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Delk v. Davis

United States District Court, W.D. Texas, Austin Division

May 11, 2017

LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.



         BEIT 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 and orders.


         Petitioner 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' imprisonment.

         In his 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.

         Although 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].

         Delk 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.


         I. Legal Standard-The Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA)

         As the 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; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented ...

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