United States District Court, W.D. Texas, Austin Division
SPARKS UNITED STATES DISTRICT JUDGE.
REMEMBERED on this day the Court reviewed the file in the
above-styled cause, and specifically Petitioner Darnell Lee
Delk (Delk)'s Petition for a Writ of Habeas Corpus Under
28 U.S.C. § 2254 [#1], Respondent Lorie Davis
(Respondent)'s Answer [#6], and Delk's Reply [#8].
Having reviewed the documents, the governing law, and the
file as a whole, the Court now enters the following opinion
Darnell Delk is in state custody pursuant to three judgments
and sentences: a 1985 aggravated robbery conviction, for
which he was given 90 years' imprisonment; a 1992
conviction for aggravated assault on a correctional officer,
for which he was sentenced to 18 years' imprisonment; and
a 1993 conviction for possession of a deadly weapon in a
penal institution, for which he received seven years'
habeas petition, Delk does not challenge the validity of his
convictions or sentences; rather, he challenges his most
recent denial of parole, which occurred on February 23, 2015.
The Parole Board listed reason 2D as the justification for
the denial. Resp. [#6-3] Ex. C (Valdez Aff.) at 3. A 2D
denial means the Parole Board found Delk's "record
indicates the instant offense has elements of brutality,
violence, assaultive behavior, or conscious selection of a
victim's vulnerability indicating a conscious disregard
for the lives, safety, or property of others, such that the
offender poses a continuing threat to public safety."
See Tex. Board OF PARDONS AND PAROLES,
(last visited May 8, 2017). Delk was notified of the Parole
Board's decision on February 24, 2015. Valdez Aff. at 3.
Delk has filed numerous habeas petitions on other issues,
Delk first challenged the February 2015 parole decision on
July 27, 2015, in a state application for habeas relief.
See Ex parte Delk, Appl. No. 21, 415-12. The Texas
Court of Criminal Appeals dismissed the application as
successive on September 30, 2015. See Id. Delk next
filed a federal petition with this Court on December 14,
2015, in Cause No. A-15-CV-1168-SS, which the Court dismissed
without prejudice for failure to exhaust state remedies on
April 15, 2016. While Cause No. A-15-CV-1168-SS was pending,
Delk filed a second state habeas application on April 11,
2016. See Ex parte Delk, Appl. No. 21, 415-13. State
Record [#7-3]. This second application was dismissed as
noncompliant on June 8, 2016, for failure to follow the Texas
Rules of Appellate Procedure. State Record [#7-2]. Delk
subsequently filed a third state application on June 21,
2016. See Ex parte Delk, Appl. No. 21, 415-14. State
Record [#7-5]. The Court of Criminal Appeals dismissed it as
an abuse of writ on August 24, 2016. State Record [#7-4]. The
instant federal habeas petition, filed on September 8, 2016,
followed. Pet. [#1].
claims the Parole Board's denial of parole violated his
right to due process (1) by relying on the nature of
Delk's crimes, which were committed years ago; (2)
failing to explain its finding Delk is a threat to public
safety; and (3) applying an arbitrary standard, which ignores
rehabilitation achievement. Delk also claims the Parole Board
violated his right to equal protection by not treating him
the same as other parolees and violated his right to be free
from double jeopardy by imposing an additional sentence or
punishment based on the same criminal episodes for which his
original sentences were given. In opposition, Respondent
claims Delk's petition is time-barred and, alternatively,
fails to state a claim cognizable on federal habeas review.
Legal Standard-The Antiterrorism and Effective Death Penalty
Act of 1996 (AEDPA)
United States Supreme Court noted in Harrington v.
Richter, 131 S.Ct. 770, 783-85 (2011), the starting
point for any federal court reviewing a state conviction is
28 U.S.C. § 2254, which states in part:
An application for a writ of habeas corpus on behalf of a
person in custody pursuant to the judgment of a State court
shall not be granted with respect to any claim that was
adjudicated on the merits in State court proceedings unless
the adjudication of the claim-
(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;
(2) resulted in a decision that was based on an unreasonable
determination of the facts in light of the evidence presented