler filed a second state habeas corpus application, which the Texas Court of Criminal Appeals denied on the findings of the trial court. Ex parte Fowler, 42,886-02 (Tex.Crim.App. Mar. 13, 2002) (not designated for publication). Fowler filed the instant federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Fort Worth Division, on April 1, 2002. On April 16, 2002, Fowler pleaded guilty to possession of less than one gram of cocaine, and the trial court, under a plea-bargain agreement, sentenced him to nine months' confinement. (Resp't Reply at Attach. p. 3.) On April 30, 2002, a revocation hearing was held, and the hearing officer recommended that Fowler's parole be revoked. ( Id. at Attach. p. 4.) On May 9, 2002, the Board of Pardons and Paroles revoked Fowler's parole. ( Id. at Attach. p. 6.)
D. ISSUES
Fowler argues that because his parole revocation hearing was not held within 120 days after the arrest warrant was issued, he should be released and application of any exception to this time limit violates the Ex Post Facto Clause. He further asserts that he was unlawfully denied release on bond pending the revocation hearing.
E. RULE 5 STATEMENT
Anderson has not addressed whether Fowler's federal petition is unexhausted for failure to exhaust the available state remedies. However, Fowler raised the instant claims in his second state habeas corpus application and, thus, exhausted his state remedies. (2 State Habeas R. at 41-42.)
F. DISCUSSION
1. Legal Standard for Granting Habeas Corpus Relief
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 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).
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).
2. Timeliness of Hearing
Fowler argues that his revocation hearing was unlawful and void because it was held more than 120 days after the arrest warrant was issued. He relies on former article 42.18, section 14(a) of the Code of Criminal Procedure for his assertion that the hearing is void if held later than the 120th day after arrest. However, the current version of this statute, which applies to Fowler, provides that a revocation hearing was not required until after his subsequent possession-of-cocaine conviction was adjudicated. TEX. GOV'T CODE ANN. § 508.282(a)(1)(B). Thus, Fowler's revocation hearing, which was held 14 days after he was convicted of possession of less than one gram of cocaine, was timely. Cf. Beck v. Wilkes, 589 F.2d 901, 903 (5th Cir.) (holding that six-month delay between defendant's arrest and revocation hearing did not violate due process), cert. denied, 444 U.S. 845 (1979). Further, application of the new revocation statute regarding the timeliness of revocation hearings does not offend the Ex Post Facto Clause. Portley v. Grossman, 444 U.S. 1311, 1312-13 (Rehnquist, Circuit Justice 1980); Dobbert v. Florida, 432 U.S. 282, 293-94 (1977); Simpson v. Ortiz, 995 F.2d 606, 610 (5th Cir.), cert. denied, 510 U.S. 983 (1993).
Act of May 28, 1993, 73rd Leg., R.S., ch. 988, § 10.08, art. 42.18, 1993 Tex. Gen. Laws. 4277, 4312, amended by Act of May 25, 1995, 74th Leg., R.S., ch. 321, § 2.010, art. 42.18, 1995 Tex. Gen. Laws 2774, 2809; amended by Act of May 16, 1997, 75th Leg., R.S., chs. 429, § 2, art. 42.18, 1997 Tex. Gen. Laws 1687, 1687-88 and recodified by Act of May 8, 1997, 75th Leg., R.S., ch. 165, § 12.01, sec. 508.282, 1997 Tex. Gen. Laws 327, 435; repealed by Act of April 23, 1999, 76th Leg., R.S., ch. 62, § 10.39(6), art. 42.18, 1999 Tex. Gen. Laws 127, 334 and amended by Act of April 23, 1999, 76th Leg., R.S., ch. 62, § 10.33, sec. 508.282, 1999 Tex. Gen. Laws 127, 332-33 (current version at TEX. GOV'T CODE ANN. § 508.282 (Vernon Supp. 2002)).
3. Denial of Bond
Fowler also alleges that the denial of release on bond pending his revocation hearing violated his constitutional rights. However, the different classification between bond for prisoners before conviction and bond for convicted felons who are arrested for supervision violations does not violate the Equal Protection Clause. Ex parte Harris, 946 S.W.2d 79, 80-81 (Tex.Crim.App. 1997); Ex parte Ainsworth, 532 S.W.2d 640, 640-41 (Tex.Crim.App. 1976); Greenwood v. State, 948 S.W.2d 542, 546 (Tex.App.-Fort Worth 1997, no pet.); see also Paprskar v. Estelle, 566 F.2d 1277, 1279 (5th Cir.), cert. denied, 439 U.S. 843 (1978). Further, the subsequent revocation hearing and determination to revoke Fowler's parole moots this issue. Cf. Ortez v. Chandler, 845 F.2d 573 575 (5th Cir. 1988) (holding appeal of denial of bond pending deportation hearing moot once alien deported); United States v. O'Shaughnessy, 772 F.2d 112, 113 (5th Cir. 1985) (op. on reh'g) (holding subsequent conviction rendered issue regarding pretrial bail moot).
4. Summary
Fowler is lawfully restrained because he has failed to prove that he has been denied a constitutionally protected interest. Accordingly, the state courts' determination that Fowler 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
Fowler'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 August 15, 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 (5th Cir. 1990).
IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until August 15, 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, 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.