Brown v. Davis

• Decision Date: 28 November 2017
• Docket Number: CIVIL ACTION NO. 3:17-CV-213
• Parties: SANK MARK BROWN, TDCJ #00778873, Petitioner, v. LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.
• Court: U.S. District Court — Southern District of Texas

SANK MARK BROWN, TDCJ #00778873, Petitioner, v. LORIE DAVIS, Director, Texas Department of Criminal Justice,Correctional Institutions Division, Respondent.

CIVIL ACTION NO. 3:17-CV-213

UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS GALVESTON DIVISION

ENTERED: November 29, 2017

November 28, 2017

MEMORANDUM OPINION AND ORDER

This is a habeas proceeding brought by a person in state custody. The petitioner, Sank Mark Brown (TDCJ #00778873), is a state inmate incarcerated in the Texas Department of Criminal Justice - Correctional Institutions Division ("TDCJ"). In this petition, Brown challenges the retroactive application of a Texas Government Code provision addressing the frequency with which the Texas Board of Pardons and Paroles is required to reconsider for parole release an inmate who has previously been denied parole release. After reviewing the pleadings and applicable law under Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts, the Court concludes that this case must be DISMISSED for the reasons set forth below.

I. BACKGROUND

According to his petition and publicly available records, Brown was sentenced in 1997 to 25 years in prison for aggravated sexual assault with a deadly weapon (Dkt. 1 at p. 2). See Brown v. State, No. 05-97-00353-CR, 1998 WL 401097 (Tex. App.—Dallas July 20, 1998, pet. ref'd as untimely filed). Brown was denied parole at his first hearing (Dkt. 1-3 at p. 4). Under the statutes applicable at the time of his first hearing, the parole board was required to reconsider Brown at least one year, but less than five years, after the date on which he was denied parole (Dkt. 1-4). See Acts 2003, 78th Leg., R.S., ch. 349, § 1, 2003 Tex. Gen. Laws 1520. The length of time between parole hearings is commonly called (including by Brown himself) a "set-off." In other words, under the law applicable at the time of Brown's first parole hearing, his set-off was required to be at least one year long but could not be more than five years long. Brown asked for a set-off of less than the statutory maximum of five years, and he received a set-off of three years (Dkt. 1-3 at p. 4).

After Brown's first parole hearing, the law changed. In 2015, the Texas legislature amended the parole reconsideration statute to provide that, for inmates (like Brown) serving sentences for aggravated sexual assault, set-offs were still required to be at least one year long but could now be up to ten years long. See Acts 2015, 84th Leg., R.S., ch. 358, § 1, 2015 Tex. Gen. Laws 1548. That is where the law currently stands.¹ See TEX. GOV'T CODE § 508.141(g-1). Brown had another parole hearing in 2016, after the new reconsideration provisions had taken effect (Dkt. 1-3 at p. 5). He was again denied parole, and this time his set-off was five years long (Dkt. 1-3 at p. 5). The attachments to Brown's petition and the parole board's notes contained on the TDCJ website² indicate that Brown has been paroled in the past and that he violated the conditions of that parole (Dkt. 1-6 at pp. 1, 3) ("I'm back on a violation.").

Brown's primary complaint in this petition is that the retroactive application of the new reconsideration provisions to his case violates the Ex Post Facto Clause of the United States Constitution (Dkt. 1-3 at p. 5). Brown claims that, after the 2015 amendment, the parole board instituted a policy under which the minimum set-off for inmates like him is five years, which "worsened [his] chances of being considered for parole early" (Dkt. 1-3 at p. 5). He raised this argument in a state habeas petition, which the Texas Court of Criminal Appeals ("TCCA") denied without a written order. See Texas Court of Criminal Appeals Case Number WR-86,562-01. Brown's other complaint is that the TCCA did not adequately address the merits of his Ex Post Facto argument because the state habeas proceedings "focused on the 'illegality' of [Brown's] confinement" without examining the Ex Post Facto issues (Dkt. 1 at p. 6).

II. THE STANDARD FOR OBTAINING FEDERAL HABEAS RELIEF

The federal writ of habeas corpus is an extraordinary remedy which shall not extend to any prisoner unless he is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. §§ 2241(c)(3) & 2254(a); Brecht v. Abrahamson, 507 U.S. 619, 633-34 (1993) (explaining that "the writ of habeas corpus has historically been regarded as an extraordinary remedy, a bulwark against convictions that violate fundamental fairness"). The statutory provisions governing federal habeas proceedings initiated by state prisoners demand that state court decisions be given the benefit of the doubt. Woodford v. Visciotti, 123 S. Ct. 357, 360 (2002). A federal court cannot grant a writ of habeas corpus with respect to any claim that was adjudicated on the merits in state court unless the state court's decision:

(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).

"Pure questions of law and mixed questions of law and fact are reviewed under § 2254(d)(1), and questions of fact are reviewed under § 2254(d)(2)." Martin v. Cain, 246 F.3d 471, 475-76 (5th Cir. 2001) (quotation marks omitted).

A state court decision is contrary to clearly established law if the decision contradicts the governing law set forth by the Supreme Court or if the state court decides a case differently than the Court's precedent when the facts are materially indistinguishable. Early v. Packard, 123 S. Ct. 362, 365 (2002). A state court unreasonably applies federal law if the court "identifies the correct governing legal principle . . . but unreasonably applies that principle to the facts of the prisoner's case." Williams v. Taylor, 120 S. Ct. 1495, 1523 (2000). To be an unreasonable application of federal law, the state decision must be objectively unreasonable and more than simply incorrect or erroneous. Lockyer v. Andrade, 123 S. Ct. 1166, 1174 (2003).

III. THIS COURT CANNOT SHORTEN BROWN'S SET-OFF IN A HABEAS PROCEEDING.

As noted above, Brown asserts that the TCCA did not adequately address the merits of his Ex Post Facto argument because the state habeas proceedings "focused on the 'illegality' of [Brown's] confinement" without examining the Ex Post Facto issues (Dkt. 1 at p. 6). He expresses a concern that the TCCA's alleged failure strips this Court of jurisdiction to hear his federal habeas petition; and he insists that he "is not challenging the legality of his confinement" but is merely attacking "the parole board's set-off methods" as unconstitutional (Dkt. 1-1 at pp. 2-3). These statements raise the question of why Brown chose to pursue this action in the form of a federal habeas petition under 28 U.S.C. § 2254 instead of in the form of a civil rights complaint under 42 U.S.C. § 1983.

Section 1983 is an appropriate vehicle to attack unconstitutional parole procedures on Ex Post Facto grounds if resolution of the plaintiff's claims in his favor would not automatically entitle him to accelerated release. Orellana v. Kyle, 65 F.3d 29, 31 (5th Cir. 1995); see also Wilkinson v. Dotson, 544 U.S. 74, 81-82 (2005). Brown claims that he seeks not accelerated release but merely a shorter set-off, so he could have proceeded under Section 1983. Id. For that matter, if a shorter set-off is all Brown seeks, he should have proceeded under Section 1983, for to shorten his set-off is outside the bounds of this Court's habeas power. "[T]he writ [of habeas corpus] has but one remedy—to direct the liberation of a state prisoner whose confinement violates federal law." Smith v. Lucas, 9 F.3d 359, 366 (5th Cir. 1993), cert. denied, 513 U.S. 828 (1994); see also Fay v. Noia, 372 U.S. 391, 430-31 (1963), overruled on other grounds, Coleman v. Thompson, 501 U.S. 722 (1991) ("Habeas lies to enforce the right of personal liberty; when that right is denied and a person confined, the federal court has the power to release him. Indeed, it has no other power[.]"). The Supreme Court recently noted that it has never recognized habeas as an available remedy where the relief sought does not either terminate custody, accelerate the future date of release from custody, or reduce the level of custody. Skinner v. Switzer, 562 U.S. 521, 534 (2011) (citing Wilkinson, 544 U.S. at 86 (Scalia, J., concurring)).

IV. THE TCCA'S DECISION IS ENTITLED TO DEFERENCE.

In any event, to the extent that Brown is trying to obtain relief that would shorten or terminate his custody, the deferential Section 2254 standard applies. Brown presented his Ex Post Facto argument to the TCCA, and the TCCA denied habeas relief without a written order. When the TCCA denies habeas relief without a written order, the denial constitutes a denial of all the petitioner's non-procedurally-barred habeas claims on their merits. Register v. Thaler, 681 F.3d 623, 626 n. 8 (5th Cir. 2012). A "denial" is distinct from a "dismissal;" a "dismissal" denotes that the TCCA declined to consider the claim for reasons unrelated to the claim's merits. Ex parte Torres, 943 S.W.2d 469, 472 (Tex. Crim. App. 1997). The applicability of the deferential Section 2254 standard does not pivot on whether the state court issued an opinion explaining its reasoning; the state court need not cite Supreme Court caselaw, or even be aware of it. Harrington v. Richter, 562 U.S. 86, 97-100 (2011). In fact, "[w]here a state court's decision is unaccompanied by an explanation, the habeas petitioner's burden still must be met by showing there was no reasonable basis for the state court to deny relief." Id. at 98 (emphasis added). By all indications, Brown's Ex Post Facto claim was adjudicated on the merits in state court, which means that the...