United States District Court, S.D. Texas, McAllen Division
JOHN A. CARROLL, Petitioner,
LORIE DAVIS, Respondent.
REPORT AND RECOMMENDATION
E. ORMSBY UNITED STATES MAGISTRATE JUDGE
John A. Carroll, a state prisoner proceeding pro se,
initiated this action by filing a petition for writ of habeas
corpus pursuant to 28 U.S.C. § 2254. (Docket No. 1.) In
2016, Petitioner pleaded guilty to felony possession with
intent to deliver a controlled substance causing death and
was sentenced to four years confinement in the Institutional
Division of the Texas Department of Criminal Justice (TDCJ).
In seeking federal habeas relief, Petitioner does not
challenge his conviction or sentence, but rather his claims
address the decision by the Texas Board of Pardons and
Paroles (Board) in 2017 to deny his release to discretionary
mandatory supervision (DMS). Petitioner challenges the
Board's decision on four grounds, including claims that
the Board violated his rights to Equal Protection and Due
Process based on the Board's "arbitrary"
before the District Court is Respondent's Motion for
Summary Judgment. (Docket No. 6.) Respondent argues that the
petition should be dismissed because Petitioner's claims
are all unexhausted. (Id. at 5-7.) Petitioner did
not respond to Respondent's motion for summary judgment.
carefully considering the pleadings in this case, the state
court record, and the applicable law, the undersigned
concludes that the § 2254 petition should be denied.
Petitioner's claims are unexhausted, as he raises them
for the first time in his federal habeas petition.
Accordingly, for the reasons discussed further below, it is
recommended that Respondent's motion for summary judgment
be granted and that this action be dismissed without
2015, Petitioner was charged with felony possession with
intent to deliver a controlled substance causing death in the
195th District Court of Dallas, County, Texas. As noted,
Petitioner pleaded guilty to the charge and was sentenced to
our years confinement in the Institutional Division of the
Texas Department of Criminal Justice (TDCJ). Petitioner began
serving his sentence on February 19, 2016, and the Texas
Board of Pardons and Paroles (Board) has denied his release
on three separate occasions. (Docket No. 6-4, at 3.)
October 26, 2017, the Board informed Petitioner that it had
reviewed his case for possible release on Discretionary
Mandatory Supervision (DMS), but it denied his release.
(Docket No. 1-2; Docket No. 6-4, at 3.) The Board listed six
reasons for denying Petitioner release on DMS, which included
the following (among other things): 1) Petitioner's
"record indicates that [his] release would endanger the
public"; 2) Petitioner's record indicates a
"predisposition to commit criminal acts upon
release"; and 3) Petitioner's "record indicates
excessive substance use involvement." (Docket No. 1-2.)
3, 2018, Petitioner filed the instant federal petition for
writ of habeas corpus pursuant to 28 U.S.C. § 2254,
challenging the Board's decisions to deny him release to
DMS. (Docket No. 1.) Petitioner asserts four claims in his
federal petition, specifically: 1) the Board's denial is
"in violation of equal protection and due process"
because it was "arbitrary and capricious"; 2) the
denial also violates his due process rights because it
amounted to a revocation of his accrued good time and work
time credits; 3) the Board's decision is arbitrary
because there is no evidence to support that his release
would endanger the public; and 4) the Board's decision
amounts to an "abuse of unfettered discretion."
(Id. at ¶ 20 (Grounds One through Four).)
has moved for summary judgment, asserting that all of
Petitioner's claims should be dismissed because he failed
to exhaust his state court remedies. (Docket No. 6.)
argues that all four of Petitioner's claims asserted in
his § 2254 federal petition should be dismissed because
he has failed to exhaust his state remedies as required by 28
U.S.C. §§ 2254(b), (c). (Docket No. 8, at 6-10.)
Respondent is correct.
2254(b)(1)(A) provides that an application for writ of habeas
corpus "shall not be granted unless it appears that...
the applicant has exhausted the remedies available in the
courts of the State." Section 2254(c) further explains:
An applicant shall not be deemed to have exhausted the
remedies available in the courts of the State, within the
meaning of this section, if he has the right under the law of
the State to raise, by ...