United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND OPINION
VANESSA D. GILMORE, UNITED STATES DISTRICT JUDGE
Roberto Nunez, seeks habeas corpus relief under 28 U.S.C.
§ 2254. Online research shows that Nunez was convicted
of the felony offense of aggravated perjury. (Cause Number
63, 517-A). On June 10, 2011, the state court sentenced Nunez
to a 20-year prison term. Nunez indicates that he filed a
state application on March 15, 2018, and it was denied on the
same day. (Docket Entry No. 1, p. 4). Online research shows
that Nunez's state application for postconviction relief
is pending before the Texas Court of Criminal Appeals.
See Texas Judiciary Website,
7, 2018, this Court received Nunez's federal petition.
From his pleadings, this Court previously determined that
Nunez was challenging a state-court felony conviction for
aggravated perjury as well as the denial of release to
parole. After reviewing the petition for a writ of habeas
corpus and available online state court records, this Court
found that the petition may be subject to dismissal for
failure to exhaust state-court remedies. In an order entered
on May 30, 2018, this Court ordered Nunez to file a written
submission by July 2, 2018, showing why this case should not
be dismissed. (Docket Entry No. 7). Nunez complied on June
15, 2018. (Docket Entry No. 8). Nunez states that he does not
attack the validity of this conviction or sentence. Rather,
he challenges the denial of release to parole.
threshold issue is whether this federal petition is subject
to dismissal for failure to state a violation of a federally
district court may examine habeas petitions before an answer
or other responsive pleading is filed. Kiser v.
Johnson, 163 F.3d 326, 328 (5th Cir. 1999). Such a
review is based on "the duty of the court to screen out
frivolous applications and eliminate the burden that would be
placed on the respondent by ordering an unnecessary
answer." 28 U.S.C. § 2254, Rule 4, Advisory
complains of the procedures used by the Texas Board of
Pardons and Paroles to deny his release to parole. (Docket
Entry No. 7). He complains that the Board has:
(1) violated his right to due process and equal protection by
relying on archaic information in his parole file;
(2) abused its discretion in denying parole;
(3) prevented Nunez from reviewing the reasons for the denial
of his parole; and
(4) denied his release to parole based on false information.
(Docket Entry No. 1, Federal Petition, pp. 6-7).
has no constitutional right to parole. Orellana v.
Kyle, 65 F.3d 29, 32 (5th Cir. 1995). The Fifth Circuit
has expressly held that there is no constitutional expectancy
of parole in Texas, Creel v. Keene, 928 F.2d 707
(5th Cir. 1991), and no right to be released on parole.
Madison, 104 F.3d at 768 (citing Tex. Code Crim. P.
Ann. art. 42.18, § 8(a)). Because a prisoner has "no
liberty interest in obtaining parole in Texas, he cannot
complain of the constitutionality of procedural devices
attendant to parole decisions." Allison v.
Kyle, 66 F.3d 71, 73-74 (5th Cir. 1995)(citing
Orellana, 65 F.3d at 32). Nunez's argument that
he is entitled to be considered for release on parole at a
particular time lacks merit.