Beard v. Johnson ( 1998 )

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
_____________________
No. 97-10010
_____________________
JOHN P. BEARD,
Petitioner-Appellant,
versus
GARY L. JOHNSON, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee.
_______________________________________________________
Appeal from the United States District Court for
the Northern District of Texas
(7:96-CV-84-X)
_______________________________________________________
April 9, 1998
Before REAVLEY, DeMOSS and PARKER, Circuit Judges.
PER CURIAM:*
John Beard was convicted of murder and sentenced to 99 years
in prison by a Texas court in 1955. He was paroled in 1965. In
1983 he stopped making annual reports to the Director of Parole
Supervision as he was required to do as a condition of his
parole. In 1992 a warrant was issued for his arrest for his
failure to make the annual reports. He waived hearing and his
parole was revoked. Now he brings this habeas corpus action,
*
Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
claiming that his constitutional right to due process was
violated by Texas in the nine year delay between 1983 to 1992.
The district court denied his claim and we affirm.
Beard cites the case of United States v. Tyler, 605 F.2d 851(5th Cir. 1979) as authority supporting his claim. There we held
that the federal probation officer could not, after a denied
petition for revocation, file a new petition for revocation based
on misdemeanor conduct known prior to the first hearing. We said
that the decision not to file those charges in the first
petition, coupled with lengthy delay, made the later action
fundamentally unfair. The Tyler case has no bearing on Beard’s
claim. Beard complains only of delay. This court has said that
a state’s inaction must be “so grossly negligent that it would be
unequivocally inconsistent with ‘fundamental principles of
liberty and justice’ to require a legal sentence to be served in
the aftermath of such .... inaction.” Piper v. Estelle, 485 F.2d
245, 246 (5th Cir. 1973). It has also been held that inaction by
the state for ten years neither waived jurisdiction nor offended
due process rights of the prisoner. Clifton v. Beto, 298 F.Supp.
134 (S.D.Tex. 1968), affirmed, 411 F.2d 1226 (5th Cir. 1969).
We do not see that Beard has suffered any prejudice and,
instead, continued to make no annual reports up to the date of
his arrest in 1992. See Cortinas v. U. S. Parole Com’n, 938 F.2d
43, 45 (5th Cir. 1991).
AFFIRMED
2