Kirby v. Cockrell

Full title: DUKE KIRBY a.k.a. LAVERNE KIRBY, PETITIONER, v. JANIE COCKRELL, DIRECTOR…

Court: United States District Court, N.D. Texas, Fort Worth Division

Date published: May 10, 2002

Civil Action No. 4:01-CV-876-A (N.D. Tex. May. 10, 2002)

Opinion

Civil Action No. 4:01-CV-876-A

May 10, 2002

FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER

CHARLES BLEIL, United States Magistrate Judge.

This cause of action was referred to the United States Magistrate Judge under 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 Duke Kirby a.k.a. Laverne Kirby, TDCJ-ID #1087037, is in custody of the Texas Department of Criminal Justice, Institutional Division, and is presently incarcerated in the Fort Stockton Unit in Fort Stockton, Texas.

Respondent Janie Cockrell is the Director of the Texas Department of Criminal Justice, Institutional Division.

C. FACTUAL AND PROCEDURAL HISTORY

On August 9, 1993, Kirby pleaded guilty to burglary of a building, and the trial court sentenced him to ten years' confinement. (Resp't Answer at Ex. A.) Kirby did not appeal the trial court's judgment. (Federal Pet. at 2.)

On April 24, 1997, Kirby was released to mandatory supervision. (Resp't Answer at Ex. B.) On December 1, 2000, the Parole Board issued a "blue warrant"¹ for Kirby and began the process of revoking his parole because he had been charged with robbery. ( Id.) On June 4, 2001, Kirby filed a state application for habeas corpus relief, attacking the failure of the Parole Board to hold a revocation hearing within 120 days after his arrest and the denial of bond pending a revocation hearing. (State Habeas R. at 7.) The Court of Criminal Appeals denied the applications without written order on October 3, 2001. Ex parte Kirby, No. 9,393-10 (Tex.Crim.App. Oct. 3, 2001) (not designated for publication).²

1 A "blue warrant" is an arrest warrant issued when a parolee is suspected of violating the conditions of his parole. TEX. GOV'T CODE ANN. § 508.252 (Vernon Supp. 2002); Franklin v. Kyle, 899 S.W.2d 405, 406 n. 1 (Tex.App.-Waco 1995, no pet.).

2 According to Cockrell, Kirby's nine prior state habeas applications are irrelevant to the present petition. (Resp't Answer at 3 n. 2.)

Kirby 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 November 5, 2001. On November 19, 2001, Kirby filed a second federal habeas corpus petition, arguing that his release on parole was unconstitutional because the release contract was void, he was required to forfeit all earned good-conduct time credits, and he was denied counsel when he signed the parole contract. He further asserted that his 1993 guilty plea was involuntary and counsel was ineffective when he pleaded guilty in 1993. Kirby v. Cockrell, 4:01-CV-920-Y (N.D. Tex. filed Nov. 19, 2001).³ On February 1, 2002, Kirby was convicted of burglary of a habitation and sentenced to five years' confinement. (Resp't Answer at Ex. B.) On February 19, 2002, a revocation hearing was held, and Kirby's mandatory supervision was revoked.⁴

3 This case is still pending in this court. Cockrell asserted, in response to an inquiry by this court, that these two petitions should not be consolidated because the later-filed petition attacks the circumstances surrounding the 1997 release certificate and his 1993 guilty plea, while the current petition attacks the failure to hold a timely revocation hearing after he was arrested in 2000. This court agrees and holds consolidation is not warranted.

4 This fact was confirmed by phone with the Texas Department of Criminal Justice.

D. ISSUES

Kirby argues that because his revocation hearing was not held within 120 days after the blue 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 is unlawfully being denied release on bond pending a revocation hearing.

E. RULE 5 STATEMENT

Cockrell believes Kirby has sufficiently exhausted available state remedies on all issues presented and, thus, does not move for dismissal on this ground.

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 (5^th 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 (5^th 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

Kirby argues that his revocation hearing was unlawful and void because it was held more than 120 days after he was arrested. (Pet'r Mem. in Supp.) 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 120^th day after arrest.⁵ However, the current version of this statute, which applies to Kirby's December 1, 2000 arrest, provides that a revocation hearing was not required until after the burglary-of-a-habitation conviction was adjudicated. TEX. GOV'T CODE ANN. § 508.282(a)(1)(B). Thus, Kirby's revocation hearing, which was held 18 days after he was convicted of burglary of a habitation, was timely. Cf. Beck v. Wilkes, 589 F.2d 901, 903 (5^th 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 (5^th Cir.), cert. denied, 510 U.S. 983 (1993).

5 Act of May 28, 1993, 73^rd Leg., R.S., ch. 988, § 10.08, art. 42.18, 1993 Tex. Gen. Laws. 4277, 4312, amended by Act of May 25, 1995, 74^th Leg., R.S., ch. 321, § 2.010, art. 42.18, 1995 Tex. Gen. Laws 2774, 2809; amended by Act of May 16, 1997, 75^th Leg., R.S., chs. 429, § 2, art. 42.18, 1997 Tex. Gen. Laws 1687, 1687-88 and recodified by Act of May 8, 1997, 75^th Leg., R.S., ch. 165, § 12.01, sec. 508.282, 1997 Tex. Gen. Laws 327, 435; repealed by Act of April 23, 1999, 76^th 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, 76^th 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

Kirby also alleges that the denial of release on bond pending his revocation hearing violated his equal protection rights. (Pet'r Br. in Supp.) 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 (5^th Cir.), cert. denied, 439 U.S. 843 (1978). Further, the subsequent revocation hearing and determination to revoke Kirby's mandatory supervision moots this issue. cf. Ortez v. Chandler, 845 F.2d 573, 575 (5^th 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 (5^th Cir. 1985) (op. on reh'g) (holding subsequent conviction rendered issue reggarding pretrial bail moot).

4. Summary

Kirby is lawfully restrained because he has failed to prove that he has been denied a constitutionally protected interest. Accordingly, the state courts' determination that Kirby 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

Kirby'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 May 30, 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 Servs. Auto Ass'n, 79 F.3d 1415, 1428-29 (5^th Cir. 1996) (en banc op. on reh'g); Carter v. Collins, 918 F.2d 1198 (5^th Cir. 1990).

IV. ORDER

Under 28 U.S.C. § 636, it is ORDERED that each party is granted until May 30, 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.