Nicolas v. Thaler
| Decision Date | 24 November 2010 |
| Docket Number | CIVIL ACTION NO. H-10-0515 |
| Parties | ALBERT NICOLAS, TDCJ #635504,Petitioner, v. RICK THALER, Director, Texas Department of Criminal Justice Correctional Institutions Division,Respondent. |
| Court | U.S. District Court — Southern District of Texas |
State inmate Albert Nicolas (TDCJ #635504) has filed a petition for a federal writ of habeas corpus under 28 U.S.C. § 2254 to challenge the revocation of his parole. The respondent has answered with a motion for summary judgment. (Docket Entry No. 10). Nicolas has not filed a response to the motion and his time to do so has expired. Instead, Nicolas has filed a motion to strike the respondent's answer. (Docket Entry No. 15). After considering all of the pleadings, the records, and the applicable law, the Court grants the respondent's motion and dismisses this case for reasons that follow.
Nicolas is presently in custody of the Texas Department of Criminal Justice-Correctional Institutions Division (collectively, "TDCJ") at the Wynne Unit in Huntsville. The record reflects that Nicolas is incarcerated as the result of more than one conviction from Kerr County, Texas, for aggravated sexual assault of a child. Nicolas also has felony convictions from Kerr County for incest, indecency with a child, and conspiracy to commit sexual assault of a child.
Nicolas does not challenge any of his underlying convictions here. Instead, he challenges the revocation of his early release from prison onto the form of parole known as mandatory supervision. Nicolas was released from prison on May 2, 2008, and transferred from TDCJ to a half-way house (the Ben Reid Community Correctional Facility) in Houston. As a sex offender, Nicolas was subject to restrictive conditions under the Texas Super Intensive Supervision Program ("SISP"), which required him to wear an electronic monitoring bracelet. On August 8, 2008, Nicolas left the half-way house with a "pass" to go to the area Veteran's Administration Hospital. He never returned. After Nicolas did not return as scheduled, officials at the half-way house discovered that he left behind the electronic monitoring bracelet that he was required to wear at all times as one of the terms of his supervised release. Subsequently, Nicolas was arrested in Mississippi and returned to TDCJ, where he remains incarcerated.
Following his arrest, the Texas Board of Pardons and Paroles ("Parole Board") charged Nicolas with committing the following violations of the terms of his release: (1) failing to reside in a specified place; (2) being in the State of Mississippi without permission; (3) failure to participate in electronic monitoring by failing to wear a bracelet or mobile tracking device ("MTD"); (4) failure to comply with his "daily activity schedule"; and (5) failure to reside at the half-way house facility as assigned. Nicolas requested a hearing and an attorney was appointed to represent him. Nicolas objected to his appointed counsel. The Parole Board noted, however, that Nicolas had a "Special Condition" on his certificate of release ("Condition P"), which indicated that Nicolas had " mental health/mental retardation" issues. Therefore, counsel was required to be appointed for him.
At the revocation hearing on September 2, 2008, a parole officer testified about the conditions imposed on Nicolas's release, which imposed the maximum level of supervision, including restrictions on his place of residence and compliance with the electronic-monitoring requirement. Under these conditions, Nicolas was also restricted from leaving the State of Texas without permission. Nicolas admitted that he left his electronic monitoring bracelet behind at the Veteran's Administration Hospital and did not return to his assigned half-way house. Nicolas also admitted leaving the State of Texas to travel to Mississippi, explaining that he felt "trapped" by his parole officer. The hearing officer found that these actions violated the conditions of release and voted to revoke Nicolas's parole. The Parole Board agreed and formally revoked Nicolas's release on September 12, 2008.
On November 13, 2008, Nicolas filed a motion to reopen his revocation hearing on the following grounds: (1) he was denied the ability to prepare for the revocation hearing; (2) he was denied the right to self-representation; and (3) he was denied the right to review the hearing tape before submitting his motion to re-open. Nicolas also alleged that his parole officer conspired with a special prosecutor to deprive him of his right to supervised release. The Parole Board concluded that Nicolas's allegations were "groundless" and denied his motion to re-open on December 5, 2008.
Nicolas challenged the revocation of his parole by filing a state habeas corpus application under Article 11.07 of the Texas Code of Criminal Procedure on September 21, 2009. In that application, Nicolas presented the first three of the above-referenced claims that he raised in his motion to re-open before the Parole Board. The trial court summarily rejected the application and forwarded it to the Texas Court of Criminal Appeals, which denied relief without a written order on November 18, 2009. See Ex parte Nicolas, No. 26, 094-06.
Nicolas now seeks relief from the revocation of his parole under 28 U.S.C. § 2254. In that petition, which is dated February 16, 2010, Nicolas raises the same claims that he presented on state habeas corpus review. In addition, Nicolas also raises a new claim that he was denied the right to appeal in connection with his parole revocation. The respondent maintains that Nicolas's petition must be dismissed as untimely under the governing statute of limitations. Alternatively, the respondent argues that the petition must be dismissed because the claims are without merit. Nicolas has filed a motion to strike the respondent's answer under Rule 12(f) of the Federal Civil Procedure. The parties' contentions are discussed below under the applicable standard of review.
Nicolas has filed a motion to strike the defenses asserted in the respondent's answer, which was submitted in the form of a summary-judgment motion. Under Rule 12(f) of the Federal Rules of Civil Procedure, a court "may strike from a pleading an insufficient defense or any redundant, immaterial, impertinent, or scandalous matter." Motions to strike a defense are generally disfavored and are only proper when the defense is insufficient as a matter of law. See Kaiser v. Aluminum & Chem. Sales, Inc. v. Avondale Shipyards, Inc., 677 F.2d 1045, 1057-58 (5th Cir. 1982); see also United States v. Cushman & Wakefield, Inc., 275 F. Supp. 2d 763, 767 (N.D. Tex. 2002) () (citation omitted). "The motion to strike should be granted only when the pleading to be stricken has no possible relation to the controversy." Augustus v. Board of Public Instruction, Escambia County, 306 F.2d 862, 868 (5th Cir.1962) (citations omitted). If there is any question of fact or law regarding the validity of the defense, the court must deny the motion to strike. See id; see also Resolution Trust Corp. v. Sands, 863 F. Supp. 365, 376 (N.D. Tex. 1994) ().
The motion to strike filed by Nicolas makes no effort to illustrate how any of the defenses asserted by the respondent qualify as insufficient, redundant, immaterial, impertinent, or scandalous for purposes of Rule 12(f). In that respect, for reasons discussed further below, Nicolas fails to establish that the defenses asserted by the respondent in this instance are invalid or inapplicable. Accordingly, the motion to strike under Rule 12(f) (Docket Entry No. 15) will be denied.
The respondent has filed a motion for summary judgment asking this Court to deny relief and dismiss the petition. (Docket Entry No. 10). Motions for summary judgment are typically governed by Rule 56 of the Federal Rules of Civil Procedure. In this instance, the respondent's summary-judgment motion must be determined in compliance with the federal habeas corpus statutes. See Smith v. Cockrell, 311 F.3d 661, 668 (5th Cir. 2002); see also Clark v. Johnson, 202 F.3d 760, 764 (5th Cir. 2000). Federal habeas corpus proceedings filed after April 24, 1996 are governed by provisions of the Antiterrorism and Effective Death Penalty Act (the "AEDPA"), Pub. L. No. 104-132, 110 Stat. 1214 (1996). See Lindh v. Murphy, 521 U.S. 320, 336 (1997). The AEDPA was enacted, at least in part, to ensure comity, finality, and deference to state court determinations by limiting the scope of collateral review and raising the standard for federal habeas relief. See Robertson v. Cain, 324 F.3d 297, 306 (5th Cir. 2003) (citations omitted). The respondent's arguments are addressed below, beginning with the contention that review is barred by the governing one-year statute of limitations.
The respondent maintains that the petition must be dismissed as untimely filed. Under the AEDPA, all federal habeas corpus petitions filed after April 24, 1996, are subject to a one-year limitations period found in 28 U.S.C. § 2244(d). Because the pending petition was filed well after April 24, 1996, the one-year limitations period clearly applies. See Flanagan v. Johnson, 154 F.3d 196, 198 (5th Cir. 1998) (citing Lindh v. Murphy, 521 U.S. 320 (1997)).
Nicolas does not challenge a state court judgment, but attacks instead the administrative revocation of his early release from prison onto parole. Thus, the statute of limitations for federal habeas corpus review began to run pursuant to 28 U.S.C. § 2244(d)(1)(D), from "the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence." Because Nicolas knew or...
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