Opinion
No. 3:02-CV-2208-G.
September 7, 2004
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b) and an order of the District Court, this case has been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge follow:
Parties
Petitioner is an inmate in the custody of the Texas Department of Criminal Justice, Criminal Institutions Division (TDCJ-CID). Respondent is Douglas Dretke, Director of TDCJ-CID.
Procedural History
Petitioner was convicted of the first-degree felony offense of burglary of a habitation and sentenced to twelve years in prison. State v. Moten, No. F88-78145-L (Crim. Dist. Ct. No. 5, Dallas County, Tex. Feb. 12, 1988). Petitioner was released on parole on January 26, 1995. On July 5, 2001, Petitioner was issued a pre-revocation warrant for his arrest. Further, TDCJ-CID executed the July 5, 2001, pre-revocation warrant. Petitioner was returned to the custody of TDCJ-CID on September 7, 2001. Petitioner requested a revocation hearing, and it was held on October 31, 2001, before the Texas Board of Pardons and Paroles ("the Board"). On November 15, 2001, the Board revoked Petitioner's release on parole.
On June 19, 2002, Petitioner filed a state application for habeas corpus relief challenging the revocation of his release on parole. Ex parte Moten, No. 53,165-01 (Tex.Crim.App. Sept. 12, 2002). The Texas Court of Criminal Appeals denied his application without written order. Id.
Exhaustion of State Court Remedies
Respondent contends that Petitioner has not exhausted his state court remedies on the issue of presenting mitigating evidence from the parole officer. Respondent claims that Petitioner has bypassed the state courts and attempted to present an original claim for relief to the federal courts before the state courts have had an opportunity to rule on and correct any constitutional errors that might have occurred. However, Respondent argues that it would be futile to require Petitioner to return to state court to file yet another writ because it would be an abuse of the writ. Instead, Respondent argues that the claim is procedurally defaulted.The Court finds that Petitioner sufficiently raised this issue in his state habeas corpus application. See Ex Parte Moten, at 13. Accordingly, the Court finds that Petitioner has exhausted his state court remedies.
Issues
Petitioner raises the following claims:
1. He was denied a preliminary parole revocation hearing;
2. Prior to his final parole hearing, he was transferred over 600 miles from the Byrd Unit in Huntsville, Texas, to the Smith Unit in Lamesa, Texas, in violation of Section 508.284 of the Texas Government Code;
3. He was denied the opportunity to confront his parole officer, who was absent from the hearing, preventing him from providing mitigating facts to support his contention that he should be continued on parole; and
4. He was denied counsel.
Standard of Review
This case is governed by the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). The pertinent terms of the AEDPA provide:
(d) An application for 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 the adjudication of the claim —
(1) 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
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in a State court proceeding.28 U.S.C.A. § 2254(d). The AEDPA applies to all federal habeas corpus petitions that were filed after April 24, 1996, provided that they were adjudicated on the merits in state court. Lindh v. Murphy, 521 U.S. 320, 326 (1997). Resolution on the merits in the habeas corpus context is a term of art that refers to the state court's disposition of the case on substantive rather than procedural grounds. Green v. Johnson, 116 F.3d 1115, 1121 (5th Cir. 1997).
Under the "contrary to" clause, a federal habeas court may grant the writ of habeas corpus 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 from the United States Supreme Court on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 412 (2000). Under the "unreasonable application" clause, a federal court may grant a writ of habeas corpus if the state court identifies the correct governing legal principle from the United States Supreme Court's decisions, but unreasonably applies that principle to the facts of the prisoner's case. Williams, 529 U.S. at 412. Clearly established federal law "refers to the holdings, as opposed to the dicta, of [the Supreme] Court's decisions as of the time of the relevant state-court decision." Williams, 529 U.S. at 412.
Analysis Denial of a Preliminary Parole Revocation Hearing
A parolee's due process rights regarding the revocation of parole are set out in Morrissey v. Brewer, 408 U.S. 471, 485 (1972). The parole commission is required to hold a preliminary hearing as promptly as is convenient to determine probable cause. Id. In this case, Petitioner did not request a preliminary hearing. (Exhibit B to Respondent's Answer at 10.) Moreover, Petitioner does not challenge the final parole revocation, but instead argues that he was not given a preliminary examination. In Collins v. Turner, 599 F.2d 657, 658 (5th Cir. 1979), the court held that when a petitioner is given an evidentiary hearing prior to the final revocation of his parole, the preliminary hearing is not necessary. In such a case, the preliminary hearing had no relation to his incarceration. Id. Petitioner had an evidentiary hearing before his parole was revoked. His present incarceration is the result of the final revocation hearing, and the lack of a preliminary hearing is at most, harmless error. Petitioner's claim is without merit.
Transfer
Petitioner claims that he was transferred prior to his revocation hearing in violation of Section 508.284 of the Texas Government Code. Respondent acknowledges that, while the transfer may have been a mistake, Petitioner is not claiming that the transfer violated the United States Constitution. Federal habeas corpus relief does not lie for errors of state law. Estelle v. McGuire, 502 U.S. 62, 67-68 (1991). Instead, it only lies for violations of the Constitution, law, or treaties of the United States. Id. This is a state law claim which has been decided adversely to Petitioner under state law. There is no claim here upon which federal habeas corpus relief can be granted. Therefore, this claim should be denied.Inability to Confront Parole Officer
Petitioner claims he was denied the opportunity to confront his parole officer and, therefore, unable to present mitigating evidence at his hearing. "Absent evidence in the record, a court cannot consider a habeas petitioner's bald assertions on a critical issue in his pro se petition, unsupported and unsupportable by anything else contained in the record, to be of probative evidentiary value." Ross v. Estelle, 694 F.2d 1008, 1011 (5th Cir. 1983). Conclusory allegations, unsupported by specifics, are subject to summary dismissal. Blackledge v. Allison, 431 U.S. 63, 74 (1977). The record is silent as to this evidence. Further, Petitioner failed to request the presence of his parole officer and failed to object to the parole officer's report. As a result, this court cannot take Petitioner's unsupported allegations as true. Petitioner's unsupported conclusory allegations are not sufficient for this court to find that Petitioner's constitutional right to confrontation was violated. See Ross, 694 F.2d at 1011.
Denial of Counsel
Petitioner claims he was denied counsel at the parole revocation hearing. There is no absolute right to counsel in parole revocation proceedings. Gagnon v. Scarpelli, 411 U.S. 778, 787 (1973). A due process right to counsel exists if the parolee makes a timely request for counsel based on a colorable claim that he has not committed the alleged violation of the conditions upon which he is at liberty; or that there are substantial reasons which justified or mitigated the violation and make revocation inappropriate and the reasons are complex or otherwise difficult to develop of present. Id. at 790. In this case, there is nothing in the record that shows that the Petitioner requested counsel. His claim that he required counsel is wholly conclusory and without any merit. Petitioner indicated he was ready to proceed at the parole revocation hearing without counsel.Further, Petitioner failed to present a colorable claim that he did not commit the parole violations. One of the reasons for the parole revocation proceedings was "new charges." Petitioner pled nolo contendere to a failure to appear in Little Rock Municipal Court in Little Rock, Arkansas on August 27, 2001. He was sentenced to serve 365 days in Pulaski County Detention Facility and given credit for time served. Additionally, Petitioner failed to show there were complex reasons why his parole should not have been revoked. The hearing officer noted that the Petitioner was capable of representing himself. Petitioner failed to show that denying him counsel was a denial of due process. Therefore, Petitioner's claim fails.
Conclusion
The Court finds that the state habeas corpus determination did not result in a decision that was contrary to, or involved an unreasonable application of, clearly-established Federal law as determined by the United States Supreme Court. Further, 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. Accordingly, the petition for writ of habeas corpus should be denied.Recommendation
This Court recommends the petition for writ of habeas corpus, brought pursuant to 28 U.S.C. § 2254, be denied.