United States District Court, N.D. Texas, Wichita Falls Division
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE
UNITED STATES MAGISTRATE JUDGE
RAY, JR. UNITED STATES MAGISTRATE JUDGE
the Court is a 28 U.S.C. § 2254 habeas corpus petition
(ECF No. 1) (“the Petition”) and Brief in Support
(ECF No. 2) filed by Richard James Johnson
(“Johnson”) on April 9, 2018. Johnson filed a
proper Application to Proceed in forma pauperis with
an attached Certificate of Inmate Trust Account on July 23,
2018. (ECF No. 14). The Court granted Johnson's
Application in an order dated August 31, 2018. After
considering the pleadings and applicable legal authorities,
the undersigned RECOMMENDS that United
States District Judge Reed O'Connor DENY
the Petition WITHOUT PREJUDICE.
is an inmate currently confined in the Alfred Hughes Unit of
the Texas Department of Criminal Justice in Gatesville,
Texas. See Offender Information Details, Texas
Department of Criminal Justice,
04034287 (last visited July 31, 2019). Johnson was convicted
of burglary of a habitation on August 15, 2000 and sentenced
to thirty years' imprisonment by the 159th Judicial
District Court of Angelina County, Texas. Id.
(See also ECF No. 25-2 at 1). Thereafter, Johnson
was convicted of an escape offense on October 18, 2000 and
sentenced to ninety-nine years in prison by the 159th
Judicial District Court of Angelina County, Texas.
Id. (See also ECF No. 25-20 at 4). Prior to
filing the Petition, Johnson filed eight state habeas
applications, directly challenging his convictions. (ECF No.
25-20 at 35-37).
filed the Petition on April 9, 2018, challenging his parole
eligibility hearing that allegedly occurred on March 7, 2018.
(ECF No. 1 at 1, 5). This case was automatically referred to
the undersigned by order dated April 9, 2018. (ECF No. 3).
The undersigned entered a Notice of Deficiency and Order (ECF
No. 7) on June 5, 2018, informing Johnson that he needed to
either pay the $5.00 filing fee or file an Application to
Proceed in forma pauperis with an attached
Certificate of Inmate Trust Account. Johnson was required to
cure the deficiency on or before July 5, 2018.
(Id.). On June 25, 2018, Johnson filed an
Application to Proceed in forma pauperis (ECF No. 8)
that was deficient because he attached a Certificate of
Inmate Trust Account that was not signed by an authorized
officer of the institution in which he was confined.
(Id. at 3).
undersigned entered Findings, Conclusions, and a
Recommendation (ECF No. 9) on June 26, 2018, recommending
that the Petition be dismissed without prejudice for failure
to comply with the Court's order. Johnson filed an
objection to the undersigned's recommendation on July 16,
2018. (ECF No. 10). Judge O'Connor adopted the
undersigned's recommendation and entered final judgment
on July 17, 2018. (ECF Nos. 11-12). Judge O'Connor
dismissed Johnson's Petition without prejudice to his
right to file a Motion to Reopen accompanied by a signed
Certificate of Inmate Trust Account within thirty days of the
final judgment. (ECF No. 11). Johnson filed a Notice of
Appeal (ECF No. 15) to the United States Court of Appeals for
the Fifth Circuit on July 30, 2018.
23, 2018, Johnson filed another Application to Proceed in
forma pauperis with an attached and signed Certificate
of Inmate Trust Account. (ECF No. 14). Judge O'Connor
entered an Order Reopening Case (ECF No. 16) on August 10,
2018 in which he explained that because Johnson cured the
deficiency within thirty days of the final judgment, it was
“apparent that he wishe[d] to proceed with this
[case].” (Id.). Judge O'Connor vacated the
order and judgment and reopened the case. (Id.).
O'Connor referred this case to the undersigned “for
a hearing, if necessary, and findings of fact, conclusions of
law, and recommendation for disposition” by order
entered on August 10, 2018. (ECF No. 17). On August 31, 2018,
the undersigned granted Johnson's second Application to
Proceed in forma pauperis. (ECF No. 18). On October
16, 2018, the Fifth Circuit declared Johnson's appeal
moot because the relief he sought was granted by the Court.
(ECF No. 19). The Petition is now ripe for review.
alleges that the TDCJ and the Board of Pardons and Paroles
(the “Board”) miscalculated the number of years
until he becomes eligible for parole. (ECF No. 1 at 6).
According to Johnson, he should become eligible for parole in
2024 after having served twenty-four years and seven months
in prison, which is one-fourth of the time of his
ninety-nine-year sentence. (Id.). Johnson argues
that the Board incorrectly determined that he will become
eligible for parole in 2048, which is approximately half of
the length of his prison sentence. (Id.).
Johnson alleges that in determining his parole eligibility,
the Board did “[n]ot us[e] the ‘ESSENTIAL
CHARACTERISTICS' test.” (Id.). Johnson
elaborates that his due process rights were violated when the
Board allegedly miscalculated his criminal history score and
failed to abide by its parole eligibility guidelines.
further argues that the Amarillo Parole Board
(“Amarillo”) violated his due process rights when
it misapplied “Rule 1.d.” (Id. at 7).
Although Johnson never explains the definition of “Rule
1.d” or how it was misapplied in the context of his
parole eligibility hearing, the undersigned located a
potentially connected rule upon further research. The
Board's website lists a webpage of “approval/denial
reasons” for parole/mandatory supervision eligibility.
See Approval/Denial Reasons, Parole/Mandatory
Supervision Information, Texas Board of Pardons and Paroles,
visited July 26, 2019). One of the reasons is labeled with
the heading, “1. CRIMINAL HISTORY, ” and below
that heading is “D [t]he record
indicates that the offender has repeatedly committed criminal
episodes that indicate a predisposition to commit criminal
acts upon release.” Id. To the extent that
this is the rule to which Johnson refers, he argues that his
opportunity for earlier parole due to good behavior was
foreclosed once Amarillo applied “Rule 1.d” at
his parole eligibility hearing. (ECF No. 1 at 7).
also argues that his due process rights were violated when he
did not receive timely notice of his parole eligibility
hearing and was unable to “speak with at least one of
the [p]arole [b]oard members voting on [his] case.”
makes contradictory allegations in the Petition. He alleges
that he did not file any petitions, applications, or motions
in any state or federal court challenging his parole
revocation. (Id. at 5). However, he checked the
“yes” box when asked had he “previously
filed a federal habeas petition attacking the same . . .
parole revocation . . . that [he] . . . attack[ed] in this
petition.” (Id. at 8). Johnson does not
mention the dates of each alleged petition or identify the
federal court in which he filed the petition(s).
(Id.). Upon further research, the undersigned
located a state habeas application that Johnson filed in the
Texas Court of Criminal Appeals (“TCCA”) that was
received on May 6, 2019. See TAMES Search,
257-27&coa=coscca (search Criminal Appeals Case No:
WR-50, 257-27). The undersigned could not access the actual
state habeas application to identify the issues that Johnson
raised in that petition. Id. However, the
undersigned accessed a notice from the TCCA in which the
court refused to act because the state habeas application did
not comply with requirements contained in a previous order
that cited Johnson for abuse of the writ. Id.
Lastly, Johnson seeks relief in the form of
“[i]mmediate [p]arole release.” (ECF No. 1 at 8).