Opinion
CIVIL ACTION NO. 4:02-CV-043-Y
July 10, 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 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:
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 Timms, TDCJ-ID #723566, is in the custody of the Texas Department of Criminal Justice, Institutional Division and is presently incarcerated in the Powledge Unit, Palestine, Texas.
Respondent Janie Cockrell is the Director of the Texas Department of Criminal Justice, Institutional Division.
C. PROCEDURAL HISTORY
Timms was placed on probation August 4, 1992 in Cause #0483632W in Criminal District Court No. 2, Tarrant County, Texas for vehicle theft ($750-$20,000). Ex parte Timms, No. 49, 616-01, at 25. His probation was revoked and a judgment adjudicating guilt was entered July 12, 1995. Timms was sentenced to eight years' imprisonment. Id. at 36. Timms is also serving a ten-year sentence for a second vehicle theft ($750-$20,000) pursuant to judgment entered March 20, 1995 in Cause #0564070D in Criminal District Court No. 2, Tarrant County, Texas. Ex parte Timms, No. 49, 616-02, at 25. A review of the history of these convictions is not necessary as Timms does not their validity.
In addition, Timms is in custody pursuant to a judgment and eight-year sentence imposed in Cause #0428113W by the 4th Judicial District Court of Tarrant County, Texas on January 3. 1991 for the offense of theft of property ($750-$20,000), and a judgment and ten-year sentence imposed by the 13th Judicial District Court of Navarro County, Texas in Cause #00-00-25636-CR for the offense of possession of a controlled substance. (Resp. Answer. Ex. A).
Timms instead complains of the revocation of his release on mandatory supervision. Timms was released to mandatory supervision on January 27, 1999. He was arrested on January 11, 2001 pursuant to a "blue warrant" issued by the Texas Board of Pardons and Paroles. Ex parte Timms, No. 49, 616-03, at 30. A revocation hearing was held July 27, 2001, and both the field officer and hearing officer recommended revocation. The Board of Pardons and Paroles revoked Timms' mandatory supervision on August 8, 2001. Id
Timms has filed four state applications for writ of habeas corpus. The first, filed May 21, 2001, and the second, filed May 29, 2001, were both denied without written order by the Texas Court of Criminal Appeals on June 27, 2001. Expatie Timnis, No. 49, 616-01 (Tex.Crim.App. June 27, 2001); Ex parte Timms, No. 49, 616-02 (Tex.Crim.App. June 27, 2001). Timms filed a third application on July 18, 2001, which the Texas Court of Criminal Appeals dismissed on November 28, 2001. Ex parte Timms, No. 49, 616-03 (Tex.Crim.App. Nov. 28, 2001). The Texas Court of Criminal Appeals also denied without written order Timms' fourth application, filed October 22, 2001. Ex parte Timms, No. 49, 616-04 (Tex.Crim.App. Jan. 16, 2002).
Timms 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 January 18, 2002.
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. Cain, 149 F.3d 374 (5th Cir. 1998).
D. ISSUES
Petitioner presents the following as grounds for relief
1. He has been denied a timely revocation hearing under state law.
2. The Board of Pardons and Paroles has acted in violation of the Ex Post Facto Clause.
E. RULE 5 STATEMENT
Respondent believes Petitioner has sufficiently exhausted available state remedies on the issues presented, and therefore, does not move for dismissal on this ground.
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)(1).
G. DISCUSSION
1. Timely Revocation Hearing
Timms complains that he has not been afforded a timely final parole revocation hearing because former Texas law required that a revocation hearing be conducted within 120 days following a releasee'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'TCODEANN. § 508.282 (Vernon 1998 Supp. 2002)).
IfTimms 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. A state's interpretation of its own rules or statutes does not raise a federal constitutional issue. Wainwrigh v. Goode, 464 U.S. 78 (1983); Moreno v. Estelle, 717 F.2d 171, 179 (5th Cir. 1983). 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.
The loss of liberty that 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 entithng 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 violator to immediate release. See Villareal v. United States Parole Commission, 985 F.2d 835, 837-38 (sth Cir. 1993).
Timms's final revocation hearing was conducted six 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 Timms 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).
Timms' hearing was held approximately two weeks after his conviction on July 12, 2001 for the misdemeanor offense of deadly conduct against one Brigitte Wilkerson. He was sentenced to seven months in jail for that offense and had not completed that sentence at the time of his revocation hearing. Ex parte Timms, No. 49, 616-03, at 32. The hearing officer further found that one of the special conditions imposed on Timms as part of his release to mandatory supervision was the requirement that he have no contact with Wilkerson. Id. at 30-33.
Timms 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 could have successfully disputed the charges against him at the revocation hearing but for the delay or that he was in fact otherwise prejudiced by the time that elapsed before his revocation hearing was held. Timms is not entitled to habeas corpus relief.
Timms complains that he was harmed because he was denied bond while awaiting his hearing. 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, ally assertion that he would have been able to secure release on bond is speculative as he was also jailed on charges of aggravated assault (involving the use of a stapler and a kitchen knife against Wilkerson), which he later pled down to the misdemeanor deadly conduct offense.
2. Ex Post Facto Clause
Timms 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. See Ex Parte Thnms, No. 49, 616-03, at 28 (Board acknowledgment that newest version of parole laws were being followed). Timms asserts that his underlying convictions date to 1995, 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 Timms's 1995 convictions. See, e.g., Acts 1995, 74th Leg., ch. 321, § 2.010, eff Sept. 1, 1995 (adding Sec. 14(c)). Most recently as relevant to Timms'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 person's release on parole or mandatory supervision has been adjudicated and the sentence discharged, or after the prosecutor has dismissed the new charge. TEX. GOVT CODE ANN. § 508.282(a)(I)(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 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 Timms 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 Timms's revocation hearing, did not extend custody beyond the original expiration date of his sentence, alter the substantive grounds for revocation of his mandatory supervision, or otherwise increase his punishment. Timms has failed to demonstrate an Ex Post Facto Clause violation. 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.
ORDER
Pursuant to Section 636, Title 28 of the United States Code, it is hereby ORDERED that each party is granted until August 1, 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.