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Ellason v. Davis

United States District Court, N.D. Texas, Worth Division

January 11, 2018

THOMAS DEWAYNE ELLASON, Petitioner,
v.
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

          MEMORANDUM OPINION AND ORDER

          JOHN MCBRYDE UNITED STATES DISTRICT JUDGE.

         This is a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed by petitioner, Thomas Dewayne Ellason, a state prisoner confined in the Correctional Institutions Division of the Texas Department of Criminal Justice (TDCJ), against Lorie Davis, director of TDCJ, Respondent. After having considered the pleadings, state court records, and relief sought by Petitioner, the court has concluded that the petition should be denied.

         I. Factual and Procedural History

         The factual background relevant to this case was set out in the district court's opinion and order in petitioner's prior federal habeas-corpus action as follows:

Petitioner is serving a life sentence on his 1987 Tarrant County conviction for capital murder in No. 0295331D for an offense occurring on October 28, 1986. Petitioner was originally sentenced to death, but his sentence was reformed to life imprisonment. Petitioner has never been released from TDCJ on parole or mandatory supervision. He is ineligible for mandatory supervision and has been denied parole on three [previous] occasions.

(Op. and Order, Ellason v. Davis, No. 4:15-CV-510-Y, doc. 12.)

         By way of the instant petition, petitioner challenges the Board's July 18, 2016, denial of parole. (Pet. 2, 6-7, doc. 1.) He asserts that the Texas Board of Pardons and Paroles (the Board) based its denial on the following reason:

2D. The record indicates the instant offense has elements of brutality, violence, assaultive behavior, or conscious selection of victims vulnerability indicating a conscious disregard for the lives, safety, or property of others, such that the offender poses a continuing threat to public safety.

(Pet'r's Mem. 3, doc. 2.) Petitioner was notified of the denial on July 19, 2016. (Resp't's Answer, Ex. A, doc. 13.) His next parole review date will be in June 2023. (Id.)

         II. Issues

         In an exhaustive, single-spaced memorandum, petitioner claims the BOP has abused its discretion by denying him release on parole in violation of the Due Process, Equal Protection, Double Jeopardy, Confrontation, and Ex Post Facto Clauses of the Texas and United States Constitutions and the Supreme Court's decision in Brady v. Maryland. According to petitioner, he has a protected liberty interest in release on parole, but the Texas Board of Pardons and Paroles (the Board) continues to violate his rights by failing to conduct an impartial, unbiased hearing, regarding his suitability; denying him a meaningful opportunity to be heard, to review the contents of his parole file and correct any errors or "false entries, " to present evidence and witnesses in his favor, to be notified of the evidence and witnesses to be used against him, and to be present during the interview with the commissioners assigned to his case; denying him parole each time based on the same "blanket" reason while ignoring "the many positive aspects of his incarceration"; failing to provide "some evidence" to support the denials; failing to consider his good and work time when making its determination; accepting the opinion of a parole counselor; giving him a 7-year set off; punishing him twice for the same criminal offense by denying parole based on the nature of the offense or past criminal record; and applying parole laws not in effect when he committed the offense. (Pet'r's Mem. 2-13, doc. 2.) Petitioner further claims that prison officials have violated his rights under the Cruel and Unusual Punishment Clause, the Rehabilitations Act, and the American with Disabilities Act by failing to consider and allow him to take "rehabilitative class" and "therapeutic community" programs for drug addiction, denying him medical treatment for his serious medical needs, and discriminating against him because of his disabilities. (Id. at 13-22.) Additionally, petitioner claims that, with his flat time and good time, he is entitled to release on mandatory supervision under the law in effect when he committed the crime based on a life expectancy of 60 years, (Id. at 11-12.) Finally, in a supplemental memorandum, petitioner claims that the Texas legislature violated the separation of powers doctrine by placing authority with the Board, instead of a judge, to evaluate and make decisions regarding a prisoner's potential for rehabilitation and whether his release would endanger the public. (Pet'r's Suppl. Mem. 5-7, doc. 17.)

         Petitioner raised one or more of the claims in a state habeas-corpus application, and the state habeas court entered the following legal conclusions relevant to his claims:

3. Release to parole is within the sound discretion of the parole board.
4. Texas prison inmates have no protected liberty interest that is ...

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