United States District Court, S.D. Texas, Houston Division
MEMORANDUM AND ORDER
Kenneth M. Hoyt United States District Judge.
case is before the Court on Petitioner Steve Vic Parker's
Petition for Writ of Habeas Corpus and Respondent Lorie
Davis' Motion for Summary Judgment. Having carefully
considered the Petition, the Motion, Parker's response to
the motion, and the arguments and authorities submitted by
the parties, the Court is of the opinion that
Respondent's motion should be GRANTED, and Parker's
Petition for Writ of Habeas Corpus should be DENIED.
relevant facts are not in dispute. Parker was convicted in
1991 of unauthorized use of a motor vehicle and was sentenced
to 20 years imprisonment. He was free on mandatory
supervision from that sentence when he was arrested for
theft. On October 13, 2010, he was convicted of theft and
sentenced to seven years imprisonment. The seven year term
for theft was imposed to run consecutively to the 20 year
sentence imposed in 1991. See SH-23 (Doc. # 21-59)
was denied parole on the theft charge. He contends that this
denial occurred without a hearing or notice in violation of
his right to due process of law.
also contends that the Texas Department of Criminal Justice
has improperly calculated his good time credit. He contends
that this, too, constitutes a violation of due process.
The Summary Judgment Standard
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.), cert.
denied, 531 U.S. 831 (2000). In ordinary civil cases a
district court considering a motion for summary judgment is
required to construe the facts in the case in the light most
favorable to the nonmoving party. See Anderson v. Liberty
Lobby, 477 U.S. 242, 255 (1986). Where, however, a state
prisoner's factual allegations have been resolved against
him by express or implicit findings of the state courts, and
the prisoner fails to demonstrate by clear and convincing
evidence that the presumption of correctness established by
28 U.S.C. § 2254(e)(1) should not apply, it is
inappropriate for the facts of a case to be resolved in the
petitioner's favor. See Marshall v. Lonberger,
459 U.S. 422, 432 (1983); Sumner v. Mata, 449 U.S.
539, 547 (1981). In reviewing factual determinations of the
Texas state courts, this court is bound by such findings
unless an exception to 28 U.S.C. § 2254 is shown.
petition raises two claim for relief. He contends that he was
denied parole without due process of law, and that TDCJ
improperly calculated his good time credit.
raised his parole claim in a state habeas corpus application.
The Texas Court of Criminal Appeals (“TCCA”)
dismissed the application as successive under Tex. Code Crim.
Proc. Art. 11.07 § 4 . See SH-27 (Doc. #
procedural default doctrine may bar federal review of a
claim. “When a state court declines to hear a
prisoner's federal claims because the prisoner failed to
fulfill a state procedural requirement, federal habeas is
generally barred if the state procedural rule is independent
and adequate to support the judgment.” Sayre v.
Anderson, 238 F.3d 631, 634 (5th Cir. 2001).
The Supreme Court has noted that
[i]n all cases in which a state prisoner had defaulted his
federal claims in state court pursuant to an independent and
adequate state procedural rule, federal habeas review of the
claims is barred unless the prisoner can demonstrate cause
for the default and actual prejudice as a result of the
alleged violation of federal law, or demonstrate that failure
to consider the claims will result in a fundamental
miscarriage of justice.
Coleman v. Thompson, 501 U.S. 722, 750 (1991).
“This doctrine ensures that federal courts give proper
respect to state procedural rules.” Glover v.
Cain, 128 F.3d 900, 902 (5th Cir. 1997)
(citing Coleman, 501 U.S. at 750-51), cert.
denied, 523 U.S. 1125 (1998); see also Edwards v.
Carpenter, 529 U.S. 446, 451 (2000) (finding the cause