SANCHEZ v. QUARTERMAN

XAVIER RODRIGUEZ, District Judge

On this date, the Court considered Petitioner Sanchez's Rule 59(e) motion to alter or amend judgment (Docket No. 14). For the reasons discussed below, the motion is DENIED.

On May 9, 2007, the Court accepted the Magistrate Judge's recommendation and dismissed Petitioner's 28 U.S.C. § 2254 petition for writ of habeas corpus as barred by limitations. The Court entered Judgment on the same date. Because petitioner failed to file this petition within the applicable one-year limitations period created by the Antiterrorism and Effective Death Penalty Act ("AEDPA"), the Court found that Petitioner's habeas petition was untimely filed. Alternatively, to the extent that the petition could be construed to assert a claim under 42 U.S.C. § 1983, the Court dismissed the claim as frivolous because it lacked an arguable basis in law or fact. Because a prisoner has no liberty interest in obtaining parole in Texas, the Court concluded that Petitioner could not complain of the constitutionality of procedural devices attendant to parole decisions.

Petitioner signed his motion to alter or amend judgment on May 17, 2007. A prisoner's federal habeas corpus petition is deemed filed when he delivers the petition to prison officials for mailing to the district court. Coleman v. Johnson, 184 F.3d 398, 401 (5th Cir. 1999). Because Petitioner filed his motion within ten days after the Court entered Judgement, the motion will be treated as a motion to alter or amend judgment pursuant to Rule 59(e) of the Federal Rules of Civil Procedure. Lavespere v. Niagara Mach. Tool Works, Inc., 910 F.2d 167, 173 (5th Cir. 1990); FED. R. CIV. P. 6(a). A Rule 59(e) motion to alter or amend judgment is also referred to as a motion for reconsideration. Simmons v. Reliance Stand. Life Ins. Co., 310 F.3d 865, 868 n. 1 (5th Cir. 2002). The purpose of Rule 59(e) motions is to correct manifest errors of law or fact or to present newly discovered evidence. Lavespere, 910 F.2d at 174.

Petitioners instant petition for a writ of habeas corpus challenges what he calls an "unconstitutional parole process." Petitioner claims that at a Texas Board of Pardons and Paroles (TBPP) hearing on or about November 8, 2005, the TBPP violated his Due Process Rights by failing to provide him with adequate notice that it made an affirmative finding that he had used a knife during the commission of the murder. He further claims the TBPP's finding was improper because the jury found the "object unknown." He argues that the finding of the use of a knife has resulted in the TBPP improperly classifying his offense for parole review purposes and improperly delaying his eligibility for future parole review.

Petitioner argues that the Court erred when it concluded that his habeas claim was barred by AEPDA's one-year limitations period.

28 U.S.C. § 2254(d) provides in relevant part:

(1) A 1-year period of limitation shall apply to an application for a writ of habeas corpus by a person in custody pursuant to the judgment of a State court. The limitation period shall run from the latest of —

(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.

Petitioner claims the TBPP violated his due process rights at the November 8, 2005 parole hearing, and that this violation resulted in an improper classification of his offense, which improperly delays his eligibility for parole review. Because the AEDPA one-year limitations period began to run on "the date on which the factual basis of the claim or claims could have been discovered through due diligence," the Court previously concluded that Petitioner's habeas claim first accrued on November 8, 2005, when the TBPP found that Sanchez used a knife during the commission of the murder. Petitioner filed his state habeas application on December 12, 2006, and the Texas Court of Criminal Appeals denied Petitioner's state habeas action without written order on February 28, 2007. Because Petitioner filed his state habeas application on December 12, 2006, this filing did not serve to toll the running of the AEDPA one-year limitations period, which expired on November 8, 2006. Because Petitioner did not file his instant habeas corpus petition until March 12, 2007, the Court found that Petitioner's habeas petition was time barred.

In his Rule 59(e) motion, Petitioner argues that he did not discover until January 27, 2006 that the parole hearing officer had considered his use of a knife during the commission of the murder. For purposes of this motion, the Court will assume that the earliest date on which the factual predicate of his habeas claim could have been discovered through the exercise of due diligence was January 27, 2006. Under normal circumstances, the one-year limitations period would have expired on Monday, January 29, 2007; however, Petitioner's filing of his state habeas application on December 12, 2007 tolled the limitations period until forty-nine days after February 28, 2007 (the date the Texas Court of Criminal Appeals denied Petitioner's state habeas application). Thus, Petitioner's filing of his federal habeas application on March 12, 2007 would be timely if the factual predicate of Petitioner's habeas claim could not have been discovered through the exercise of due diligence until January 27, 2006.

In its previous Order, the Court concluded that Petitioner might have alleged a valid section 1983 claim. Petitioner argues that the finding of the use of a knife has resulted in the TBPP improperly classifying his offense for parole review purposes and improperly delayed his eligibility for future parole review. If his petition could be construed to allege a claim under section 1983, the Court concluded that Petitioner's claim would not be time-barred because the two-year statute of limitations applicable to his section 1983 claim would not run until November 8, 2007 at the earliest. See Helton v. Clements, 832 F.2d 332, 335 (5th Cir. 1987) ("[T]he [section 1983] statute of limitations begins to run from the moment the plaintiff becomes aware that he has suffered an injury or has sufficient information to know that he has been injured").

The Court found that success on the merits of this action might simply "enhance eligibility for accelerated release," such that Petitioner's claim would be cognizable under section 1983. See Orellana, 65 F.3d at 31 ("A claim that has an indirect impact on whether a claimant eventually receives parole may still be cognizable under § 1983. If such a § 1983 complaint contains both habeas and § 1983 claims, the district court should separate the claims and decide the § 1983 claims"). Arguably, Petitioner's success in this action would only have an "indirect impact" on whether he eventually received parole.

Even assuming that Petitioner's putative section 1983 claim is valid, the Court concluded that it lacked an arguable basis in law or fact. Petitioner's federal habeas claim fails for the same reason this his section 1983 claim failed. "[N]either habeas nor civil rights relief can be had absent the allegation by a plaintiff that he or she has been deprived of some right secured to him or her by the United States Constitution or the laws of the United States." Hilliard v. Bd. of Pardons and Paroles, 759 F.2d 1190, 1192 (5th Cir. 1985) (emphasis added). The Fifth Circuit has held that "Texas law does not create a liberty interest in parole that is protected by the Due Process Clause." Allison, 66 F.3d at 74; Creel v. Keene, 928 F.2d 707, 712 (5th Cir.), cert. denied, 501 U.S. 1210 (1991); Cruz v. Texas Parole Div., 87 Fed. Appx. 346, 347 (5th Cir. 2004); Martin v. Texas Bd. Of Criminal Justice, 60 S.W.3d 226, 230 (Tex.App.-Corpus Christi 2001, no pet.). Because a prisoner has no liberty interest in obtaining parole in Texas, the prisoner cannot complain of the constitutionality of procedural devices attendant to parole decisions. Orellana, 65 F.3d at 32. There is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence. Greenholtz v. Inmates of the Neb. Penal Correctional Complex, 442 U.S. 1, 7 (1979). "[S]tatutes or regulations that provide that a parole board `may' release an inmate on parole do not give rise to a protected liberty interest" implicating due process protections. Board of Pardons v. Allen, 482 U.S. 369, 378 n. 10 (1987); See Scales v. Mississippi State Parole Board, 831 F.2d 565, 566 (5th Cir. 1987) ("The distinction between whether a prisoner shall or may be given parole critically differentiates his expectation of release, and hence his rights under the due process clause of the fourteenth amendment") (emphasis in original). The Texas Court of Criminal Appeals has held that "[t]he parole panel has great discretion in the regular parole review process as an inmate does not have a statutorily vested liberty interest in being released on parole". Ex parte Retzlaff, 135 S.W.3d 45, 49 (Tex.Crim.App. 2004) (citing Ex parte Geiken, 28 S.W.3d 553, 558 (Tex.Crim.App. 2000)). Parole means "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." TEX. GOV'T CODE § 508.001(6). It does not matter whether Petitioner challenges the parole review process through a habeas corpus action or a section 1983 action; the fact remains that Texas law does not create a liberty interest in parole that is protected by the Due Process Clause.

In contrast to the regular parole review process, Texas' mandatory supervision statute does vest a liberty interest in the eligible inmate. Retzlaff, 134 S.W.3d at 49; TEX. GOV'T CODE § 508.001(5). Unlike parole, which requires that the Board vote in favor of release, the mandatory supervision statute requires that the offender be released absent Board action to the contrary. Id. at 49 n. 11. The mandatory supervision statute provides that a prisoner shall be released to mandatory supervision when his actual time served and accrued good conduct time add up to his total sentence. TEX. GOV'T CODE § 508.147(a); Geiken, 28 S.W.3d at 558. In this case, Petitioner has not alleged that he is entitled to be released to mandatory supervision, so the Court assumes that this case involves a discretionary parole decision. Considering the fact that Petitioner is serving a ninety-nine year sentence, it appears that he is not currently eligible for mandatory supervision.

Petitioner also argues that Article I, Section 19 of the Texas Constitution "requires notice and a hearing before the government can come up with this affirmative finding of use or exhibition of weapon." Even assuming that the Due Process Clause of the Texas Constitution affords Petitioner this right, which this Court does not decide, this state constitutional claim is not cognizable in a federal habeas proceeding because Petitioner has not alleged a deprivation of some right secured to him by the United States Constitution or the laws of the United States.

In his motion, Petitioner attacks the integrity of this Court by stating that the Court engaged in an "extrajudicial investigation exhibiting favoritism and partiality." Petitioner also stated that this Court dismissed the action based on "personal bias" towards Petitioner. This Court has merely stated the law and followed it. The parole board's decision regarding whether to release an inmate is discretionary, and the law of this circuit holds that the discretionary nature of parole release in Texas does not give rise to a protected liberty interest implicating due process protections. See, e.g., Palmer v. Texas Bd. of Paroles, 89 Fed. Appx. 857, 858 (5th Cir. 2003).

Petitioner's Rule 59(e) motion to alter or amend judgment is DENIED.

It is so ORDERED.