Creel v. Keene

• Decision Date: 16 April 1991
• Docket Number: No. 90-8510,90-8510
• Citation: 928 F.2d 707
• Parties: James Duke CREEL, Petitioner-Appellant, v. Henry B. KEENE, Chairman, Board of Pardons and Paroles, Respondent-Appellee.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 707

928 F.2d 707

James Duke CREEL, Petitioner-Appellant, v. Henry B. KEENE, Chairman, Board of Pardons and Paroles,

Respondent-Appellee.

No. 90-8510

Summary Calendar.

United States Court of Appeals,

Fifth Circuit.

April 16, 1991.

James Duke Creel, Bridgeport, Tex., pro se.

Wm. C. Zapalac, Asst. Atty. Gen., Jim Mattox, Atty. Gen., Austin, Tex., for respondent-appellee.

Appeal from the United States District Court for the Western District of Texas.

Before JOLLY, HIGGINBOTHAM and JONES, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

In 1971, James Duke Creel was convicted of murder by a Texas state court and sentenced to life imprisonment. He now appeals the district court's denial of his habeas petition, arguing that Texas Parole Board's 1990 decision to refuse him parole violated his fourteenth amendment right to due process. The district court rejected Creel's contention on the ground that the Texas parole statute afforded Creel no constitutionally protected liberty interest; we agree and thus affirm.

I

The circumstances surrounding Creel's offense--set out in Creel v. State, 493 S.W.2d 814, 815-18 (1973)--are of no moment to this appeal. The only facts we need mention are those that pertain to Creel's ongoing relationship with the Texas Parole Board.

Creel first became eligible for parole in 1981. Since then, the Board has considered him for parole fourteen times and--on each occasion--has denied him a premature release. Creel's most recent encounter with the Board began on April 13, 1990, when it gave him a tentative parole month of July 1990, pursuant to Tex.Code Crim.Proc. art. 42.18 Sec. 8(a) (Vernon Supp.1990). Less than one month later, on May 10, 1990, the Board notified Creel that he would not be released in July; according to the Board, it had obtained "additional information" indicating that Creel, if released, would "increase the likelihood of public harm."

Creel responded to the Board's 1990 decision by filing the instant petition, ¹ his latest in a long but undistinguished line of habeas applications. ² In it, Creel presented his due process argument alongside a contention that the Board's decision amounted to a Bill of Attainder. The district court denied the petition on August 15, 1990, but, pursuant to 28 U.S.C. Sec. 1915, granted Creel probable cause to lodge this timely appeal.

II

Creel has chosen to drop his Bill of Attainder claim, opting instead to rest his hopes of habeas relief on his due process argument. This argument is moored in Creel's contention that 1987 amendments to the Texas parole statute, Tex.Code Crim.Proc. art. 42.18 (Vernon Supp.1990), gave him a liberty interest in parole sufficient to bring into play the guarantees of the fourteenth amendment. Creel concedes that we addressed a similar contention in an earlier case, Williams v. Briscoe, 641 F.2d 274, 277 (5th Cir.1981), wherein we concluded that "the Texas Adult Probation, Parole and Mandatory Supervision Law, Tex.Code Crim.Proc. art. 42.12 (Vernon 1979), does not create that protectible expectancy of release recognized by the Supreme Court in Greenholtz [v. Inmates of the Nebraska Penal and Correctional Complex, 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668 (1979) ]." He insists, however, that Williams is easily distinguishable in that it antedates the 1987 amendments as well as the Court's holding in Board of Pardons v. Allen, 482 U.S. 369, 107 S.Ct. 2415, 96 L.Ed.2d 303 (1987), on which Creel's position rests.

We cannot further explicate this position without reproducing those 1987 amendments pertinent to Creel's claim of a liberty interest:

Article 42.18 Sec. 8(a):

The board is authorized to release on parole any person confined in any penal or correctional institution who is eligible for parole under section (b) of this section. The board may consider a person for release on parole if the person has been sentenced to a term of imprisonment in the Texas Department of Corrections, is confined in a jail of this state, a federal correctional institution in another state, and is eligible for parole under Subsection (b) of this section. The board shall release a person on parole during the tentative parole month established for the person unless the Board determines that the person's release will increase the likelihood of harm to the public or that the person has failed to progress in the manner required by the board in Subsection (e) of this section. The department shall provide the board with sentence time credit information on persons described in this section. The period of parole shall be equivalent to the maximum term for which the prisoner was sentenced less calendar time actually served on the sentence. Every prisoner while on parole shall remain in the legal custody of the state and shall be amenable to conditions of supervision ordered by the board. All paroles shall issue upon order of the board.

Article 42.18 Sec. 8(e):

Not later than the 120th day after the date on which a prisoner is admitted to the Texas Department of Corrections, the board shall secure all pertinent information relating to the prisoner, including but not limited to the court judgment, any sentencing report, the circumstances of the prisoner's offense, the prisoner's previous social history and criminal record, the prisoner's physical and mental health record, a record of the prisoner's conduct, employment history, and attitude in prison, and any written comments or information provided by local trial officials or victims of the offense. Except as otherwise provided by this subsection, within the 120-day period, the board shall establish a tentative parole month for the prisoner based on information gathered under this subsection and a proposed program of measurable institutional progress the board determines the prisoner must meet before being released on parole. The board is not required to establish a tentative parole month and program of progress if the board determines that to do so would be inappropriate in the prisoner's case and indicates that determination in the prisoner's file. The board shall notify the Texas Department of Corrections of each prisoner's tentative parole month and proposed program of measurable institutional progress. Within 30 days of receipt of the board's notice, the Texas Department of Corrections shall advise the board if any of the proposed programs of measurable institutional progress or the requirements of those programs cannot be achieved within the prisoner's unit of incarceration. The tentative parole month may not be a date that is earlier than the prisoner's initial parole eligibility date, as calculated or projected under Subsection (b) of this section. The board may revise a tentative parole month established under this subsection at any time the board determines is proper. The department shall work closely with the board to carry out the tentative parole program. The board and the department shall adopt a memorandum of understanding that establishes the respective responsibility of the board and the department in the operation of the tentative parole program and in the monitoring of the progress of inmates in the department. The memorandum must also establish an information committee that includes representatives of the board and the department and meets regularly to assess information needs, solve information flow problems, and reduce duplication in information gathering. The information committee shall work towards the development of a common data base that meets the needs of both the board and the department. The board and the department shall coordinate the development of the memorandum of understanding and each by rule shall adopt the memorandum.

Article 42.18 Sec. 8(f):

(2) Before considering for parole a prisoner who is serving a sentence for an offense in which a person was a victim, the board, using the name and address provided on the victim impact statement, shall make a reasonable effort to notify a victim of the prisoner's crime, or if the victim has a legal guardian or close relative of the deceased victim, the notice must contain a request by the board that the guardian or relative inform other persons having an interest in the matter that the prisoner is being considered for parole. If a hearing is held, the board shall allow a victim, guardian of a victim, close relative of a deceased victim, or representative of a victim or his guardian or close relative to provide a written statement. This subsection may not be construed to limit the number of persons who may provide statements for or against the release of the prisoner on parole. The board shall consider the statements and the information provided in a victim impact statement in determining whether or not to recommend parole. However, the failure of the board to comply with notice requirements of this subsection is not a ground for revocation of parole. Before ordering the parole of any prisoner, the board may have the prisoner appear before it and interview him. Parole shall be ordered only for the best interests of society, not as an award of clemency; it shall not be considered to be a reduction of sentence or pardon. The board shall develop and implement standard parole guidelines that shall be the basis criteria on which parole decisions are made. The parole guidelines shall be developed according to an acceptable research method and shall be based on the seriousness of the offense and the likelihood of favorable parole outcome. The Board shall review the parole guidelines periodically and make any revisions considered necessary by virtue of statistical analysis of board actions using acceptable research methodology. A prisoner shall be placed on parole only when arrangements have been made for his employment or for his maintenance and care and when the board believes he is willing and able to fulfill the obligations of a law abiding citizen. Every prisoner while on parole shall remain in the legal...