Cain v. Thaler, No. 4:2010cv00683 - Document 10 (S.D. Tex. 2010)

Court Description: MEMORANDUM OPINION AND ORDER Granting 8 MOTION for Summary Judgment With Brief in Support. Denying 1 Petition.(Signed by Judge Sim Lake) Parties notified.(hcarr, )

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IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION SHANE CAIN, TDCJ-CID NO . 537264, Petitioner, CIVIL ACTION NO . H-10-0683 RICK THALER , Director: Texas Department of Criminal Justice, Correctional Institutions Division , Respondent . MEMOQAHDUM OPIN ION AND ORDER Shane Cain filed Person Petition for a W rit State Custody Habeas Corpus by ( Docket Entry No. challenging the calculation of his consecutive sentences. Pending before the court Respondent Thaler's Motion for Summary Judgment with Brief Support ( Docket Entry No. which argues that Johnson's p etition successive, time-barred, and without merit . Cain responded to the Motion for Summary Judgment Cain v. Thaler Doc. 10 May 2010 ( Docket Entry the reasons stated below , Thaler's motion and deny Cain's petition for COrpuS . Dockets.Justia.com court writ grant habeas 1 . Procedural History and Claim s A. Procedural History On August 3O, 1989, Cain was indicted for the felony of theft over $750.00 as habitual offenderx Cain entered a plea guilty, and was sentenced to twenty-five years' imp risonment by the 364th Judicial November District Court Bell County , Texas, on 1989.2 On September 1991, Cain was indicted the crime retaliation .3 Cain entered a plea of guilty , and was sentenced ninety-n ine years ' imprisonment by the 25th Judicial District Court of Guadalupe County, Texas, on May ordered to served Bell County sentence, 1992 . 4 consecutively The sentence Was twenty-five-year cause number 38,167 . 5 llndictment in Cause No . 38/167/ The State of Texas v . Shane Mcclaine Cain, State Habeas Record WR-18,018-05, Docket Entry No . 6, p . 1. z ludgment on Plea of Guilty or Nolo Contendere Before Court , Waiver of Jury Trial in Cause No . 38,167, The State of Texas v . Shane Mcclaine Cain, State Habeas Record WR-18,018-05 , Docket Entry No . 6, p . 3 . 3lndictment in Cause No . 91-0984-CR, The State of Texas v . Shane Mcclaine Cain, State Habeas Record WR-18 , 018-23, Docket Entry No . 6, p . 23. 4 ludgment on Plea of Guilty or Nolo Contendere , Waiver of Jury Trial in Cause No . 91-0984-CR , The State of Texas v . Shane Mcclaine Cain , State Habeas Record WR-18,018-23 , Docket Entry No . 6, p . 41. 5Id . April 12, 1993, entered a plea of guilty to the crime of possession of a deadly weapon penal institution .6 He was sentenced by the 349th Judicial District Court of Houston County, Texasr thirty-five years' imprisonment be served consecu- tively to his ninety-nine-year Guadalupe County sentence , in Cause No . 91-O984-CR . March 2009, Cain was possessing a prohib ited item entered a p lea guilty indicted for the crime correctional facilityx and was sentenced two of Cain years' imprisonment by the 3rd Judicial District Court of Anderson County , Texas, on September served 2009.8 consecutively sentence in Cause January sentence was ordered thirty-five-year Houston be County 14,288-CR .9 2004, November 2008, and N ovember 19, 2008, Cain filed time-credit dispute resolution form s challenging the calculation sentences Classification and Records Division the Time Section of the the Texas Department E ludgment and Sentence on Plea of Guilty or Nolo Contendere Before Court, Waiver of Jury Trial in Cause No . 14,288-CR , The State of Texas v . Shane Cain , State Habeas Record WR-18,018-16, Docket Entry No. 6, Exhibit A . Vlndictment in Cause No . 29730, The State of Texas v . Shane Cain, State Habeas Record WR-l8,018-28, Docket Entry No . 6, p . 21 . 8ludgment of Conviction by Court-Waiver of Jury Trial in Cause No . 29730, The State of Texas v . Shane Cain , State Habeas Record WR-18,018-28, Docket Entry No . 6, p . 22 . 9Id . at Criminal Justicexo on July 6, 2004, April 2009, and April 2009, Cain received responses stating that there were no errors the calculation denied parole sentencesx l of Guadalupe on June County 2008, Cain was sentence, Cause 38,167.1 2 On November habeas sentences.l : February 2009, Cain filed an application corpus challenging a state calculation of His app lication was denied without written order on 20 10 .14 Cain has previously filed least twelve applications federal writs of habeas corpusx s cain filed an application for a federal writ of habeas corpus complaining that his rights been violated because ceased operate, thus sentence entitling him Cause begin 38,167 had serving lA ffidavit of Charley Valdez, Program Specialist III in the o Classification and Records Department of the Texas Department of Criminal Justice Correctional Institutes Division , Docket Entry No . 8, Exhibit A . ll(d . ( . HBoard of Pardons and Paroles Division M inutes, Docket Entry No . 8, Exhib it B . HApplication for a Writ of Habeas Corpus Seeking Relief from Final Felony Conviction , State Habeas Record WR-18 , 018-28, Docket Entry No . 6, pp . 1, 6-10. MApplication for 11 . 07 W rit of Habeas Corpu s, Action Taken , State Habeas Record WR-18,018-28, Docket Entry No . 6, cover . l scain v . Dretke, No. 2:O3-CV-42O ( N.D. Tex. 2006). - 4- consecutive sentence .l6 In 2002 the application was dismissed as time-barredx7 Cain filed an additional application for a federal writ habeas corpus arguing again that his sentence Cause No . 38,167 should have ceased sentence could commence x8 operate so his consecutive His application Action No. 1:0l-CV-O0189 was dismissed as successivex g In 2003 Cain filed an additional application Cause No . 2 :03-CV-420 federal writ of habeas corpus challenging the calculation his consecutive sentencesx o The petition was dismissed as successive by the Northern District of Texas on April 28, 2006.21 February for 2010, Cain filed the instant federal petition writ of habeas corpus challenging calculation of consecutive sentences ( Docket Entry No. B. Petitioner's Claims Cain asserts the following claims support of his habeas petition : ' 6cain v . Cockrell, Act. SA-O1-CA-1135 ( .D. Tex. W Act . 1:01-CV-00189 ( . N D. Tex . 2002). 1 yd . 7 l cain v . Cockrell, 8 2001). l Id 9 M cain v . Dretke, Civ. Act. No . 2:O3-CV-42O ( . N D. Tex. 2006). 2lTa'* .r Y* The state of Texas created a liberty interest in the determ ination of when a sentence is to cease to operate and a consecutive sentence is to begin . The state of Texas misapplied this liberty interest and deprived him of due process in calculation of his consecutive sentencesx z Respondent argues that Cain 's claims should be dismissed because Cain's habeas petition successive , time-barred , and without merit . II . A. Standard of Review Summnry Judgment A court should grant summary judgment when the pleadings and parties' submissions demonstrate that there is no genuine dispute regarding any material fact and the moving party entitled judgment as a matter of law. FED. R. CI P. 56( V. c). Disputes about material facts are ngenuine' ' reasonable could return the evidence verdict Anderson v . Libertv Lobbv, Inc w 106 such that the nonmoving party . 2505, 2511 ( 1986) The party moving for summary judgment bears the initial burden of demonstrating the ab sence of any genuine issues of material fact. FED. R . 2548, 2553 ( 1986). 56( e); Celotex Corp . v. Catrett, Once S. Ct. m ovant has met this burden, the non-movant must estab lish that there is a genuine issue See Anderson, 106 S .Ct . at 2511. If the non-movant H petition for a Writ of Habeas Corpus by Custody, Docket Entry No . 1, p . 7 . Person trial . unable to State meet this burden, the motion FED. R. B. summary judgment will be granted. 56( c). Presumptions Applied in Habeas Cases When considering a summary judgment motion the court usually resolves any doubts and draws nonmoving party . inferences in favor of the Anderson , amendments to 28 S .Ct . 2513. 5 2254 contained However, the the Antiterrorism and Effective Death Penalty Act of 1996 CA AEDPA/ change the way courts ') consider summary In judgment motions habeas proceeding findings of fact made by statute overrides Cockrell, habeas cases . U. C. S. state court are presumed correct . 2002) ( overruled on other grounds by Tennard v . Dretke, nunarticulated conclusions arrived S. Ct. 2562 ( 2004)). Similarly, findings' ' of state ( quoting Valdez v . Cockrell, ( 5th Cir. 2008) F.3d ( 5th Therefore, a court will accept findings made court as correct unless presumption of court's through mixed 1aw and fact are presumed correct . William s v . Quarterman , 55l F . 3d 2001)) This ordinary summary judgment rule. Smith v. F.3d 661, necessary 2254( ( mandates that e) 1) correctness the state habeas petitioner can rebut clear and convincing evidence . Smith, 311 F .3d provisions evaluation section 22544 d) set forth state-court rulings . deferential Lindh v . Murrhv, 2059, 2066 (1997). A federal court cannot grant a writ habeas corpus with respect to any claim that was adjudicated on the merits in state court unless the state court proceeding : ( 1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly estab lished Federal law, as determined by the Supreme Court of the United States; or ( 2) resulted in a decision that was based on an unreasonab le determ ination of the facts in light of the evidence presented in the State court proceeding . 28 U.S. 5 2254 ( C. d) ( 2009). A decision contrary clearly established federal 1aw the state court arrives at a conclusion opposite to that reached by the Supreme Court on a question a case differently than if the state court decides the Supreme Court has on set of materially indistinguishab le facts . Williams v . Tavlor, 120 S . Ct . 1495, 1519-20 ( 2000). governing legal If a state court correctly identifies the principle, unreasonable manner applies the p rinciple an the facts of the case, the decision is an unreasonable application clearly estab lished federal law . Id . at 1523 . 111 . Analysis Respondent argues that petitioner's claim s are successive, time-barred , and without merit . The court assume without deciding that the claims are neither successive nor time-barred, and will review Cain 's claims the merits . Respondent argues that petitioner's claim s can be dismissed on the merits because - 8- petitioner has raised a purely state law question . A lternatively, respondent argues that no federal constitutional right has been created by the state . The cou rt agrees with 50th of respondent's arguments . A. App licable Law When a Texas p risoner serving consecutive sentences first sentence will ncease to operate' up on a grant of parole for ' that sentence , thereby causing the commencement second sentence. See TE GO X. M'T COD 5 508.150 ( E 1997). Section 508.150 of the Texas Government Code provides the procedure for calculating consecutive sentences : ( a) If an inmate is sentenced to consecutive felony sentences under Article 42.08, Code of Crim inal Procedure, a parole panel shall designate during each sentence the date, if any, the inmate would have been eligible for release on parole if the inmate had been sentenced to serve a single sentence . ( b) For the purposes of Article 42.08, Code of Criminal Procedure, the judgment and sentence of an inmate sentenced for a felony, other than the last sentence in series of consecutive sentences, cease to operate : ( 1) when the actual calendar time served by the inmate equals the sentence imposed by the court; or ( 2) on the date a parole panel designates as the date the inmate would have been eligible for release on parole if the inmate had been sentenced to serve a single sentence . TEX. GOV'T CODE 5 508.150 (1997). B. Cognizable Constitutional Claim To be entitled federal habeas relief allege a federal constitutional deprivation . - 9- petitioner must See Orellana v . Kvle, 65 F. 3d 29, 31 ( 5th Cir. 1995) Department Crim inal Here, Cain challenges the Texas Justice, Correctional Institutions Division's calculation of his consecutive sentences . To the extent that Cain's claim based on state law , federal habeas review . review cognizable on the function of a federal court state's interpretation of its own law . Cockrell, 306 F .3d court must limit Constitution , laws, ( 5th 2002). See A rnold v . Instead, a federal habeas corpus review to violations of the treatises of the United States . 28 U .S.C . 5 2241 ( 2008); Estelle v . McGuire, S. Ct. (1991). Cain alleges that under TEX. GOV'T CODE 5 508 .150 a parole panel required designate nparole 'eligibility' date for each separate consecutive sentence .'z3 He contends that on this date / eligibility a p risoner has the right to u Acease to operate' a pre- final ' judgment and sentence'' and ' sentence .z 4 Cain clarifies th is commence a subsequent claim his Response Respondent's Motion for Summary Judgment : . the Texas Legislature has already defined the meaning of the phrase 'ELIGIBLE FOR RELEASE ON PAROLE' to ' ' mean an exact, non-discretionary date based on the amount of calendar time and good time credits earned by the inmate NOT the discretionary date of actual 'PAROLE ' APPROVAL' by a parole pane1.2 ' 5 M petition for a Writ of Habeas Corpus Custody, Docket Entry No . 1, p . 7E . Person State 2 Id d M petitioner Cain 's Response to Respondent's Motion for Summary Judgment, Docket Entry No . 9, p . 3 . - 10- Because of this definition by the Texas Legislature, Cain contends, prisoners must only 'become A ' ELIGIBLE FOR RELEASE ON PAROLE' g n ol their prior sentence order Applying this standard eligible release start their next sentence .'z '6 his case on parole asserts that he according now Gov'T CODE 5 508.150, and therefore his two-year Anderson County sentence in Cause No . 29730 should begin .2 7 The Texas Court of Crim inal Appeals, considered an argument similar Ex rarte Kuster, that presented by Cain . S. 3d 264, 27O ( W. Tex. Crim. App. 2000). The court there rejected the contention that the phrase uceases operate ' ' TEX. GOV'T COD 5 508.150 ( refers merely to the date on which the prisoner E b) became statutorily eligible sentence nceases operate' ' decision of the parole panel. parole . Id . Instead , the date the determined discretionary Id. ( explaining that this the Proper interpretation because the statute uses the phrase 'parole ' panel designates,' ' eligibility) sentence uceases instead referring p risoner's the purpose of determining the date on which a operate' ' consecutive sentence begins, eligibility for parole does not by itself entitle a prisoner parole . Id . The court held that nceases to operate' is determined ' 2 d 6I at 5 . z7 petition for a Writ of Habeas Corpus by a Person Custody, Docket Entry No . 1, pp . 7E-7F . State the date upon which the sentence has been served day-for- by day, the date designated b y a parole panel as the date that the prisoner would have been approved for parole and release if not for the imposition of a consecutive sentence . Cain fails Id . produce evidence establishing that parole panel designated a date by which he would have been released on parole not for his consecutive sentences. He argues instead that eligibility for parole is enough, a claim clearly rejected by the Texas Court of Criminal Appeals . because the court cannot provide challenge of the application For these reasons, and federal habeas relief state 1aw by the Texas Court Criminal Appealsr Cain's claim lacks merit . C. Liberty Interest Cain claims that his rights to procedural due process under the Fourteenth Amendment were violated . Amendment Under the Fourteenth the United States Constitution deprive any person of life, liberty, process of law .' U . . Const . amend . XIV , $ ' S State shall) property, without due Persons wishing obtain protection must establish that one of the Due Process Clause interests is at stake . See Wilkinson v . Austin , S .Ct . 2384, 2393-95 ( 2005) ( holding that prisoners had a liberty interest assignment designed a nSupermax' facility, ' highly restrictive facility segregate dangerous prisoners, because imposed nan atypical and significant hardship' upon the imprisonment context) ' States can, under certain lim ited circum stances, protected liberty interests for prisoners . 2293, ( 1995). create Sandin v . Conner, Cain claims that the state created a liberty interest through Texas Government Code 5 508.150, and thus this liberty interest entitled him to release from his twenty-fiveyear Bell County sentence in Cause No . 38,167, his ninety-nine-year Guadalupe County sentence in Cause five-year Houston County sentence commencing two-year 91-0984 and thirty- Cause No . 14,288-CR , thereby Anderson County sentence Cause No . 29730 .2 8 Fifth Circuit has expressly held that constitutionally protected liberty interest there parole no Texas because parole is within the total and unfettered discretion of the state. See Teaque v. Ouarterman, F.3d 769, ( 5th 2007); see also Madison v . Parker, 104 F.3d 765, 767 ( 5th Cir. 1997). Parole conditional Texas defined as nthe discretionary and release eligible inmate sentenced 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. Go ' v'T CODE 5 508. 011(6) ( 2004). Because Cain has no liberty interest in obtaining parole in Texas, has no claim for violation of due process the z' Petitioner Cain's Response to Respondent's Motion for Summary Judgment, Docket Entry No . 9, 6. procedures attendant parole decisions . See Orellana, F .3d at 32 . Without a cognizable liberty interest Cain cannot use the Due Process Clause to challenge parole procedures. Rodriquez, 1OO F .3d Johnson v . 1997). The court concludes that because that state recognizes no liberty interest in parole, Cain cannot challenge the state parole procedure under the Due Process Clause Fourteenth Amendment . Therefore , Cain's claim is without merit . D. Dismissal of Claim s Without Merit Federal courts are authorized to dismiss federal habeas petitions if it plainly appears that the petitioner is not entitled relief . 28 U .S .C . 2243; Rule Rules Governing Section 2254 Cases in the United States District Courts . Cain 's habeas petition will be dismissed because McDonald v . Johnson, lacks an arguable basis in law . See F.3d 1056, 1060 ( 5th Cir. 1998); Newbv v. Johnson, 81 F. 567, 568-69 ( 3d 5th Cir. 1996). IV . Certificate of Appealability Although Cain has requested Appealability C' COA'), the court may deny a ' Alexander v. Johnson, COA for Certificate sua soonte. of See F.3d 895, 898 ( 5th Cir. 2000). To obtain claims denied merits substantial showing of the denial of Johnson must make constitutional right. 5 2253( 2); see also Tennard v. Dretke, c)( 28 S. Ct. 2562, 2569 ( 2004) To make such a showing Cain must demonstrate that the issues are debatable among jurists of reason, that resolve the issues in a different manner, court could that the issues presented are adequate to deserve encouragement to proceed further . Id . Cain's argument is based on an interp retation of TEX. GOV'T CODE f 508.150 that has been rejected by the Texas Court of Criminal Appeals . Ex parte Kuester, S.W .3d at Furthermore, the Fifth Circuit has previously rejected the claim that TEX. GO CODE V'T 508.150( b) creates F .3d at 774; Madison , liberty interest F .3d at parole. Teaque, 482 Therefore, the court finds no issue that is debatable among jurists of reason. Aceordingly, Certificate of Appealability will not issue this case . Conclusion and Order reasons explained above, court ORDERS the following : Respondent Thaler's M otion for Summary Judgment ( Docket Entry No. 8) is GRANTED . Cain 's Petition for a Writ of Habeas Corpus by a Person in State Custody ( Docket Entry No. 1) is DENIED . SIGNED at Houston , Texas, on this the 11th day of June, 2010 . t SIM LAKE UNITED STATES DISTRICT JUDGE

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