Parker v. Stephens, No. 4:2015cv01067 - Document 41 (S.D. Tex. 2019)
Court Description: MEMORANDUM OPINION AND ORDER granting 36 MOTION for Summary Judgment with Brief in Support. The habeas corpus petition is dismissed with prejudice. COA is denied. (Signed by Judge Sim Lake) Parties notified.(gclair, 4)
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Parker v. Stephens Doc. 41 United States District Court Southern District of Texas ENTERED November 13, 2019 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOU STON D IV IS ION David J. Bradley, Clerk STEVE VIC PARKER , a/k/a Jerry Wilson, TDCJ #590690, Petitioner, V. CIVIL ACTION NO . H -15-1067 LORIE DAVIS , Director , Texas Department of Crim inal Justice - Correctional Institutions Division , Respondent . MEMODAMDUM OPINION AND ORDER While confined at a prison facility in Huntsville, Texas , the petitioner, Steve Parker, also known as Jerry Wilson (TDCJ #590690), filed a Petition for a Writ of Habeas Corpus by a Person in State Custody (npetition'') (Docket Entry No . administration of his sentence . challenging the Pending before the court Respondent's Motion for Summary Judgment w ith Brief ('ARespondent's MSJ'') (Docket Entry No. 36). Support The petitioner has filed a reply (lhpetitioner's Reply/') (Docket Entry No. After considering all of the pleadings, the state court records, and the applicable law , the court will grant the Respondent's MSJ and will dismiss this action for the reasons explained below . Dockets.Justia.com Backcround and Procedural Historv When the petitioner filed this action he was incarcerated by the Texas Department Crim inal Justice Correctional Institutions Division CATDCJ/') at the Holliday Unit in Huntsville as the result more than one state court criminal conviction . Those convictions and the sentences that the petitioner received are summarized briefly below . On April 25, 1991, the petitioner was convicted and sentenced years' imprisonm ent for unauthorized use a motor vehicle Bell County Cause No . 39,082 .1 The petitioner was released from prison form of parole known as mandatory supervision 1992 .2 petitioner's supervised release was revoked and returned to prison after he was convicted of two counts of theft The McLennan County Cause petitioner was sentenced serve concurrent term s of seven years' imprisonment on each count of theft , running consecutively 20-year sentence that he received previously number 39,082.4 the Bell County cause As a result , the seven-year sentences that lludgment on Plea of Guilty or Nolo Contendere Before Court Eandj Waiver of Jury Trial, Docket Entry No. 11-3, at 2. zAffidavit of Charley Valdez (nvaldez Affidavit'o , Docket Entry No . 11-4, at 3 . 3ludgment No . 11-2, at 2, 1Id . Conviction by Jury Nunc Pro Tunc , Docket Entry received in were nstacked'' on top of he received previously On April 2013, supervision error 1991 .5 petitioner was released on mandatory after incorrectly by prison officialsx sentences were calculated When TDCJ realized mistake an ''erroneous release warrant'' issued executed following dayx custody after twenty-year sentence June 2013, and was petitioner returned TDC J hearing was conducted regarding his e r r o n e o u s release .' On April 23, 2015, the petitioner filed the pending Petition under 2254, U .S .C . calculation of from sen ten ce .g The granted respondent's motion for summary judgment and dismissed the petition August challenged 2015, observing petitioner had previously calculation of his sentence habeas proceeding that filed a previous federal 2013, concluding bsee Ex rarte Wrigley, 178 S.W.3d 828, 830-31 (Tex. Crim . App . 2005) (holding that pursuant to Tex. Code Crim. Proc. Art. 42.08(b) na stacked sentence does not begin to run on the date the defendant makes parole on the original offense if his parole is revoked before the trial court sentences the defendant for the stacked offense/'). 6valdez A ffidavit , Docket Entry No . 11-4, 8Id . at gpetkt kon , Docket Entry No . 12-18 . pending Petition was a habeas relief that required prior authorization from the Fifth Circuit under 28 U.S.C . 5 2244(b) decision, vacated The remanding case consideration . See Parker v . Davis, F.3d for further (5th Cir. 2019). Acknowledging that the petitioner's p leadings were ''convoluted,'' within the prohibition applications : second-or-successive writ seven-year sentences were improperly stacked and ushould have started as soon as he returned to prison and were otherwise operate or void Constitutioni'' and under various clauses the ''his rearrest and reprocessing 2013, as well as the circumstances surrounding them , violated his right due process under the Fourteenth Amendment .'' Id . at State court records reflect that the petitioner raised 50th of above-referenced claims Corpus Seeking Relief from he filed charley Valdez, 2014.11 an Application a Writ Habeas Final Felony Conviction Under Code After considering affidavit from Program Supervisor TDCJ Classification and Records Department , state habeas corpus loMemorandum Opinion and Order, Docket Entry No. H state Habeas Applicationr Docket Entry No . 13-24, pp . court found that the petitioner's sentence was correctly calculated and recommended denying reliefx z The Texas Appeals agreed and denied relief without Criminal written order on findings made by the trial court on February 2015 .13 The respondent now moves for summary judgment, arguing that the petitioner's challenge to the calculation of stacked sentences in not actionable federal habeas corpus proceedingx l respondent argues further that proceedings held following warrant in Claim release The petitioner's challenge arrest the erroneous release which asserts that he was entitled to immediate mandatory supervision , is moot because Parker has been released from custody has obtained relief that WaS seekingxs Standard of Review To the extent that the petitioner's claims were raised and rejected state his Petition governed by the Anti- Terrorism and Effective Death Penalty Act (the 'AAEDPA/Q , codified as amended 28 5 2254(d). Under the AEDPA federal H Findings of Fact and Conclusions of Law on an Application for Writ of Habeas Corpus, Docket Entry No . 13-22, pp . 16-19. HA ction Taken on Writ No . 22 ,317-20, Docket Entry No . MRespondent 's MSJ , Docket Entry No . 36, pp . l5((d habeas corpus court may not grant relief unless the state court's adjudication nresulted involved an Federal unreasonable law , as state U.S.C. clearly by Supreme established Court the 2254 4d)(1). court's decision established federal contrary application determ ined United States g.j'' VA decision deemed contrary clearly if it reaches a legal conclusion in direct conflict with a prior decision of reaches Supreme Supreme Court on materially indistinguishable facts.'' Matamoros v . Stephens, 783 F.3d 212, (5th Cir. 2015) (citations omitted); see also Williams v. Tavlor, l20 application 1495, 1519-20 (2000). To constitute an uunreasonable clearly established federal state court's holding umust be objectively unreasonable, not merely wrong; even clear error will not suffice .'' Woods v . Donald , 1697, 1702 (quoting White v. Woodall, (2014)). required presented satisfy habeas petitioner 'show that the state court's ruling on the claim being federal was lacking justification there was an error well understood and comprehended in existing 1aw beyond any possibility for Harrington v . Richter, Id. (quoting 786-87 (2011)). 111 . Discussion A. Claim 1 : Petitioner's Claim That His Sentences Were Improperly Stacked Liberally construed , the petitioner contends in Claim that the concurrent seven-year prison sentences that he received for his Mcclennan County theft conviction in 2010 were improperly stacked with the zo-year prison sentence that he had previously received in 1991, when he returned to prison after the revocation of his parole x 6 He argued in state court that his seven -year sentences could not be stacked because he was on mandatory supervision from his 1991 conviction when he committed the thefts that resulted in a new conviction 2010 and , therefore , that the seven-year sentences that he received from Mcclennan County should have commenced immediately when they were entered against him in 2010, rather than calculated to run consecutively x 7 The state habeas corpus court rejected this claim and found that Parker 's sentences were properly calculated following his conviction for theft in 2010, which also resulted in the revocation of his supervised release on parole x 8 In reaching that conclusion the state court relied on the affidavit from Charley Valdez, who explained that the sentences Parker received for theft in 2010 were l6petition , Docket Entry No . pp . Ustate Habeas Application , Docket Entry No . 13-24, pp . 10-11 . l8Findings of Fact and Conclusions of Law on an Application for Writ of Habeas Corpus, Docket Entry No . 13-22, pp . 16-19 . requ ired to be ustacked'' or calculated as consecutive , and not concurrent with the previous 20-year sentence that he received in 1991 , based on an interpretation of state law that determines when a sentence that is second in time commences to run : Although Applicant's supervision was revoked after he received the new stacked sentences, because he was released to mandatory supervision and not on parole on (June 6, 2008J, his sentences are being calculated as consecutive and not concurrent . TDCJ has interpreted Ex parte Wriqley as being applicable only to offenders released to parole and not to mandatory supervision . Ex parte Wriqlev, l78 S.W .3d 828, 831 (Tex . Crim . App . 2005) (a stacked sentence does not begin to run on the date the defendant makes parole on the original offense if his parole is revoked before the trial court sentences the defendant for the stacked offense) When an offender has consecutive sentences, the second sentence will begin when the first sentence ceases to operate . Mandatory supervision is not an event that causes an offender 's first sentence to cease to operate . Ex parte Cowan , 171 S.W .3d 89O (Tex. Crim . App . 2005), Ex parte Kuester, 21 S.W.3d 264 (Tex . (Crim .) App . 2000).19 The state court found that Valdez's affidavit was utrue , correct, and worthy of belief ./'zo To the extent that the state habeas corpus court found that Valdez's affidavit was credible and that the facts asserted were true , findings such as these are entitled to substantial deference on federal habeas review . See Coleman v . Quarterman , 541 (5th Cir . 2006) (citing Guidry v . Dretke, 397 F.3d 306, 326 (5th 2005)). The state court's factual findings and lgvaldez Affidavit, Docket Entry No . 11-4 , MFindings of Fact and Conclusions of Law on an Application for Writ of Habeas Corpus , Docket Entry No . l3-22 , pp . 16-19 . 8 credibility determinations are presumed correct for purposes of federal habeas corpus rev iew unless they are rebutted with nclear and convincing evidence ./' Cockrell, F.3d 941, not present ev idence 28 U .S.C. 5 2254 (e)(1); Valdez v. (5th Cir. 2001) challenge any The petitioner does the fact findings or credibility determ inations made by the state habeas corpus court . Likewise , he has not shown that the state court 's denial of relief 'Nwas based on an unreasonable determination of the facts in light the evidence presented in the State court proceeding .'' U .S .C . 28 2254 (d )(2) . In response to Respondent's MSJ , the petitioner points to a dissent from a decision in a sub sequent state habeas proceeding that he filed after he submitted the federal Petition in this case . In that dissenting opinion, which issued on June 28, 2017, a judge who was on the Texas Court of Criminal Appeals questioned whether the petitioner 's seven -year sentences for theft should have been concurrent rather than stacked and considered discharged based on a 2016 court decisionzl that issued after the state habeas corpus court issued its decision on the petitioner's pending claim s in 2015 .22 Because the issue had been considered previously on state zlExhibit G, Dissenting Opinion in Ex parte Steve Vic Parker , aka Jerry Wilson , Writ No . 22,317-25, Docket Entry No . 37-1, pp. 16-18 (citing Byrd v. State, 499 S.W .3d 443 (Tex . Crim . App. 2016). 22Action Taken on Writ No . 22,317-20, Docket Entry No . 13-19 p. 1. habeas review, a majority the Texas Court of Criminal Appeals dismissed that claim under Article 11.07 j 4 (a) of the Texas Code Criminal Procedure , which precludes rev iew of subsequent applications unless certain exceptions apply .23 Review of the decision reached by court 2015, which is the subject state habeas corpus the pending Petition, confirms that the ultimate decision to deny relief was based on an interpretation of state law regarding whether the trial court correctly imposed a stacked sentence 2010 . well established that a state court 's decision based on state 1aw is entitled to considerable deference on federal habeas review . Arnold v . Cockrell, 3O6 F.3d See (5th Cir . 2002) C'We will take the word of the highest court on criminal matters of Texas as to the interpretation of its law , and we do not sit to rev iew that state's interpretation of own law'') (quoting Seaton v . Procunier, 75O F.2d 366, 368 (5th Cir 1985)). The petitioner has not shown that the state habeas corpus court 's decision to deny relief was incorrect when it was made in 2015 .24 Even assuming that there was an error under state law , the 23see Ex parte Steve V ic Parker , aka Jerry Wilson , Writ No . 22,317-25, slip op . pp. 1-2 (Tex . Crim . App . June 28, 2017), available at Texas Judicial Branch website, http ://search.txcourts. gov (last visited Nov . 6, 2019) 24To the extent that the petitioner now claims that he is entitled to relief for reasons that he attempted to litigate in state court after he filed the Petition in this case in 2015, this (continued .- ) 10 petitioner cannot show that he is entitled to federal habeas corpus relief . The Supreme Court has repeatedly held that ''federal habeas corpus relief does not lie for errors of state law .'' Estelle v . McGuire, 502 U.S . 62, 67-68 (1991); Lewis v . Jeffers, 497 U.S . 764, (1990); Pulley v . Harris, (1984). ''A state prisoner seeking federal rev iew of his conv iction pursuant to 28 U .S .C . 2254 must assert a v iolation of a federal constitutional right.'' Lawrence v . Lensing, 42 F.3d 255, 258 (5th Cir . 1994). Federal habeas corpus relief w ill not issue state correct errors of constitutional , statutory , or procedural federal issue is also presented . law , unless a Pemberton v . Collins, 991 F .2d 1218, 1223 (5th Cir . 1993). The petitioner does not establish that the state habeas corpus court 's decision regarding the calculation of the seven-year sentences that he received in McLennan County Cause number 2010- M t.- continued) new claim has not been properly raised in this proceeding , which concerns only whether relief was improperly denied in 2015 . The petitioner has not requested leave to amend or supplement his Petition to include this argument as a new claim based on a change in state court decisional law referenced by the dissenting opinion that he provides . See Mccoskey v . Thaler, 478 F . App 'x 143, 2012 WL 1933570 at *9 (5th Cir. May 29, 2012) (citing Fed . Civ . P. 15 (a) and United States v . Sangs, 31 F App 'x 152 , 2001 WL 1747884 , at *1 (5th Cir. Dec. 11, 2001) (affirming, in 5 2255 context, the district court 's refusal to consider an issue raised for the first time in reply to the government's answer to a habeas petition) (citations omittedl). More importantly, the error, if any, concerns an issue of state 1aw that the Texas Court of Criminal Appeals has considered and declined to remedy, rejecting the claim under Tex . Code Crim . Proc. Art. 11.07 5 4(a). 447-C1 violated clearly established United States Supreme Court . law decided by the Absent a showing that the state court's decision to deny relief was contrary to or involved an unreasonable application of the 1aw as established by the United States Supreme Court, the petitioner has not established that he entitled to federal habeas relief . respondent B. Therefore, the entitled to summary judgment on Claim Claim 2 : Petitioner's Claim That He is Entitled to Immediate Release In Claim 2, the petitioner contends that he was denied due process when he was arrested and returned TDCJ in 2013 , following his erroneous release from prison .25 He contends that the procedures employed were defective and that he is entitled to immediate release because he shou ld have been allowed to remain on mandatory supervision .z6 The respondent correctly notes that this claim n ow mo ot because the petitioner has been released from prison onto mandatory supervision . The Supreme Court has explained petition becomes moot and must be dismissed present lsq a case or controversy under Article that habeas uno longer 2 of the Constitution .'' Spencer v . Kemna, 118 S . Ct . 978, 983 (1998); see also Already, LLC v Nike, Incw zspetition , Docket Entry No . 726-27 (2013) pp . 26Id .; aee also Petitioner 's Reply to the Respondent 's Motion for Summary Judgment , Docket Entry No . 37, pp . 5-6, 10-11 . 12 (holding that a case becomes moot and no longer presents an actual case or controversy for purposes of subject matter jurisdiction under Article III of the United States Constitution uwhen the issues presented are no longer 'live' or the parties lack a legally cognizable interest in the outcome.'') (citation and internal quotation marks omitted). Because the petitioner has been released to mandatory superv ision there is nothing for this court to remedy where his allegations in Claim 2 are concerned . A s a result, Claim 2 is now moot . See Spencer , 1l8 at 983 . Therefore , Respondent's MSJ on this issue w ill be granted and this case will be dismissed . IV . Rule C ER T IFICA T E OF A PP EA LA BIL ITY the Rules Governing Section Cases requ ires a district court to issue or deny a certificate of appealability when entering a final order that adverse the petitioner . certificate of appealability w ill not issue unless the petitioner makes substantial showing of the den ial a constitutional right/'' 28 U .S.C. 5 2253 (c)(2), which requires a petitioner to demonstrate uthat reasonable jurists would find the district court 's assessment of constitutional claims debatable or wrong .'' Tennard v . Dretke , 124 S . Slack v . McDaniel, 12O 2562, 2565 (2004) (quoting Ct. 1595, 1604 (2000)). Where denial of relief is based on procedural grounds , the petitioner must show not only that 'ljurists of reason would find it debatable whether the 13 petition states a valid claim the denial of a con stitutional rightz'' but also that they ''would find it debatable whether the district court was correct in its procedural ru ling .'' Slack , Ct. at 1604. whether any ruling Because reasonable jurists would not debate in this case was correct or whether the petitioner states a valid claim for relief from the challenged state court decision that was made 2015, a certificate of appealability will not issue . CONCLUSION Based on the foregoing , the court ORDERS as follows : Respondent's Motion for Summary Judgment with Brief Support (Docket Entry No. 36) is GRANTED. The habeas corpus petition filed by Steve Vic Parker a/k/a Jerry Wilson is DISMISSED with prejudice. A certificate of appealab ility is DENIED . The Clerk will provide a copy of this Memorandum Opinion and Order to the parties . SIGNED at Houston , Texas , on this 13th day of November, 2019. A SIM LA K E SENIOR UNITED STATES DISTRICT JUDGE 14
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