Opinion
Civil Action No. 1:01-CV-159-C
March 29, 2002
ORDER
The Court has considered the Petition for Writ of Habeas Corpus filed by Petitioner, Kenneth Lee, pursuant to 28 U.S.C. § 2254. Respondent filed an answer, together with relevant state court records, and Petitioner filed a response.
Respondent has lawful and valid custody of Petitioner pursuant to a judgment and sentence of the 39th District Court of Haskell County, Texas, in Cause No. 5450. Petitioner was indicted for attempted murder with a firearm. He entered a plea of not guilty and was tried by a jury. He was found guilty on May 6, 1993, of the lesser included offense of aggravated assault. Punishment was assessed at 8 years' incarceration.
Petitioner is not challenging his conviction and sentence; rather, he challenges the parole board's denial of his release to mandatory supervision and/or parole. He filed one state habeas application raising the same issues asserted in his federal habeas petition. The Texas Court of Criminal Appeals denied the application without written order on May 2, 2001.
The Court has reviewed Petitioner's § 2254 petition, the Respondent's answer, the state court records, and Petitioner's response, and finds that Petitioner's habeas petition should be denied.
Petitioner is not eligible for release to mandatory supervision.
Texas law does not create a constitutionally-protected liberty interest in parole; rather, it creates nothing more than a hope or mere possibility of early release. Gilbertson v. Texas Board of Pardons and Paroles, 993 F.2d 74, 75 (5th Cir. 1993). See Orellana v. Kyle, 65 F.3d 29, 32 (5th Cir. 1995) (holding that Texas parole laws do not create constitutionally protected liberty interests).
Petitioner claims that changes in the parole laws violated the Ex Post Facto Clause of the United States Constitution. "[T]he focus of the ex post facto inquiry is. . . on whether any such change alters the definition of criminal conduct or increases to penalty by which a crime is punishable." California Dep't of Corrections v. Morales, 514 U.S. 499, 506 n. 3 (1995).
Procedural changes in the parole laws, "even if they work to the disadvantage of a criminal defendant, do not violate the Ex Post Facto Clause." Creel v. Kyle, 42 F.3d 955, 957 (5th Cir. 1995) (quoting Collins v. Youngblood, 497 U.S. 37 (1990)); Allison v. Kyle, 66 F.3d 71 (5th Cir. 1995).
Further "it follows that because [a prisoner] has no liberty interest in obtaining parole in Texas, he cannot complain of the constitutionality of procedural devices attendant to parole decisions." Orellana v. Kyle, 65 F.3d 29, 31 (5th Cir. 1995)
For the reasons stated above and the law and facts set forth in Respondent's answer, the Court finds that Petitioner's petition for writ of habeas corpus should be denied and this cause dismissed with prejudice.
SO ORDERED.
All relief not expressly granted is denied and any pending motions are denied.