Opinion
NO: 4:02-CV-183-A
June 28, 2002
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 Title 28, United States Code, Section 63 6(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:
FINDINGS AND CONCLUSIONS
A. NATURE OF THE CASE
This is a petition for writ of habeas corpus by a state prisoner pursuant to Title 28 of the United State Code, Section 2254.
B. PARTIES
Petitioner Ashford, TDCJ-ID #277618, is in the custody of the Texas Department of Criminal Justice, Institutional Division and presently incarcerated in the Boyd Unit, Teague, Texas.
The named Respondent, Dee Anderson, is the Sheriff for Tarrant County, Texas. Ashford has since been transferred to a unit of the Texas Department of Criminal Justice, Institutional Division, which is under the direction of Janie Corkrell.
C. PROCEDURAL HISTORY
On November 28, 1977, Ashford was convicted of burglary of a habitation in Cause No. 0120303, in Criminal District Court No. 1, Tarrant County, Texas, and sentenced to fifty (50) years' imprisonment. (Pet. at 2; Resp. Reply at App.). Ashford did not appeal his conviction or sentence. (Pet. at 2-3).
Ashford was released on parole March 15, 1985. On June 4, 2001, the Board of Pardons and Paroles issued an arrest warrant on grounds that Ashford was in violation of the terms of his parole. Ashford was already jailed on a charge of aggravated assault with a deadly weapon in Case No. 0808630D pending in the 396th District Court of Tarrant County, Texas. On March 1, 2002, Ashford pleaded guilty in Case No. 0808630D to the lesser included misdemeanor offense of Assault Causing Bodily Injury. (Resp. Reply at App.). Ashford was sentenced pursuant to a plea bargain to eight months' confinement for this offense, but was discharged with credit for time served.
Ashford has filed one state application for writ of habeas corpus challenging the Board's failure to hold a timely parole revocation hearing. (Pet. at 3-4). The Texas Court of Criminal Appeals denied the application without written order on January 30, 2002. Ex parte Ashford, No. 51, 343-01 (Tex.Crim.App. Jan. 30, 2002).
Ashford filed his Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 in the United States District Court for the Northern District of Texas, Fort Worth Division, on March 4, 2002. Respondent has filed a reply and documentation of the following:
For purposes of this habeas corpus proceeding, the federal petition is deemed filed on the date the petitioner executed his petition and presumably deposited it in the prison mailing system. Spotville v. Cam, 149 F.3d 374 (5th Cir. 1998).
On March 14, 2002, a hearing officer for the Board of Pardons and Paroles conducted a revocation hearing. Counsel was appointed to represent Ashford. The hearing officer found that Ashford had a new misdemeanor assault conviction, that Ashford had been in possession of a weapon, and that Ashford had committed an aggravated assault with a deadly weapon that arose out of the same incident underlying his misdemeanor assault conviction. (Resp. Reply at App.). The hearing officer concluded that Ashford had violated the terms of his parole, and both the field officer and hearing officer recommended revocation. (Resp. Reply at App.). On March 21, 2002, the Board revoked Ashford's parole. (Resp. Reply at App.). Ashford received notice of that decision on March 28, 2002.
D. ISSUES
Petitioner presents the following as grounds for relief 1. He has been denied a parole revocation hearing within the time imposed by state law. 2. He has been denied bond pending a parole revocation hearing. 3. The Board of Pardons and Paroles has applied a change in the parole revocation laws in violation of the Ex Post Facto Clause.
E. RULE 5 STATEMENT
Respondent has not formally stated a position on Ashford's exhaustion of available state remedies, but does not move for dismissal on grounds of lack of exhaustion.
F. LEGAL STANDARD FOR GRANTING HABEAS CORPUS RELIEF
The standards codified in 28 U.S.C. § 2254 guide our review of a petition for writ of habeas corpus filed by a state prisoner:
(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 the State court proceeding.
28 U.S.C. § 2254 (d). See also Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Relief is authorized if a state court arrives at a conclusion opposite to that reached by the 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, 120 S.Ct. 1495, 1523, 1518, 146 L.Ed.2d 389 (2000). Relief is also available if the state court identifies the correct legal principle but unreasonably applies that principle to the facts of the prisoner's case or reaches a decision based on an unreasonable factual determination. See 28 U.S.C. § 2254(d)(1)-(2); Montoya v. Johnson, 226 F.3d 399, 404 (5th Cir. 2000). Mere disagreement with the state court is not enough: The standard is one of objective reasonableness. Montoya, 226 F.3d at 404. State court determinations of underlying factual issues are presumed correct, and the petitioner has the burden to rebut the presumption with clear and convincing evidence. 28 U.S.C. § 2254(e)(l)
G. DISCUSSION
1. Untimely Parole Revocation Hearing
Ashford complains that he has not been afforded a timely final parole revocation hearing because former Texas law required that a final revocation hearing be conducted within 120 days following a parolee's return to custody on a parole revocation warrant. See Tex. Code Crim. Proc. Ann. art. 42.18, § 14(a) (current version codified at TEX. GOV'T CODE ANN. § 508.282 (Vernon 1998 Supp. 2002)). Respondent asserts that Ashford's complaint has been rendered moot because he has now received a final, if untimely, revocation hearing.
Ashford was jailed and awaiting trial on assault charges when the Board issued its arrest warrant in June 2001. The current statute governing revocation hearings provides that a revocation hearing is not required until after this newest offense has been adjudicated and the sentence discharged, or after the prosecutor has dismissed the new charges. TEX. GOV'T CODE ANN. § 508.282(a)(l)(B) (Vernon Supp. 2002). Ashford's revocation hearing, which was held two weeks after he discharged his sentence for the misdemeanor assault, was timely under the new state statute. Ashford's arguments that it violates tile Ex Post Facto Clause to apply this change in the law to him are addressed infra.
If Ashford is alleging only that the failure of the Texas Board of Pardons and Parole to conduct a revocation hearing within a given time period is a violation of state law, such a claim is not cognizable in this federal habeas corpus proceeding. Federal habeas corpus relief will not issue to correct errors of state constitutional, statutory, or procedural law, unless a federal issue is also presented. See Estelle v. McGuire, 502 U.S. 62, 67-68 (1991); Rose v. Hodges, 423 U.S. 19, 21 (1975) (per curiam). See generally 28 U.S.C. § 2254. A state's interpretation of its own rules or statutes does not raise a federal constitutional issue. Wainwright v. Goode, 464 U.S. 78 (1983), reh'g denied, 465 U.S. 78 (1984); Moreno v. Estelle, 717 F.2d 171, 179 (5th Cir. 1983), Cert. denied, 466 U.S. 975 (1984).
The loss of liberty that parole revocation entails requires that parolees be afforded due process. Gagnon v. Scarpelli, 411 U.S. 778, 781 (1973); Morrissey v. Brewer, 408 U.S. 471, 482 (1972). Persons already at liberty on parole have a conditional liberty interest protected by the Fourteenth Amendment of the Constitution entitling them to certain minimum due process requirements during parole revocation proceedings. Morrissey, 408 U.S. at 489. Among other things, due process requires a preliminary revocation hearing as promptly as convenient after arrest, and a final revocation hearing within a reasonable time after the parolee is taken into custody. Id. at 488. However, a delay in providing these hearings does not constitute a per se due process violation entitling the accused parole violator to immediate release. See Villareal v. United States Parole Commission, 985 F.2d 835, 837-38 (5th Cir. 1993).
Ashford's final revocation hearing was conducted ten and a half months after his arrest, but the fact that the hearing was not conducted within a state-mandated time limit does not constitute an automatic due process violation. Rather, in order for Ashford to obtain habeas corpus relief, he must demonstrate that the delay was both unreasonable and resulted in actual prejudice. Id. (finding 154- day delay between arrest and final revocation hearing did not violate due process absent showing of prejudice) For example, a delay that undermines a parolee's ability to contest the issue of the violation or to proffer mitigating evidence has been recognized as possibly in violation of due process principles. United States v. Williams, 558 F.2d 224, 226-28 (5th Cir. 1977). Ashford makes conclusory arguments about the potential for harm that may result from an unreasonable delay between a parolee's arrest and opportunity to be heard. However, he has failed to demonstrate in this federal proceeding that he was in fact prejudiced by the time that elapsed before his revocation hearing was held. He is not entitled to habeas corpus relief.
Respondent's argument of mootness because a hearing has been held does not address the due process question of prejudice that results from a delayed hearing.
If Ashford is alleging that the delay was in violation of the Sixth Amendment right to a speedy trial, this contention must also fail. The right to a speedy trial is not applicable to probation and parole revocation hearings, because they are not considered stages of a criminal prosecution. United States v. Tippens, 39 F.3d 88, 89 (5th Cir. 1994).
2. Bond
Ashford also complains that he was held without bond pending a final revocation hearing. Ashford's argument that the state courts would have granted him release on bail is speculative and moot. At the time of his arrest on a parole revocation warrant, he was already jailed on charges of aggravated assault with a deadly weapon. There is no clearly established constitutional law granting the right to bail to a releasee arrested and awaiting a hearing for alleged parole violations. See, e.g., Faheem-el v. Klincar, 841 F.2d 712 (7th Cir. 1988) (upholding Illinois statute providing for blanket denial of bail to parolees arrested for criminal offense while on parole against Eighth and Fourteenth Amendment challenges), cited in Hamilton v. Lyons, 74 F.3d 99, 105 n. 7 (5th Cir. 1996). Moreover, Ashford has now had a parole revocation hearing and his parole has been revoked. His complaint is meritless.
3. Ex Post Facto Clause
Ashford also complains that the Board has improperly relied on new parole revocation laws to hold him past the 120-day statutory period prescribed in previous Texas parole laws. Ashford asserts that his original conviction was in 1977, and accordingly, the parole laws then in effect should govern his case. The Texas Legislature has amended the parole laws numerous times and also recodified that body of law since Ashford's conviction and his release on parole. See, e.g., Acts 1995, 74th Leg., ch. 321, § 2.010, eff. Sept. 1, 1995 (adding Sec. 14(c)). Also see Acts 1985, 69th Leg., ch. 427, §§ 1-2; Acts 1987, 70th Leg., ch. 1101, § 10; Acts 1989, 7lst Leg., ch. 785, § 5.01. Most recently as relevant to Ashford's claims, the parole and mandatory supervision laws were amended to provide that the time limits for holding a revocation hearing do not begin to run until after any new offense committed since the parolee's release has been adjudicated and the sentence discharged, or after the prosecutor has dismissed the new charge. TEX. GOV'T CODE ANN. § 508.282(a)(1)(B) (Vernon Supp. 2002).
Article I, Section 10, of the Constitution prohibits the States from passing any ex post facto law. Collins v. Youngblood, 497 U.S. 37, 41, 110 S.Ct. 2715, 2718, 111 L.Ed.2d 30 (1990). The Ex Post Facto Clause is aimed at laws that "retroactively alter the definition of crimes or increase the punishment for criminal acts." Id. at 43, 110 S.Ct. at 2719; Beazell v. Ohio, 269 U.S. 167, 169-170, 46 S.Ct. 68, 68-69, 70 L.Ed. 216 (1925). Retroactive changes in laws governing parole of prisoners, in some instances, may be in violation of this precept. Garner v. Jones, 529 U.S. 244, 120 S.Ct. 1362, 146 L.Ed.2d 236 (2000) (citing Lynce v. Mathis, 519 U.S. 433, 445-446 (1997), and Weaver v. Graham, 450 U.S. 24, 32 (1981)).
But in Dobbert v. Florida, 432 U.S. 282, 293, 97 S.Ct. 2290, 2298, 53 L.Ed.2d 344 (1977), the Supreme Court also held that the prohibition against ex post facto laws does not extend to every change of law that "may work to the disadvantage of a defendant." The Ex Post Facto Clause is intended to secure substantial personal rights against retroactive deprivation and does not limit legislative control of remedies and procedure that do not affect matters of substance. Id. (cited in Portley v. Grossman, 444 U.S. 1311, 100 S.Ct. 714, 62 L.Ed.2d 723 (U.S. 1980)).
The statutory changes of which Ashford complains do not render any previous legal conduct illegal, nor do they increase the punishment for his underlying conviction. The Board's application of the new laws in this case, which resulted in a delay in Ashford's revocation hearing, did not extend custody beyond the original expiration date of his sentence, alter the substantive grounds for parole revocation, or otherwise increase his punishment. Ashford has failed to demonstrate an Ex Post Facto Clause violation. of Cf. California Dep't of Corr. v. Morales, 514 U.S. 499, 509, 115 S.Ct. 1597, 131 L.Ed.2d 588 (1995) (finding no violation where statutory amendment to parole statute created only speculative and attenuated possibility of increasing punishment).
RECOMMENDATION
The Petition for Writ of Habeas Corpus should be denied.
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 hereby 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 July 19, 2002. Pursuant to Carter v. Collins, 918 F.2d 1198 (5th Cir. 1990) and Douglass v. United Services Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc), 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.
ORDER
Pursuant to Section 636, Title 28 of the United States Code, it is hereby ORDERED that each party is granted until July 19, 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, be and hereby is returned to the docket of the United States District Judge.