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Nunez v. Davis

United States District Court, S.D. Texas, Houston Division

June 26, 2018

ROBERTO NUNEZ, TDCJ-CID #1722171 Petitioner,
v.
LORIE DAVIS, Respondent.

          MEMORANDUM AND OPINION

          VANESSA D. GILMORE, UNITED STATES DISTRICT JUDGE

         I. Background

         Petitioner, 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, http://www.cca.courts.state.tx.us/.

         On May 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.

         The threshold issue is whether this federal petition is subject to dismissal for failure to state a violation of a federally protected right.

         II. Analysis

         A 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 Committee Notes.

         Nunez 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).

         Nunez 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)).[1] 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.

         III. ...


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