United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND OPINION
ROSENTHAL, CHIEF UNITED STATES DISTRICT JUDGE.
state inmate Osmin Luna Rivas filed a petition for a writ of
habeas corpus under 28 U.S.C. § 2254, challenging the
denial of his release on parole. The respondent, Lorie Davis,
answered and moved for summary judgment. Rivas has not
responded. Based on careful consideration of the pleadings,
the motion, the record, and the applicable law, this court
concludes that Rivas has not stated meritorious grounds for
federal habeas relief, denies his § 2254 petition, and,
by separate order, enters final judgment. The reasons are
Background and Claims
pleaded guilty to three charges of engaging in organized
criminal activity and was convicted in a Dallas County court
in Cause Numbers F-9801512-R, F-9801516-R, and F-9801508-R.
In August 1998, he was sentenced to concurrent 20-year prison
terms in each cause. In this federal habeas petition, Rivas
challenges the denial of his release on parole, not his
did not file an application for a state writ of habeas corpus
under Article 11.07 of the Texas Code of Criminal Procedure
to assert his parole-related claims. In this federal petition
filed in August 2017, Rivas contends that the Texas Board of
Pardons and Paroles abused its discretion in denying him
parole, deprived him of his right to due process, and
violated the Double Jeopardy Clause. The respondent argues
that Rivas fails to state a claim on which federal habeas
relief can be granted. Each claim and argument is analyzed
against the record and the applicable legal standards.
The Legal Standard
judgment is proper when the record shows "no genuine
issue as to any material fact and that the moving party is
entitled to judgment as a matter of law." Fed.R.Civ.P.
56(a). In ordinary civil cases, a district court considering
a motion for summary judgment must construe disputed facts in
a light most favorable to the nonmoving party. See
Anderson v. Liberty Lobby, Inc., 427 U.S. 242, 255
(1986) ("The evidence of the nonmovant is to be
believed, and all justifiable inferences are to be drawn in
his favor."). "As a general principle, Rule 56 of
the Federal Rules of Civil Procedure, relating to summary
judgment, applies with equal force in the context of habeas
corpus cases." Clark v. Johnson, 202 F.3d 760,
764 (5th Cir. 2000). However, a court on summary judgment
must view the evidence through "the prism of the
substantive evidentiary burden." Anderson, 427
U.S. at 254. Congress, through AEDPA, has constricted both
the nature and availability of habeas review. This court
applies general summary judgment standards to the extent they
do not conflict with the AEDPA. See Smith v.
Cockrell, 311 F.3d 661, 668 (5th Cir. 2002) ("[Rule
56] applies only to the extent that it does not conflict with
the habeas rules."), abrogated on other grounds by
Tennard v. Dretke, 542 U.S. 274 (2004).
is representing himself. Self-represented habeas petitions
are construed liberally and are not held to the same
stringent and rigorous standards as pleadings lawyers file.
See Martin v. Maxey, 98 F.3d 844, 847 n.4 (5th Cir.
1996); Guidroz v. Lynaugh, 852 F.2d 832, 834 (5th
Cir. 1988); Woodall v. Foti, 648 F.2d 268, 271 (5th
Cir. Unit A June 1981). Rivas's federal habeas petition
is broadly construed. Bledsue v. Johnson, 188 F.3d
250, 255 (5th Cir. 1999).
habeas relief cannot be granted unless the petitioner alleges
the deprivation of a right secured to him by the United
States Constitution or the laws of the United States.
Teague v. Quarterman, 482 F.3d 769, 773 (5th Cir.
2007) (citing Hillard v. Bd. of Pardons &
Paroles, 759 F.2d 1190, 1192 (5th Cir. 1985)). Prison
inmates are entitled to due-process protection when an
official action impacts a constitutionally protected liberty
interest. See Sandin v. Conner, 515 U.S. 472 (1995).
A state has no duty to establish a parole system and there is
no constitutional right to be released on parole before the
expiration of a valid sentence. See Board of Pardons v.
Allen, 482 U.S. 369, 378 n.10 (1987) ("statutes or
regulations that provide that a prole board 'may'
release an inmate on parole do not give rise to a protected
liberty interest"); Greenholtz v. Inmates of the
Neb. Penal & Correctional Complex, 442 U.S. 1, 11
(1979) (a statute that "provides no more than a mere
hope that the benefit will be obtained ... is not protected
by due process"). The Fifth Circuit has recognized
repeatedly that the Texas parole statutes create no
constitutional right to release on parole. See Williams
v. Briscoe, 641 F.2d 274, 277 (5th Cir. 1981) (The Texas
parole statute does not create a protectable expectancy of
release, as recognized in Greenholtz v. Inmates of the
Nebraska Penal & Correctional Complex, 442 U.S. 1, 7
(1979), but rather creates nothing more than a hope of
parole); see also Allison v. Kyle, 66 F.3d 71, 74
(5th Cir. 1995); Orellana v. Kyle, 65 F.3d 29 (5th
Cir. 1995); Gilbertson v. Texas Board of Pardons and
Paroles, 993 F.2d 74, 75 (5th Cir. 1993); Creel v.
Keene, 928 F.2d 707, 712 (5th Cir. 1991). It is well
settled that Texas inmates "have no protected liberty
interest in parole." Johnson v. Rodriguez, 110
F.3d 299, 308 (5th Cir. 1997). Because Rivas has no right to
or liberty interest in parole, he cannot state a due process
claim on the decision to deny it.
Double Jeopardy Clause claim is also deficient. He argues
that the Board's repeated parole denials based on his
criminal history or the nature of his offense punishes him
repeatedly for the same offense. The Double Jeopardy Clause
provides, "[n]or shall any person be subject for the
same offense to be twice put in jeopardy of life or
limb." U.S. Const. Amend. V. Parole is the discretionary
and conditional release of an eligible inmate to serve the
remaining part of a prison sentence under the supervision of
the Board. See Tex. Gov't Code Ann. §
508.001(6) (emphasis added). The denial of parole is not an
additional punishment for the original offense. Olstad v.
Collier, 326 Fed. App'x.261, 265, 2009 WL 1116284,
at *3 (5thCir.2009)(citing Coronado v. U.S. Bd.
of Parole, 540 F.2d 216, 218 (5th Cir. 1976)). The fact
that Rivas may be eligible for parole but remains confined is
not a double jeopardy violation.
fails to state an actionable basis for federal habeas relief.
respondent's motion for summary judgment, (Docket Entry
No. 8), is granted; Rivas's petition for a writ of habeas
corpus, (Docket Entry No. 1), is denied, and this case is