Opinion
Civil Action No. 4:04-CV-0082-A.
June 1, 2004
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 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 pursuant to 28 U.S.C. § 2254.
B. PARTIES
Petitioner Demetrius Hezekiah Wilcher, TDCJ-ID #891429, is in custody of the Texas Department of Criminal Justice, Correctional Institutions Division, and is currently incarcerated in Bridgeport, Texas.
Respondent Douglas Dretke is the Director of the Texas Department of Criminal Justice, Correctional Institutions Division (TDCJ).
C. PROCEDURAL HISTORY
Wilcher is serving a ten-year state sentence for manslaughter. (State Habeas R. at 75.) By way of the instant petition, he challenges the decision of the Texas Board of Pardons and Paroles (the Board) to deny him mandatory supervision release. (Federal Petition at 7-8; Pet'r Brief in Support.) Wilcher filed a state habeas application for writ of habeas corpus raising one or more of the issues presented, which was denied by the Texas Court of Criminal Appeals without written order on the findings of the trial court on December 10, 2003. See Ex parte Wilcher, Application No. 57,465-01, at cover. Wilcher filed his federal petition for writ of habeas corpus on January 26, 2004, in the United States District Court for the Northern District of Texas, Fort Worth Division.
A pro se habeas petition is filed when the petition and any attachments are delivered to prison authorities for mailing. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998).
D. ISSUES
Wilcher raises the following grounds for relief:
(1) He was denied mandatory supervision release with "no notice of early hearing date being afforded [him] thereby extending [his] restraint from his liberty" in violation of due process;
(2) He was "denied his liberty where Texas statute allows for mandatory supervision release upon meeting certain stipulations which [he] has met" in violation of his Fourteenth Amendment rights;
(3) The Board "deliberately failed to inform [him] of [the] hearing thereby making said hearing one-sided in violation of due process and equal protection guarantees of the U.S. Constitution"; and
(4) The state legislature has violated the Separation of Powers Act by "illegally empowering the Parole Board with judiciary power." (Federal Pet. at 7-8.)
E. RULE 5 STATEMENT
Dretke asserts that one or more of Wilcher's claims are unexhausted and procedurally barred. (Resp't Answer at 4-7.)
F. EXHAUSTION
Applicants seeking habeas corpus relief under § 2254 are required to exhaust all claims in state court before requesting federal collateral relief. 28 U.S.C. § 2254(b)(1); Fisher v. Texas, 169 F.3d 295, 302 (5th Cir. 1999). The exhaustion requirement is satisfied when the substance of the federal habeas claim has been fairly presented to the highest court of the state. O'Sullivan v. Boerckel, 526 U.S. 838, 842-48 (1999); Fisher, 169 F.3d at 302; Carter v. Estelle, 677 F.2d 427, 443 (5th Cir. 1982). For purposes of exhaustion, the Texas Court of Criminal Appeals is the highest court in the state. Richardson v. Procunier, 762 F.2d 429, 431 (5th Cir. 1985). Thus, a Texas prisoner may satisfy the exhaustion requirement by presenting both the factual and legal substance of his claims to the Texas Court of Criminal Appeals in a state application for writ of habeas corpus pursuant to article 11.07 of the Texas Code of Criminal Procedure. TEX. CODE CRIM. PROC. ANN. art. 11.07 (Vernon Supp. 2004).
In Wilcher's state habeas application, arguably he raised one or more of his due process claims and his separation of powers claim. He did not, however, raise his unequal protection claim. (State Habeas R. at 7-8.) Assuming Wilcher could have raised the claim in his state habeas application, but did not, and that the claim is now procedurally barred from consideration by the state court, the claim has not been properly exhausted and is procedurally barred in federal court. 28 U.S.C. § 2254(b)(1)(A); Coleman v. Thompson, 501 U.S. 722, 750 (1991); Beasley v. Johnson, 242 F.3d 248, 263 (5th Cir. 2001).
Although Wilcher does rely on factual allegations not asserted in his state habeas application in support of these claims, the new allegations do not affect the disposition of this action.
Wilcher has not given an explanation to excuse his default of the claim or otherwise demonstrated that failure to consider the claim will result in a miscarriage of justice. See Sawyer v. Whitley, 505 U.S. 333, 339-40 (1992).
G. REMAINING GROUNDS
Wilcher's remaining claims lack merit. The essence of Wilcher's claims under grounds one, two and three is that his due process rights were violated by the Board's inadequate notice of its intention to review him for mandatory supervision release and the Board's denial of mandatory supervision release given the fact that he is eligible and has met the criteria set forth in § 508.147(b) of the Texas Government Code — i.e., his actual calendar time served plus good conduct time equals one-fourth of the sentence imposed. (Pet'r Brief in Support 2-7.) TEX. GOV'T CODE ANN. § 508.147(a) (Vernon 1998).
A habeas corpus applicant under 28 U.S.C. § 2254 must claim violation of a federal constitutional right to be entitled to relief. Narvaiz v. Johnson, 134 F.3d 688, 695 (5th Cir. 1998). A state prisoner does not have a federal constitutional right to obtain release prior to the expiration of his sentence. See Bd. of Pardons v. Allen, 482 U.S. 369, 378 n. 10 (1987). Nevertheless, the Fifth Circuit has held that the Texas mandatory supervision scheme in place prior to September 1, 1996 created a constitutional expectancy of early release to those inmates whose calendar time combined with good time credits equal the sentence imposed. See Malchi v. Thaler, 211 F.3d 953, 957-58 (5th Cir. 2000) (citing Wolff v. McDonnell, 418 U.S. 539, 557 (1974)). Effective September 1, 1996, however, the Texas mandatory supervision law was revised to provide for a discretionary mandatory supervision scheme. See Tex. Gov't Code Ann. § 508.149(b) (Vernon Supp. 2004). The Fifth Circuit has yet to rule on whether a federal constitutional expectancy of early release exists under Texas's revised statute, but the Texas Court of Criminal Appeals has held that the statute "vests a liberty interest in the eligible inmate." Ex parte Geiken, 28 S.W.2d 553, 558 (Tex.Crim.App. 2000). In light of the liberty interest created by the statute, the state court determined that constitutional due process requires that an eligible inmate be provided timely notice that he will be considered for mandatory supervision release and a meaningful opportunity to be heard- i.e., an opportunity to tender or have tendered to the Board information in support of release. Id. at 559-60. Further, if release is denied, the inmate must be informed in what respects he falls short of qualifying for early release. Id. at 560.
Here, Wilcher was notified on August 9, 2002 that he was denied parole but that he was eligible for discretionary mandatory supervision and that, within six months before his projected release date, the Board would review his case to determine if he would be released. (Resp't Exhibit A.) On October 15, 2002, he was again notified that he was eligible for mandatory supervision release and that "before his projected release date," the Board would review his file and all available records to determine if he would be released. He was further informed that if he wished to submit any additional information, he should do so in writing as soon as possible to the TDCJ-Parole Division. ( Id.) Thereafter, the Board decided not to grant discretionary mandatory supervision release, and, on April 30, 2003, it notified Wilcher of its decision and the reasons for its decision. ( Id.) It further notified him that his next review date was set for April 2004. Thus, Wilcher was afforded all the due process he was entitled.
On February 23, 2004, the Board again denied Wilcher mandatory supervision release and informed him that his next review date has been set for April 2005. Wilcher does not challenge the February 23, 2004 denial in his state habeas application, filed on September 8, 2003, or the instant federal petition, filed on January 26, 2004. Thus, these findings and conclusions are not relevant to the February 23, 2004 denial and the undersigned Magistrate Judge makes no recommendation pertaining to whether Wilcher received adequate notice in that instance.
Since the Board's April 30, 2003 denial, the Texas Court of Criminal Appeals has determined that, as a matter of due process, an inmate is entitled to notice of the specific month and year in which he will be reviewed for release on mandatory supervision. Ex parte Retzlaff, No. 74,772, slip op., 2004 WL 1103077, at *2-3 (Tex.Crim.App. May 19, 2004). However, the undersigned Magistrate Judge finds no support for the proposition that the decision in Ex parte Ratzlaff is to be applied retroactively under state law.
Under his fourth ground, Wilcher contends that, in violation of the separation of powers doctrine, the Texas legislature, by enacting § 508.149(b), has "empowered" the Board "with powers of the judicial branch of the government" and "with the authority to abuse their authority unchecked" without first "repealing law that governed the mandatory release law." (Federal Petition at 8; Pet'r Brief in Support at 6.) According to Wilcher, enacting § 508.149(b) was "an oxymoron since nothing can be said to be both discretionary and mandatory at the same time." However, Wilcher cites to no clearly established federal law that § 508.149(b) implicates a violation under the separation of powers clause, and none has been found. 28 U.S.C. § 2254(d).
II. RECOMMENDATION
Wilcher'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 in the United States District Court 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 specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation until June 22, 2004. The United States District Judge need only make a de novo determination of those portions of the United States Magistrate Judge's proposed findings, conclusions, and recommendation to which specific objection is timely made. See 28 U.S.C. § 636(B)(1). Failure to file by the date stated above a specific written objection to a proposed factual finding or legal conclusion will bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any such proposed factual finding or legal conclusion accepted by the United States District Judge. See Douglass v. United Servs. 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 June 22, 2004, to serve and file 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.
It is further ORDERED that the above-styled and numbered action, previously referred to the United States Magistrate Judge for findings, conclusions, and recommendation, be and hereby is returned to the docket of the United States District Judge.