Olvera v. Stephens, No. 4:2015cv02335 - Document 4 (S.D. Tex. 2015)
Court Description: MEMORANDUM OPINION AND ORDER. A certificate of appealability is DENIED. (Signed by Judge Sim Lake) Parties notified. (cfelchak, 4)
Download PDF
<![CDATA[
Olvera v. Stephens Doc. 4 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION RAUL OLVERA, TDCJ #1302419, Petitioner, v. WILLIAM STEPHENS, Director, Texas Department of Criminal Justice - Correctional Institutions Division, Respondent .1 § § § § § § § § § § § § CIVIL ACTION NO. H-15-2335 MEMORANDUM OPINION AND ORDER The petitioner, incarcerated in the Raul Olvera Texas (TDCJ #1302419), Department of Correctional Institutions Division ("TDCJ"). is an inmate Criminal Justice Olvera has filed a Petition for a Writ of Habeas Corpus By a Person in State Custody under 28 U.S.C. § 2254 to challenge an adverse parole decision ("Olvera's Petition"). a Memorandum of Law Memorandum of Law"). (Docket Entry No.1) in Support of [his] (Docket Entry No.2) He has also submitted Petition ("Olvera's After reviewing the pleadings under Rule 4 of the Rules Governing Section 2254 Cases in 1The petition lists the "Texas Parole Board" as the respondent. Because the petitioner is in the custody of the Texas Department of Criminal Justice Correctional Institutions Division, Director William Stephens is substituted as the proper respondent pursuant to Rule 2(a) of the Rules Governing Section 2254 Cases in the United States District Courts. Dockets.Justia.com the United States District Courts the court concludes that this I case must be dismissed for the reasons explained below. I. On June 10 charges of 1 2004 1 Background Olvera was convicted upon his guilty plea to possession with intent Harris County case number 1009434. Harris County I Texas to deliver in The 176th District Court of sentenced Olvera to 25 years I heroin imprisonment. l Olvera did not appeal. Olvera does conviction. not Instead challenge l the validity of his underlying Olvera challenges a decision made by the Texas Board of Pardons and Paroles ("Parole Board ll ) in November of 2014 1 which resulted in the denial of his early release on parole. 2 In his sole ground for relief Board has denied him release l Olvera contends that the Parole on parole on three successive 2There are two primary ways in which a Texas inmate becomes eligible for early release from imprisonment. The first is by "parole ll and the second is by "mandatory supervisionll release. "Parole ll means "the discretionary and conditional release of an eligible inmate sentenced to the institutional division so that the inmate may serve the remainder of the inmate/s sentence under the supervision of the pardons and paroles division. TEX. GOVI T CODE § 508.001 (6) . "Mandatory supervisionll is "the release of an eligible inmate so that the inmate may serve the remainder of the inmate/s sentence not on parole but under the supervision of the pardons and paroles division. TEX. GOV/T CODE § 508.001(5). Whereas parole is wholly discretionary an inmate s release to mandatory supervision is required subject to certain exceptions when the "actual calendar time the inmate has served plus any accrued good conduct time equals the term to which the inmate was sentenced. Id. at § 508.147(a)i Jacksonv. Johnson 475 F.3d261 263 n.1 (5th Cir. 2007). Olvera states in his Petition that he is not eligible for early release on the form of early release known as mandatory supervision. (Docket Entry No. 11 p. 5) AccordinglYI this case concerns only Olvera/s potential release on parole. II II I I I l II l 1 -2- 1 occasions in violation of his right to due process by repeatedly or "continuously using" the reasons outlined in paragraphs 3D and SD. (Olvera's Petition, Docket Entry No. I, p. 6) Olvera clarifies that paragraphs 3D and SD are standard reasons included in the Parole Board's written decision According to Olvera, denying parole. (rd. at 7.) the Parole Board may deny parole based on paragraph 3D where an inmate's record indicates "excessive drug or alcohol involvement which includes possession, use or delivery in the instant offense or criminal history." (rd.) The Parole Board may deny parole based on paragraph SD where the record indicates "unsuccessful periods of supervision on previous probation, parole or mandatory supervision that resulted in incarceration, including parole in absentia revocations." (rd.) Reasoning that he cannot change the facts of his underlying offense or his unsuccessful record on supervised release in the past, Olvera believes that the Parole Board will continue to deny his parole release based on paragraphs 3D and SD. No.2, pp. 3-4) (Olvera's Memorandum of Law, Docket Entry Olvera alleges that for reasons he cannot contest he will never be granted parole. (rd. at 4.) By repeatedly denying him parole in this manner, Olvera alleges that the Parole Board has acted arbitrarily in violation of his right to due process. II. Discussion Olvera contends that he was denied parole in violation of the Due Process Clause found in the Fourteenth Amendment. -3- There is, however, "no constitutional or inherent right of a convicted person to be conditionally released before sentence." the expiration of a valid Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 99 S. Ct. 2100, 2104 (1979). Prison inmates typically are entitled to protection under the Due Process Clause only when an official action infringes upon a constitutionally protected liberty See,~, interest created by state law. S. Ct. 2293, 2300 (1995) Sandin v. Conner, 115 (citing Board of Pardons v. Allen, 107 S. Ct. 2415 ( 1987) ) . The Fifth Circuit has recognized repeatedly that the Texas parole statutes create no constitutional right to release on parole because they create no expectancy of early release. v. Briscoe, 641 F.2d 274, 277 (5th Cir. 1981) See Williams (Texas parole statute does not create a protectable expectancy of release, creates nothing more than a hope of parole) Kyle, 66 F.3d 71, 74 (5th Cir. 1995) (5th Cir. 1995) i Orellana v. Kyle, 65 F.3d 29 i Creel v. Keene, 928 F.2d 707, 712 Thus, it is settled that Texas inmates "have no protected liberty interest in parole." F.3d 299, 308 (5th Cir. 1997). that he was see also Allison v. Gilbertson v. Texas Board of Pardons and Paroles, 993 F.2d 74, 75 (5th Cir. 1993) (5th Cir. 1991). i i but rather denied parole protected liberty interest, Johnson v. Rodriguez, 110 Because Olvera cannot demonstrate in violation of a constitutionally he is not entitled to habeas corpus relief on this issue. -4- Federal courts are authorized to dismiss habeas corpus petitions without ordering a response where it plainly appears that the petitioner is not entitled to Rule 4, relief. 28 U.S.C. § 2243; Rules Governing Section 2254 Cases in the United States District Courts. Because the claims raised by the petitioner are clearly without merit, Olvera's Petition lacks an arguable basis in law and is subject to dismissal for that reason. Johnson, 139 F.3d 1056, 1060 (5th Cir. See McDonald v. 1998) Accordingly, Olvera's Petition will be denied and this case will be dismissed. III. Certificate of Appealability The habeas corpus Petition in this case is governed by the Antiterrorism and Effective Death Penalty Act of 1996 Pub. L. U.S.C. No. § 104-132, 2253, 110 Stat. 1214, F.3d 1073, 1076 28 codified as amended at 28 which requires a certificate of appealability to issue before an appeal may proceed. either ("AEDPA"), (5th Cir. 1997) U.S.C. appealability). § 2254 or See Hallmark v. Johnson, 118 (noting that actions filed under § 2255 require a certificate of "This is a jurisdictional prerequisite because the COA statute mandates that '[u] nless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals. 1029, 1039 (2003) '" Miller-El v. Cockrell, 123 S. Ct. (citing 28 U.S.C. § 2253 (c) (1)). 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. -5- A certificate of petitioner makes "a constitutional right," appealability will substantial 28 U.S.C. not of showing issue unless the 2253 (c) (2), § denial the of a 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. 2565 (2004) (quoting Slack v. McDaniel, 120 S. Ct. 1595, 1604 (2000)). Under II Dretke, 124 S. Ct. 2562, 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 encouragement to proceed further. '11 Where denial of relief is 'adequate to deserve Miller-EI, 123 S. Ct. at 1039. 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. II Slack, 120 S. Ct. at 1604. A district court may deny a certificate of appealability, sua sponte, without requiring further briefing or argument. Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000). See Because the issue presented concerns a clearly settled area of law, the court concludes that jurists of reason would not debate whether Olvera's Petition states a valid claim for relief or should be -6- resolved in a different manner. Accordingly, a certificate of appealability will not issue. IV. Conclusion and Order Based on the foregoing, the court ORDERS as follows: 1. Raul Olvera's Petition for a writ of Habeas Corpus By a Person in State Custody (Docket Entry No.1) is DENIED. 2. A certificate of appealability is DENIED. The Clerk shall provide a copy of this Memorandum Opinion and Order to the parties. SIGNED at Houston, Texas, on this 26th day of August, 2015. SIM LAKE UNITED STATES DISTRICT JUDGE 7 -7-
]]>
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You
should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google
Privacy Policy and
Terms of Service apply.
