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Parker v. Davis

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

November 13, 2019

STEVE VIC PARKER, a/k/a Jerry Wilson, TDCJ #590690, Petitioner,
v.
LORIE DAVIS, Director, Texas Department of Criminal Justice - Correctional Institutions Division, Respondent.

          MEMORANDUM OPINION AND ORDER

          SIM LAKE, SENIOR UNITED STATES DISTRICT JUDGE

         While confined at a prison facility in Huntsville, Texas, the petitioner, Steve Vic Parker, also known as Jerry Wilson (TDCJ #590690), filed a Petition for a Writ of Habeas Corpus by a Person in State Custody ("Petition") (Docket Entry No. 1), challenging the administration of his sentence. Pending before the court is Respondent's Motion for Summary Judgment with Brief in Support ("Respondent's MSJ") (Docket Entry No. 36). The petitioner has filed a reply ("Petitioner's Reply") (Docket Entry No. 37). After considering all of the pleadings, the state court records, and the applicable law, the court will grant the Respondent's MSJ and will dismiss this action for the reasons explained below.

         I. Background and Procedural History

         When the petitioner filed this action he was incarcerated by the Texas Department of Criminal Justice - Correctional Institutions Division ("TDCJ") at the Holliday Unit in Huntsville as the result of more than one state court criminal conviction. Those convictions and the sentences that the petitioner received are summarized briefly below.

         On April 25, 1991, the petitioner was convicted and sentenced to 20 years' imprisonment for unauthorized use of a motor vehicle in Bell County Cause No. 39, 082.[1] The petitioner was released from prison on the form of parole known as mandatory supervision in 1992.[2] The petitioner's supervised release was revoked and he returned to prison after he was convicted of two counts of theft in McLennan County Cause number 2010-447-C1 on October 13, 2010.[3] The petitioner was sentenced to serve concurrent terms of seven years' imprisonment on each count of theft, running consecutively to the 20-year sentence that he received previously in Bell County cause number 39, 082.[4] As a result, the seven-year sentences that he received in 2010 were "stacked" on top of the twenty-year sentence he received previously in 1991.[5]

         On April 11, 2013, the petitioner was released on mandatory supervision in error after his sentences were calculated incorrectly by prison officials.[6] When TDCJ realized the mistake an "erroneous release warrant" issued on June 27, 2013, and was executed the following day.[7] The petitioner returned to TDCJ custody after a hearing was conducted regarding his erroneous release.[8]

         On April 23, 2015, the petitioner filed the pending Petition under 28 U.S.C. § 2254, seeking federal habeas corpus relief from the calculation of his sentence.[9] The court granted the respondent's motion for summary judgment and dismissed the petition on August 7, 2015, observing that the petitioner had previously challenged the calculation of his sentence in a previous federal habeas proceeding that he filed in 2013, concluding that his pending 2015 Petition was a "second or successive" application for habeas relief that required prior authorization from the Fifth Circuit under 28 U.S.C. § 2244(b).[10] The Fifth Circuit reversed and vacated that decision, remanding the case for further consideration. See Parker v. Davis, 914 F.3d 996 (5th Cir. 2019). Acknowledging that the petitioner's pleadings were "convoluted," the Fifth Circuit identified the following two claims that did not fit within the prohibition of second-or-successive writ applications: (1) his two seven-year sentences were improperly stacked and "should have started as soon as he returned to prison in 2010 and (for reasons that are unclear) had ceased to operate or were otherwise void under various clauses of the U.S. Constitution;" and (2) "his rearrest and reprocessing in 2013, as well as the circumstances surrounding them, violated his right to due process under the Fourteenth Amendment." Id. at 998.

         State court records reflect that the petitioner raised both of the above-referenced claims in an Application for a Writ of Habeas Corpus Seeking Relief from [a] Final Felony Conviction Under Code of Criminal Procedure Article 11.07 ("State Habeas Application") that he filed in 2014.[11] After considering an affidavit from Charley Valdez, who is a Program Supervisor III for the TDCJ Classification and Records Department, the state habeas corpus court found that the petitioner's sentence was correctly calculated and recommended denying relief.[12] The Texas Court of Criminal Appeals agreed and denied relief without a written order on the findings made by the trial court on February 11, 2015.[13]

         The respondent now moves for summary judgment, arguing that the petitioner's challenge to the calculation of his consecutive or stacked sentences in Claim 1 concerns an issue of state law that is not actionable in a federal habeas corpus proceeding.[14] The respondent argues further that the petitioner's challenge to the proceedings held following his arrest on the erroneous release warrant in Claim 2, which asserts that he was entitled to immediate release on mandatory supervision, is moot because Parker has been released from custody and has obtained the relief that he was seeking.[15]

         II. Standard of Review

         To the extent that the petitioner's claims were raised and rejected in state court, his Petition is governed by the Anti-Terrorism and Effective Death Penalty Act (the "AEDPA"), codified as amended at 28 U.S.C. § 2254(d). Under the AEDPA a federal habeas corpus court may not grant relief unless the state court's adjudication "resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States[.]" 28 U.S.C. § 2254(d)(1).

         "A state court's decision is deemed contrary to clearly established federal law if it reaches a legal conclusion in direct conflict with a prior decision of the Supreme Court or if it reaches a different conclusion than the Supreme Court on materially indistinguishable facts." Matamoros v. Stephens, 783 F.3d 212, 215 (5th Cir. 2015) (citations omitted); see also Williams v. Taylor, 120 S.Ct. 1495, 1519-20 (2000). To constitute an "unreasonable application of" clearly established federal law, a state court's holding "must be objectively unreasonable, not merely wrong; even clear error will not suffice." Woods v. Donald, 135 S.Ct. 1372, 1376 (2015) (quoting White v. Woodall. 134 S.Ct. 1697, 1702 (2014)). "To satisfy this high bar, a habeas petitioner is required to 'show that the state court's ruling on the claim being presented in federal court was so lacking in justification that there was an error well understood and comprehended in existing law beyond any possibility for fairminded disagreement.'" Id. (quoting Harrington v. Richter, 131 S.Ct. 770, 786-87 (2011)).

         Ill. Discussion

         A. Claim 1: Petitioner's Claim That His Sentences Were Improperly-Stacked

         Liberally construed, the petitioner contends in Claim 1 that the concurrent seven-year prison sentences that he received for his McClennan County theft conviction in 2010 were improperly stacked with the 2 0-year prison sentence that he had previously received in 1991, when he returned to prison after the revocation of his parole.[16] He argued in state court that his seven-year sentences could not be stacked because he was on mandatory supervision from his 1991 conviction when he committed the thefts that resulted in a new conviction in 2010 and, therefore, that the seven-year sentences that he received from McClennan County should have commenced immediately when they were entered against him in 2010, rather than calculated to run consecutively.[17]

         The state habeas corpus court rejected this claim and found that Parker's sentences were properly calculated following his conviction for theft in 2010, which also resulted in the revocation of his supervised release on parole.[18] In reaching that conclusion the state court relied on the affidavit from Charley Valdez, who explained that the sentences Parker received for theft in 2010 were required to be "stacked" or calculated as consecutive, and not concurrent with the previous 2 0-year sentence that he received in 1991, based on an interpretation of state law that determines when a sentence that is second in time commences to run:

Although Applicant's supervision was revoked after he received the new stacked sentences, because he was released to mandatory supervision and not on parole on [June 6, 2008], his sentences are being calculated as consecutive and not concurrent. TDCJ has interpreted Ex parte Wrigley as being applicable only to offenders released to parole and not to mandatory supervision. Ex parte Wrigley, 178 S.W.3d 828, 831 (Tex. Crim. App. 2005) (a stacked sentence does not begin to run on the date the defendant makes parole on the original offense if his parole is revoked before the trial court sentences the defendant for the stacked offense). When an offender has consecutive sentences, the second sentence will begin when the first sentence ceases to operate. Mandatory supervision is not an event that causes an offender's first sentence to cease to operate. Ex parte Cowan, 171 S.W.3d 890 (Tex. Crim. App. 2005), Ex parte Kuester, 21 S.W.3d 264 (Tex. [Crim.] App. 2000).[19]

         The state court found that Valdez's affidavit was "true, correct, and worthy of belief."[20]

         To the extent that the state habeas corpus court found that Valdez's affidavit was credible and that the facts asserted were true, findings such as these are entitled to substantial deference on federal habeas review. See Coleman v. Quarterman, 456 F.3d 537, 541 (5th Cir. 2006) (citing Guidry v. Dretke, 397 F.3d 306, 326 (5th Cir. 2005)). The state court's factual findings and credibility determinations are presumed correct for purposes of federal habeas corpus review unless they are rebutted with "clear and convincing evidence." 28 U.S.C. § 2254(e)(1); Valdez v. Cockrell, 274 F.3d 941, 947 (5th Cir. 2001). The petitioner does not present evidence to challenge any of the fact findings or credibility determinations made by the state habeas corpus court. Likewise, he has not shown ...


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