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Carroll v. Davis

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

September 1, 2019

JOHN A. CARROLL, Petitioner,
v.
LORIE DAVIS, Respondent.

          REPORT AND RECOMMENDATION

          PETER E. ORMSBY UNITED STATES MAGISTRATE JUDGE

         Petitioner 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" decision.

         Pending 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.

         After 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 prejudice.

         I. BACKGROUND

         In 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.)

         On 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.)

         On May 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).)

         Respondent 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.)

         II. ANALYSIS

         Respondent 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.

         Section 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 ...

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