MELINDA HARMON, District Judge.
State inmate Antonio Dudley (TDCJ #567960) ("Petitioner") has filed a federal petition under 28 U.S.C. § 2254, seeking a writ of habeas corpus to challenge the revocation of his parole. Pending is Respondent's Motion for Summary Judgment (Docket Entry No. 11).
Petitioner was convicted of attempted murder after a jury trial in the 208th District Court of Harris County, Texas on October 8, 1990 and was sentenced to 50 years' imprisonment.
On March 9, 2015, Jessica Kuhre ("Kuhre"), Petitioner's parole officer at the time, received a text from Petitioner's cell phone which stated: "At this time it fills [sic] good to say, you can give me a real good fucking then get your hell out, ve [sic] my life."
On March 10, 2015, a warrant was placed for Petitioner's arrest based on the above-described text message, for the offense of "sexual harassment," and Petitioner was arrested on March 11, 2015.
Hearing Officer Joel Butler ("Butler") presided over the preliminary hearing which was held on March 23, 2015.
A parole revocation hearing was held on April 1, 2015. The hearing records reflect that Petitioner briefly came to the hearing just long enough to post a written statement on the door and then left.
Petitioner's motion to reopen the revocation hearing was denied on June 2, 2015. On or around June 22, 2015, Petitioner filed a state application for writ of habeas corpus in the 208th District Court, in cause number 534058-E.
Petitioner does not challenge the substance of his underlying conviction for attempted murder and the attendant 50 year sentence, but instead challenges the substance and procedures that formed the basis for the revocation of his parole. Respondent has filed a Motion for Summary Judgment, to which Petitioner has filed a response in opposition. The § 2254 proceeding is ripe for adjudication.
To be entitled to summary judgment, the pleadings and summary judgment evidence must show that there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. FED. R. CIV. P. 56(a). The moving party bears the burden of initially raising the basis of the motion and identifying the portions of the record demonstrating the absence of a genuine issue for trial. Duckett v. City of Cedar Park, Tex., 950 F.2d 272, 276 (5th Cir. 1992). Thereafter, "the burden shifts to the nonmoving party to show with `significant probative evidence' that there exists a genuine issue of material fact." Hamilton v. Seque Software, Inc., 232 F.3d 473, 477 (5th Cir. 2000) (quoting Conkling v. Turner, 18 F.3d 1285, 1295 (5th Cir. 1994)). The Court may grant summary judgment on any ground supported by the record, even if the ground is not raised by the movant. United States v. Houston Pipeline Co., 37 F.3d 224, 227 (5th Cir. 1994).
While Rule 56 of the Federal Rules regarding summary judgment applies generally "with equal force in the context of habeas corpus cases," Clark v. Johnson, 202 F.3d 760, 764 (5th Cir. 2000), it applies only to the extent that it does not conflict with the habeas rules. Smith v. Cockrell, 311 F.3d 661, 668 (5th Cir. 2002), abrogated on other grounds by Tennard v. Dretke, 542 U.S. 274 (2004).
The writ of habeas corpus provides an important, but limited, examination of an inmate's conviction and sentence. See Harrington v. Richter, 562 U.S. 86, 103 (2011) (noting that "state courts are the principal forum for asserting constitutional challenges to state convictions"). AEDPA, codified as amended at 28 U.S.C. § 2254(d), "imposes a highly deferential standard for evaluating state-court rulings and demands that state-court decisions be given the benefit of the doubt"; it also codifies the traditional principles of finality, comity, and federalism that underlie the limited scope of federal habeas review. Renico v. Lett, 559 U.S. 766, 773 (2010) (quotations omitted).
AEDPA "bars relitigation of any claim `adjudicated on the merits' in state court, subject only to the exceptions in [28 U.S.C.] §§ 2254(d)(1) and (d)(2)." Richter, 562 U.S. at 98. "When a federal claim has been presented to a state court and the state court has denied relief, it may be presumed that the state court adjudicated the claim on the merits in the absence of any indication or state-law procedural principles to the contrary." Id. at 99.
To the extent that Petitioner exhausted his claims, those claims were adjudicated on the merits by state courts. This Court, therefore, can only grant relief if "the state court's adjudication of the merits was `contrary to, or involved an unreasonable application of, clearly established Federal law.'" Berghuis v. Thompkins, 560 U.S. 370, 378 (2010) (quoting 28 U.S.C. § 2254(d)(1)). The focus of this well-developed standard "is not whether a federal court believes the state court's determination was incorrect but whether that determination was unreasonable— a substantially higher threshold." Schriro v. Landrigan, 550 U.S. 465, 473 (2007). Where a claim has been adjudicated on the merits by the state courts, relief is available under § 2254(d) only in those situations "where there is no possibility fairminded jurists could disagree that the state court's decision conflicts with" Supreme Court precedent. Richter, 562 U.S. at 102.
Whether a federal habeas court would have, or could have, reached a conclusion contrary to that reached by the state court on an issue is not determinative under § 2254(d). Id. ("Even a strong case for relief does not mean that the state court's contrary conclusion was unreasonable."). Thus, AEDPA serves as a "guard against extreme malfunctions in the state criminal justice systems," not as a vehicle for error correction. Id. (citation omitted); see also Wilson v. Cain, 641 F.3d 96, 100 (5th Cir. 2011). "If this standard is difficult to meet, that is because it was meant to be." Richter, 562 U.S. at 102.
"Review under § 2254(d)(1) focuses on what a state court knew and did." Cullen v. Pinholster, 563 U.S. 170, 182 (2011). Reasoning that "[i]t would be strange to ask federal courts to analyze whether a state court's adjudication resulted in a decision that unreasonably applied federal law to facts not before the state court," Pinholster explicitly held that "[i]f a claim has been adjudicated on the merits by a state court, a federal habeas petitioner must overcome the limitation of § 2254(d)(1) on the record that was before that state court." Id. at 185. Thus, "evidence introduced in federal court has no bearing on § 2254(d)(1) review." Id.
Courts construe pleadings filed by pro se litigants under a less stringent standard than those drafted by attorneys. Haines v. Kerner, 404 U.S. 519 (1972); Bledsue v. Johnson, 188 F.3d 250, 255 (5th Cir.1999). Thus, pro se pleadings are entitled to a liberal construction that includes all reasonable inferences that can be drawn from them. Haines, 404 U.S. at 521. Nevertheless, "the notice afforded by the Rules of Civil Procedure and the local rules" is considered "sufficient" to advise a pro se party of his burden in opposing a summary judgment motion. Martin v. Harrison County Jail, 975 F.2d 192, 193 (5th Cir. 1992).
Petitioner challenges his parole revocation on the following grounds:
See Petition at 3-5.
Respondent contends that claims 1, 3, and 7 are unexhausted, and that Petitioner's remaining claims lack merit.
As stated above, Petitioner's federal habeas petition is subject to the provisions of the AEDPA. Lindh v. Murphy, 521 U.S. 320 (1997). Under 28 U.S.C. § 2254 of the AEDPA, a petitioner "must exhaust all available state remedies before he may obtain federal habeas corpus relief." Sones v. Hargett, 61 F.3d 410, 414 (5th Cir.1995). The doctrine of exhaustion, codified as amended at 28 U.S.C. § 2254(b)(1) and (c), reflects a policy of federal/state comity. Coleman v. Thompson, 501 U.S. 722, 731-32 (1991). Those statutes provide in pertinent part as follows:
28 U.S.C. § 2254(b)-(c). Under this framework, exhaustion means that the petitioner must have presented all of his habeas corpus claims fairly to the state's highest court before he may bring them to federal court. Castille v. Peoples, 489 U.S. 346 (1989); Fisher v. State, 169 F.3d 295, 302 (5th Cir. 1999). "This requirement is not satisfied if the petitioner presents new legal theories or factual claims in his federal habeas petition." Anderson v. Johnson, 338 F.3d 382, 386 (5th Cir. 2003). The Fifth Circuit has consistently held that a "`petitioner fails to exhaust state remedies when he presents material additional evidentiary support to the federal court that was not presented to the state court.'" Id. (quoting Graham v. Johnson, 94 F.3d 958, 968 (5th Cir. 1996) (emphasis added by Anderson Court)).
Claims regarding parole revocation procedures are cognizable under Article 11.07 of the Texas Code of Criminal Procedure. Ex parte Evans, 964 S.W.2d 643, 648 (Tex. Crim. App. 1998) (citing Bd. of Pardons & Paroles v. Court of Appeals for the Eighth Dist., 910 S.W.2d 481, 484 (Tex. Crim. App. 1995)). As with claims pertaining to a criminal trial, a prisoner must file an application for state habeas corpus relief in the court and county in which he was convicted. See id. (citing Ex parte Woodward, 619 S.W.2d 179 (Tex. Crim. App. 1981); Ex parte Alexander, 861 S.W.2d 921, 922 (Tex. Crim. App. 1993)).
Petitioner's pleadings and public records show that petitioner has not presented the following claims in state court: (1) Claim one, regarding the constitutionality of Texas Penal Code 42.07 (Harassment); and (2) Claim three, regarding Governor Abbott's comments. The state court records reflect that Petitioner did not fairly present these claims to the state courts in a procedurally proper manner according to the rules of the state courts; therefore, those claims raised in the present petition are unexhausted.
A procedural bar for federal habeas review occurs if the court, to which a petitioner must present his claims to satisfy the exhaustion requirement, would now find the unexhausted claims procedurally barred. Coleman, 501 U.S. at 735 n. 1. Texas prohibits successive writs challenging the same conviction except in narrow circumstances. TEX. CODE CRIM. PROC. ANN. art. 11.07, § 4(a) (Vernon 2005). The Texas Court of Criminal Appeals will not consider the merits or grant relief on a subsequent habeas application unless the application contains sufficient specific facts establishing the following:
Id. The Texas Court of Criminal Appeals applies its abuse of the writ doctrine regularly and strictly. Fearance v. Scott, 56 F.3d 633, 642 (5th Cir. 1995) (per curiam).
Petitioner does not state specific facts to show that the above-mentioned claims in the pending petition could not have been raised in his state habeas application, nor does he prove that he is actually innocent of the harassment charge. Therefore, petitioner's unexhausted claims do not fit within the exceptions to the successive writ statute and would be procedurally defaulted in state court. Coleman, 501 U.S. at 735 n. 1. Such a bar precludes this Court from reviewing Petitioner's claims absent a showing of cause for the default and actual prejudice attributable to the default. Id. at 750.
Regarding his remaining claims, Petitioner complains that the following procedures violated his Fourteenth Amendment due process rights: (1) his parole officers maliciously prosecuted him for an offense by using parole revocation proceedings rather than a criminal trial (Claim No. 2); (2) there was insufficient evidence to find that he had committed a criminal offense (Claim No. 4); (3) his parole officers acted as witnesses and prosecutors (Claim No. 5); (4) he should have been appointed counsel (Claim No. 6); and (5) the hearing officer should not have been a parole officer (Claim No. 7).
In order to establish a due process violation, a petitioner must show deprivation of a protected right to which he has a "legitimate claim of entitlement." Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 7 (1979). Under Texas law, when a person convicted of certain crimes is paroled but then has his parole revoked, the offender must "serve the remaining portion of the sentence on which the person was released." TEX. GOV'T CODE § 508.283.
Noting that "the revocation of parole is not part of a criminal prosecution and thus the full panoply of rights due a defendant in such a proceeding does not apply to parole revocations," the United States Supreme Court examined what due process requires in the context of a parole revocation. See Morrissey v. Brewer, 408 U.S. 471, 484 (1972) ("What is needed is an informal hearing structured to assure that the finding of a parole violation will be based on verified facts and that the exercise of discretion will be informed by an accurate knowledge of the parolee's behavior."). The high Court concluded that the minimum requirements of due process in the parole revocation context include the following:
Morrissey, 408 U.S. at 489.
The record reflects that Petitioner was provided written notice of the claims that formed the basis for the preliminary hearing to consider the revocation of his parole.
In Claim Two, Petitioner alleges that his parole officers, Kuhre and Kiel, maliciously prosecuted him in retaliation for the text message. He alleges that they used parole revocation proceedings to incarcerate him and that this was done with "malicious intent" because he was never indicted or convicted of harassment.
First, Petitioner's contention that a second criminal conviction is required before his parole may be revoked is meritless; parole authorities may consider criminal activities for which he has not even been charged, indicted, or convicted. See Maddox v. U.S. Parole Com'n, 821 F.2d 997, 999 (5th Cir. 1987) ("the commission may consider . . . allegations of criminal activity for which the prisoner has not even been charged."); Villareal, 985 F.2d at 839 (parole boards may consider charges which were dismissed by the State); Else v. Johnson, 104 F.3d 82, 83 (5th Cir. 1997) (per curiam) (no due process violation when State considered dismissed criminal charge during parole revocation hearing).
In rejecting the notion that a subsequent criminal prosecution must have occurred, the Supreme Court in Morrissey reasoned:
408 U.S. at 483. Therefore, the fact that Petitioner had not been indicted and convicted for harassment had no relevance during Petitioner's parole revocation proceedings, and his claim is subject to dismissal on this basis alone.
Second, to the extent that Petitioner contends that his parole officers acted maliciously to prosecute him, this fails to state a viable federal constitutional claim. See Albright v. Oliver, 510 U.S. 266, 268 (1994) (plurality decision) (no federal constitutional right under the Fourteenth Amendment to be free from prosecution except upon probable cause); Castellano v. Fragozo, 352 F.3d 939, 953 (5th Cir. 2003) ("no such freestanding constitutional right to be free from malicious prosecution exists").
Moreover, even if Petitioner could state a viable constitutional claim, Petitioner fails to raise a fact issue that he was arrested without probable cause. The hearing officer in this case made findings based on the evidence that Petitioner had committed a second offense against the laws of the State of Texas. The hearing officer heard (and found credible) evidence that Petitioner sent the text regarding obscene threats, and further found that this conduct constituted the offense of harassment. Petitioner acknowledges that the text message was sent from his phone to his parole officer, and that he used that phone regularly to communicate with her. Because there was probable cause for arresting Petitioner on the charge of harassment, there is no basis for Petitioner's claim regarding malicious prosecution through parole revocation proceedings. Petitioner is not entitled to relief on this ground.
Petitioner also claims that there was insufficient evidence to support the finding that he committed harassment because the text was merely mumbled words without overt action. Due process only requires that there be "`some evidence' in the record to support the . . . decision to revoke parole." Villarreal v. U.S. Parole Com'n, 985 F.2d 835, 839 (5th Cir. 1993). A revocation proceeding is not part of a criminal prosecution. Morrissey, 408 U.S. at 480. The burden of proof in a parole revocation hearing is by a preponderance of the evidence, a considerably lower standard than reasonable doubt which governs criminal trials. Villarreal, 985 F.2d at 839. All that is required for revocation is that the evidence and facts reasonably demonstrate that the person's conduct has not been as good as required by the terms and conditions of his release. See Mack v. McCune, 551 F.2d 251, 254 (10th Cir.1977).
Although Petitioner categorizes the text message as "mumbled words" which had "no overt action," the state court and parole records reveal that there was evidence to support a charge of harassment in this case. Petitioner's text cannot be summarily dismissed as "mumbled words"; the text contained language of an obscene nature as defined in the statute,
The revocation hearing report also reflects that parole officer Kuhre testified at the preliminary hearing and produced copies of text messages between her and Petitioner. Kuhre testified that the message was sent from the same phone number with which Kuhre had been in communication with Petitioner. The message contained the same style, syntax, and grammar as the preceding messages regarding Petitioner's lost GPS monitor and the subsequent messages regarding an officer visit scheduled with officer Kiel.
Petitioner testified that he remembered sending the other text messages but denied sending the text in question. He argued that other people have access to his phone.
Petitioner contends that his due process rights were violated because the witnesses, who were also his parole officers, functioned as the prosecutors in his preliminary hearing (Claim No. 5). Petitioner also argues that Butler, the hearing officer, should not have been the hearing officer because he is a parole official. (Claim No. 7).
The United States Supreme Court has held that "[b]ecause parole revocation deprives the parolee not `of the absolute liberty to which every citizen is entitled, but only of the conditional liberty properly dependent on observance of special parole restrictions,' States have wide latitude under the Constitution to structure parole revocation proceedings." Pa. Bd. of Probation and Parole v. Scott, 524 U.S. 357, 365-66 (1998) (quoting Morrissey, 408 U.S. at 480). The State of Texas has adopted informal administrative parole revocation procedures as set forth in the Texas Government Code Chapter 508 and in Title 37, part 5 of the Texas Administrative Code. Further, parole proceedings are designed to be "`predictive and discretionary' as well as fact finding," rather than purely adversarial. See Gagnon v. Scarpelli, 411 U.S. 778, 787 (1973) (quoting Morrissey, 408 U.S. at 480).
As stated above, Petitioner received the minimum requirements of due process at his hearings. There is no merit to Petitioner's contention that the State, following its procedures, deprived Petitioner of due process by allowing the parole officers, who witnessed the unlawful behavior, to testify regarding the harassment charge. See, e.g., Gagnon, 411 U.S. at 787.
Nor is there any merit to Petitioner's contention that his hearing officer was improper because he was a parole official.
Further, Petitioner's reliance on Morrissey for the contention that a hearing officer may not be a parole officer is unavailing. Petitioner quotes from Justice Douglas's dissenting opinion in Morrissey; the controlling precedent in Morrissey held that—as is the case here—the hearing officer may be "someone such as a parole officer other than the one who has made the report of parole violations or has recommended revocation." 408 U.S. at 486 (majority op.) (emphasis added).
Moreover, to the extent that this claim was properly before the state court, the Texas Court of Criminal Appeals denied the application for writ of habeas corpus without written opinion, rejecting Petitioner's claim regarding the lack of neutrality of the hearing officer. The Court finds that the state court proceedings did not result in an unreasonable application of Supreme Court precedent as set forth in Morrissey. Further, the proceedings did not result in a decision that was based on an unreasonable determination of the facts in light of the evidence presented. Accordingly, Petitioner is not entitled to relief for his claims regarding the procedures employed for his revocation proceedings.
The Constitution does not provide an absolute right to counsel at a parole revocation hearing, although due process may require that an attorney be appointed in a particular case. See Gagnon, 411 U.S. at 787-91. The decision to appoint counsel "must be made on a case-by-case basis in the exercise of a sound discretion" by the presiding parole official. Id. at 790. Generally, "the presence and participation of counsel will probably be both undesirable and constitutionally unnecessary in most revocation hearings." Id. Even so, counsel should be appointed where the parolee would have difficulty in presenting his case or when the facts or mitigating circumstances are so complex that they can only be presented by a trained advocate. Id. "The need for counsel at a revocation hearing derives, not from the invariable attributes of those hearings, but rather from the peculiarities of particular cases." Id. at 789.
In Petitioner's case, the essential facts underpinning the allegations against him were uncomplicated and straightforward: the issues were whether he used his phone to text an obscene message to his parole officer and whether his parole should be revoked as a result of the alleged offense. Petitioner does not establish that he had a colorable claim that he did not commit the offense as alleged. Petitioner also does not show that substantial reasons justify the violation and make revocation inappropriate. Nor does he show that the facts of the case are complicated and demand legal expertise to present. See id.
Furthermore, the record indicates that the hearing officer considered Petitioner's intelligence and his grasp of the issues and determined that no counsel was necessary because the case was straightforward and Petitioner could speak for himself. The hearing officer reported that he made this determination taking into consideration that Petitioner has no reported history of mental illness, has a General Education Diploma ("GED") and an I.Q. of 94, and that Petitioner was determined to be competent to choose to decline to participate in the hearing.
In addition, Petitioner has not demonstrated that the hearing officer abused his discretion when he determined that counsel should not be appointed in this case. The hearing officer denied the appointment of counsel after the he considered Petitioner's understanding of the case and his ability to articulate a defense, as noted in the hearing officer's findings.
Moreover, the Texas Court of Criminal Appeals denied the application for writ of habeas corpus without written opinion, rejecting Petitioner's claim regarding the denial of appointment of counsel for his parole revocation proceedings. The Court finds that the state court proceedings did not result in an unreasonable application of Supreme Court precedent as set forth in Gagnon. Further, the proceedings did not result in a decision that was based on an unreasonable determination of the facts in light of the evidence presented. Accordingly, Petitioner's claim that he was unconstitutionally denied counsel is denied, and he is not entitled to relief on this ground.
Rule 11 of the Rules Governing Section 2254 Cases requires a district court to issue or deny a certificate of appealability when entering a final order that is adverse to the petitioner. See 28 U.S.C. § 2253. A certificate of appealability will not issue unless the petitioner makes "a substantial showing of the denial of a constitutional right," 28 U.S.C. § 2253(c)(2), which requires a petitioner to demonstrate "that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). Under the controlling standard, this requires a petitioner to show "that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were `adequate to deserve encouragement to proceed further.'" Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). Where denial of relief is based on procedural grounds, the petitioner must show not only that "jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right," but also that they "would find it debatable whether the district court was correct in its procedural ruling." Slack, 529 U.S. at 484.
A district court may deny a certificate of appealability, sua sponte, without requiring further briefing or argument. See Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000). For reasons set forth above, this court concludes that jurists of reason would not debate whether any procedural ruling in this case was correct or whether Petitioner states a valid claim for relief.
Therefore, a certificate of appealability will not issue.
Based on the foregoing, the court
The Clerk shall provide a copy of this order to the parties.
TEX. PENAL CODE § 42.07.
