Speed v. Davis

UNITED STATES DISTRICT COURT April 13, 2020

SOUTHERN DISTRICT OF TEXAS David J. Bradley, Clerk

HOUSTON DIVISION

JACKIE WORN SPEED, §

TDCJ #1784817, §

§

Petitioner, §

§

VS. § CIVIL ACTION NO. 4:19-cv-3416

§

LORIE DAVIS, Director, Texas §

Department of Criminal Justice, §

Correctional Institutions Division, §

§

Respondent. §

MEMORANDUM AND ORDER

Jackie Worn Speed is currently incarcerated in the Texas Department of

Criminal Justice – Correctional Institutions Division (“TDCJ”). Speed has filed a

federal habeas corpus petition under 28 U.S.C. § 2254 to challenge an adverse

decision by the Texas Board of Pardons and Paroles, which denied him early release

from prison on mandatory supervision [Doc. # 1]. The respondent has filed a motion

for summary judgment [Doc. # 7], arguing that Speed is not entitled to relief. Speed

has filed a reply to the motion [Doc. # 9]. After reviewing all of the pleadings, the

state court record, and the applicable law, the respondent’s motion will be granted

and this action will be dismissed for the reasons explained below.

I. BACKGROUND

On April 24, 2012, Speed entered a guilty plea to a charge of

“driving while intoxicated – 3rd or more,” otherwise known as “felony DWI,” in

Hutchinson County, Texas, in cause number 10,537 [Doc. # 8-2, at 53–55, 61–65].

Those charges were enhanced for purposes of punishment from a third-degree felony

to a second-degree felony because Speed acknowledged that he had a prior felony

conviction for felony DWI that had been entered against him in 2010 [Id. at 53–54].

That same day, the 316th Judicial District Court for Hutchinson County found Speed

guilty and sentenced him to a 11-year term of imprisonment [Id. at 53–55]. Speed

is presently serving that sentence at the Pack Unit in Navasota [Doc. # 1-4, at 1].

On January 29, 2019, Speed received written notice from the Texas Board of

Pardons and Paroles (the “Parole Board”) that he was eligible for release on

discretionary mandatory supervision [Doc. # 7-1, at 2]. The notice advised Speed

that the Parole Board would review his file along with all available records to

determine if he would be released and instructed him to submit any additional

information he wanted the Parole Board to consider within thirty days [Id.]. The

notice also advised him, however, that pursuant to Texas Government Code

§ 508.149(b) his release to mandatory supervision would not occur if the Parole

Board determined that his “accrued good conduct time is not an accurate reflection

of [his] potential for rehabilitation and that [his] release would endanger the public”

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[Id.].

On April 12, 2019, the Parole Board issued a written decision denying Speed

release on mandatory supervision [Doc. # 7-1, at 4]. The Parole Board listed five

reasons for its decision:

9D1. The record indicates that the offender’s accrued good conduct

time is not an accurate reflection of the offender’s potential for

rehabilitation.

9D2. The record indicates that the offender’s release would endanger

the public.

1D. The record indicates that the offender has repeatedly committed

criminal episodes that indicate a predisposition to commit criminal acts

upon release.

3D. The record indicates excessive substance use involvement.

5D. The record indicates unsuccessful periods of supervision on

previous probation, parole, or mandatory supervision that resulted in

incarceration, including parole-in-absentia.

[Id.].

On June 19, 2019, Speed filed a state application for writ of habeas corpus,

challenging the Parole Board’s adverse decision [Doc. # 8-2, at 6–34]. In that

application, Speed primarily argued that the Parole Board violated his constitutional

due process rights when it denied his release to mandatory supervision [Id. at 11,

13–14]. In particular, Speed argued that he had accrued the necessary time credits

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to warrant his “immediate release” [Id.]. On August 7, 2019, the Texas Court of

Criminal Appeals denied the application without written order [Doc. # 8-1, at 1].

In a federal habeas petition that was received on September 10, 2019, Speed

now seeks relief from the Parole Board’s decision under 28 U.S.C. § 2254. Speed

contends that he is entitled to immediate release on mandatory supervision for

essentially the same reason that he raised in state court [Doc. # 1-4, at 6]. The

respondent has filed a motion for summary judgment, arguing that Speed’s petition

should be dismissed because it is without merit [Doc. # 7]. Speed has filed

objections to the motion [Doc. # 9].

II. STANDARD OF REVIEW

The claims asserted by Speed were raised and rejected on state habeas corpus

review. As a result, these claims are subject to review under the Antiterrorism and

Effective Death Penalty Act (the “AEDPA”), codified at 28 U.S.C. § 2254(d). Under

this standard, a federal habeas corpus court may not grant relief unless the state

court’s adjudication “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[.]” 28 U.S.C. § 2254(d)(1).

“A state court’s decision is deemed contrary to clearly established federal law

if it reaches a legal conclusion in direct conflict with a prior decision of the Supreme

Court or if it reaches a different conclusion than the Supreme Court on materially

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indistinguishable facts.” Matamoros v. Stephens, 783 F.3d 212, 215 (5th Cir. 2015)

(quoting Gray v. Epps, 616 F.3d 436, 439 (5th Cir. 2010)). To constitute an

“unreasonable application of” clearly established federal law, a state court’s holding

“must be objectively unreasonable, not merely wrong; even clear error will not

suffice.” Woods v. Donald, 575 U.S. 312, 316 (2015) (quoting White v. Woodall,

572 U.S. 415, 419 (2014)). “To satisfy this high bar, a habeas petitioner is required

to ‘show that the state court’s ruling on the claim being presented in federal court

was so lacking in justification that there was an error well understood and

comprehended in existing law beyond any possibility for fairminded disagreement.’”

Woods, 575 U.S. at 316 (quoting Harrington v. Richter, 562 U.S. 86, 103 (2011)).

The AEDPA standard “imposes a ‘highly deferential standard for evaluating

state-court rulings, . . . [which] ‘demands that [state-court] decisions be given the

benefit of the doubt[.]” Renico v. Lett, 559 U.S. 766, 773 (2010) (citations omitted).

This standard is intentionally “difficult to meet” because it was meant to bar

relitigation of claims already rejected in state proceedings and to preserve federal

habeas review as “a ‘guard against extreme malfunctions in the state criminal justice

systems,’ not a substitute for ordinary error correction through appeal.” Richter, 562

U.S. at 102–03 (quoting Jackson v. Virginia, 443 U.S. 307, 332, n.5 (1979) (Stevens,

J., concurring)).

This deferential standard of review applies even where the state court fails to

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cite applicable Supreme Court precedent or fails to explain its decision. See Early

v. Packer, 537 U.S. 3, 7 (2002); see also Richter, 562 U.S. at 100 (confirming that

Ҥ 2254(d) does not require a state court to give reasons before its decision can be

deemed to have been ‘adjudicated on the merits’”). Thus, a federal habeas court’s

inquiry is not altered where, as here, the state court denies relief without a written

opinion. See Schaetzle v. Cockrell, 343 F.3d 440, 443 (5th Cir. 2003).

III. DISCUSSION

Speed primarily complains that the Parole Board violated his constitutional

right to due process by denying him early release to mandatory supervision because

he has accrued more than enough time credits to justify his immediate release [Doc.

# 1-4, at 6]. The respondent correctly notes that Speed does not demonstrate that he

was denied due process when the Parole Board decided that he was not entitled to

release for discretionary reasons.

In Texas, there are two ways in which an inmate becomes eligible for early

release from prison: the first is by “parole” and the second is by “mandatory

supervised release.” Teague v. Quarterman, 482 F.3d 769, 774 (5th Cir. 2007).

“Parole . . . is ‘the discretionary and conditional release of an eligible inmate

sentenced to the institutional division so that the inmate may serve the remainder of

the inmate’s sentence under the supervision of the pardons and paroles division.’”

Teague, 482 F.3d at 774 (quoting Tex. Gov’t Code § 508.001(6)). Because parole

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is entirely discretionary, there is no liberty interest in parole that is protected by the

Due Process Clause. See Teague, 482 F.3d at 774; Orellana v. Kyle, 65 F.3d 29, 31–

32 (5th Cir. 1995).

Mandatory supervision, on the other hand, is “the release of an eligible inmate

sentenced to the institutional division so that the inmate may serve the remainder of

the inmate’s sentence not on parole but under the supervision of the pardons and

paroles division.” Tex. Gov’t Code § 508.001(5). In contrast to parole, an inmate’s

release to mandatory supervision is required when the “actual calendar time the

inmate has served plus any accrued good conduct time equals the term to which the

inmate was sentenced.” Tex. Gov’t Code § 508.147(a); Jackson v. Johnson, 475

F.3d 261, 263, n.1 (5th Cir. 2007). An inmate may not be released to mandatory

supervision, however, if he has been convicted of certain crimes listed in Texas

Government Code § 508.149(a), which are not relevant here, or if the Parole Board

determines that (1) the inmate’s accrued good conduct time is not an accurate

reflection of the inmate’s potential for rehabilitation; and (2) the inmate’s release

would endanger the public. See Tex. Gov’t Code § 508.149.

Both the Fifth Circuit and the Texas Court of Criminal Appeals have held that

the mandatory supervision scheme creates a protected liberty interest that entitles

eligible inmates to the minimum amount of due process protection. See, e.g.,

Teague, 482 F.3d at 776; Ex parte Geiken, 28 S.W.3d 553, 557–58 (Tex. Crim. App.

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2000). In this context, constitutional due process requires that an eligible inmate be

provided “notice and a meaningful opportunity to be heard.” Geiken, 28 S.W.3d at

560 (citing LaChance v. Erickson, 522 U.S. 262, 266 (1998)). In the typical case,

an inmate must be given notice of the month and year in which he will be reviewed

for release to mandatory supervision at least thirty days before the review takes

place. Ex parte Retzlaff, 135 S.W.3d 45, 50 (Tex. Crim. App. 2004). If release is

denied, “the inmate must be informed in what respects he falls short of qualifying

for early release.” Geiken, 28 S.W.3d at 560. Due process, however, does not

require a live hearing before the Parole Board, nor does it “require that the [Parole]

Board provide the particulars in the inmate’s file upon which it rested the decision

to deny release.” Id. (citations omitted); see also Boss v. Quarterman, 552 F.3d 425,

426, 429 (5th Cir. 2008) (holding inmate received due process when the Parole

Board’s decision denying release to mandatory supervision listed statutory reasons

for the denial but did not offer any evidence from the record to support its findings).

Here, Speed does not claim that he was denied adequate notice or an

opportunity to be heard prior to the Parole Board’s decision. In fact, the record

indicates that Speed received sufficient advance notice that he was being considered

for early release on mandatory supervision and given an opportunity to provide

additional information to the Parole Board [Doc. # 7-1, at 2]. The Parole Board also

provided Speed with a written explanation of its decision to deny him release, listing

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several reasons, including the statutory factors outlined in § 508.149(b) of the Texas

Government Code [Doc. # 7-1, at 4]. Under these circumstances, Speed was

afforded all the process that was due. See Geiken, 28 S.W.3d at 560.

Speed objects and repeats his argument that he should be released

immediately based on the accumulation of his time-credits [Doc. # 9, at 5–6].

However, Speed does not dispute that he was afforded adequate notice and an

opportunity to be heard by the Parole Board.1 Accordingly, Speed does not show

that he was denied release to mandatory supervision without due process or that the

state court’s decision was contrary to or an objectively unreasonable application of

Supreme Court precedent for purposes of federal review under 28 U.S.C.

§ 2254(d)(1). Because Speed has failed to show that he is entitled to relief, the Court

will grant the respondent’s motion for summary judgment and dismiss this case.

IV. CERTIFICATE OF APPEALABILITY

Rule 11 of the Rules Governing Section 2254 Cases requires a district court

to issue or deny a certificate of appealability when entering a final order that is

adverse to the petitioner. See 28 U.S.C. § 2253(c). A certificate of appealability

1 Although Speed also appears to argue that he was denied due process on state habeas

review because he was not given an opportunity to object [Doc. # 9, at 4–5], it is well

established that “infirmities” or errors that occur during state collateral review proceedings

“do not constitute grounds for relief in federal court.” Rudd v. Johnson, 256 F.3d 317, 319

(5th Cir. 2001) (quoting Trevino v. Johnson, 168 F.3d 173, 180 (5th Cir. 1999)) (citations

omitted).

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will not issue unless the petitioner makes “a substantial showing of the denial of a

constitutional right,” 28 U.S.C. § 2253(c)(2), which requires a petitioner to

demonstrate “that reasonable jurists would find the district court’s assessment of the

constitutional claims debatable or wrong.” Tennard v. Dretke, 542 U.S. 274, 282

(2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)).

After careful review of the pleadings and the applicable law, the Court

concludes that reasonable jurists would not find the assessment of the constitutional

claims debatable or wrong. Because the petitioner does not otherwise allege facts

showing that his claims could be resolved in different manner, a certificate of

appealability will not issue in this case.

V. CONCLUSION AND ORDER

Accordingly, the Court ORDERS as follows:

1. The respondent’s motion for summary judgment [Doc. # 7] is

GRANTED.

2. The habeas corpus petition filed by Jackie Worn Speed under 28 U.S.C.

§ 2254 [Doc. # 1] is DENIED, and this case is DISMISSED with

prejudice.

3. A certificate of appealability is DENIED.

The Clerk’s Office will provide a copy of this order to the parties.

SIGNED at Houston, Texas on April 13, 2020.

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