Cotten v. Davis

NOT RECOMMENDED FOR PUBLICATION
File Name: 07a0099n.06
Filed: February 8, 2007
No. 05-5619
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
RICKEY STEPHAN COTTEN,
Petitioner-Appellant,
v. On Appeal from the United
States District Court for the
JAMES M. DAVIS, TENNESSEE BOARD OF Middle District of Tennessee
PAROLE,
Respondents-Appellees.
/
Before: GUY, SUHRHEINRICH, and GRIFFIN, Circuit Judges.
PER CURIAM. Tennessee prisoner Rickey Stephan Cotten appeals from the
dismissal of the petition for habeas corpus he filed pursuant to 28 U.S.C. § 2241. The four
issues before us on appeal are: (1) whether the Tennessee Board of Parole violated Cotten’s
due process rights by failing to provide him with a timely parole revocation hearing; (2)
whether the Board violated his due process rights when it held the warrant in abeyance until
he completed his Florida sentence; (3) whether the Board violated Cotten’s due process rights
when it reissued the parole violator warrant with additional charges; and (4) whether the
Board lacked jurisdiction to revoke Cotten’s parole because his sentence had already expired.
After review of the record and the arguments presented on appeal, we affirm.
I.
No. 05-5619 2
Cotten was convicted of burglary in Tennessee and sentenced to a term of not less
than 23 years. He was paroled from state custody in October 1997, and remained under the
supervision of the Tennessee Department of Corrections. On January 14, 1998, Cotten was
arrested for “grand theft auto” in Orlando, Florida. Then, on January 20, 1998, the
Tennessee Board of Parole issued a warrant based on information that Cotten had violated
his parole by failing to maintain employment, failing to notify his parole officer of a change
of residence, failing to enter an alcohol program, failing to report as instructed, and moving
without permission. On March 23, 1998, a Florida court issued an order to hold and deliver
Cotten on the parole violations. As the Tennessee Court of Appeals noted: “Because Mr.
Cotten was then in custody in a Florida jail pending disposition of the auto theft charge, he
was not then delivered to Tennessee authorities.” Cotten v. Tenn. Bd. of Paroles, No.
M2001-00875, 2002 WL 1484446, * 1 (Tenn. Ct. App. July 12, 2002) (unpublished).
Cotten entered a nolo plea to the Florida charge in May 1998, and was sentenced to
seven and one-half years (with 135 days of jail credit) in July 1998. The Florida judgment
specified (presumably as part of a plea bargain) that the sentence was to run concurrently
with any sentence Cotten received as a result of the pending parole violations in Tennessee.
Cotten sought a transfer to a Tennessee prison in 1999, but that request was denied due to
overcrowding in the Tennessee jails and a freeze on the transfer of out-of-state prisoners.
He then filed a request for leave to waive revocation hearing and be sentenced in absentia
with the Tennessee Parole Board. Cotten never received a response to this request.
On March 5, 2001, Cotten filed a petition for writ of mandamus in the Davidson
No. 05-5619 3
County, Tennessee, Circuit Court asking that the Tennessee Parole Board be ordered to grant
his request for waiver of revocation hearing and sentence him in absentia. The petition was
denied by the trial court, the denial was affirmed on July 12, 2002, and leave to appeal to the
Tennessee Supreme Court was denied December 2, 2002. A second parole violation warrant
adding two new charges was issued by the Tennessee Parole Board on May 1, 2004. Cotten
completed his Florida sentence on May 28, 2004, and was returned to the custody of the
Tennessee Department of Corrections on June 2, 2004. A hearing was held on July 8, 2004,
at the conclusion of which Cotten’s parole was revoked. The revocation was affirmed on
appeal.
Cotten filed his petition for writ of habeas corpus in federal court on December 20,
2004. Respondent answered and filed a motion to dismiss, which was granted by the district
court on March 22, 2005. Petitioner appealed, and this court granted a certificate of
appealability on the same four issues that petitioner raised in the district court.1
II.
We review the district court’s decision denying the petition for writ of habeas corpus
de novo. Lucas v. O’Dea, 179 F.3d 412, 416 (6th Cir. 1999); Wolfe v. Brigano, 232 F.3d
1Although respondent argued that the petition was not filed timely, the district court observed that
a petitioner has one year from the latest of four dates to file his habeas petition under 28 U.S.C. §
2244(d)(1). Measured from the date on which the judgment became final upon the expiration of the time
for seeking review, the one-year period would expire March 3, 2004, and the petition would not be timely.
See § 2244(d)(1)(A); Abela v. Martin, 348 F.3d 164 (6th Cir. 2003) (en banc). Instead, the district court
found that the applicable date was the date on which the factual predicate of the claim or claims could have
been discovered through the exercise of due diligence because at least two of petitioner’s claims arose in
early 2004. § 2244(d)(1)(D). Petitioner also argued that equitable tolling should apply. Keenan v. Bagley,
400 F.3d 417, 421 (6th Cir. 2005). It is not necessary to resolve these questions because we affirm the
district court’s further finding that the claims are without merit.
No. 05-5619 4
499, 501 (6th Cir. 2000). Under the AEDPA, the writ may not be granted with respect to any
claim adjudicated on the merits in state court unless the adjudication resulted in a decision
(1) that was contrary to, or involved an unreasonable application of, clearly established
federal law as determined by the Supreme Court; or (2) was based on an unreasonable
determination of the facts in light of the evidence presented in state court. 28 U.S.C. §
2254(d)(1) & (2). The state court’s factual findings are presumed correct unless clear and
convincing evidence to the contrary exists. 28 U.S.C. § 2254(e)(1). Claims not assessed on
the merits by the state court are reviewed de novo. McAdoo v. Elo, 365 F.3d 487, 498 (6th
Cir. 2004).2
The Supreme Court has held that “the conditional freedom of a parolee generated by
statute is a liberty interest protected by the Due Process Clause of the Fourteenth Amendment
which may not be terminated absent appropriate due process safeguards.” Moody v. Daggett,
429 U.S. 78, 85 (1976) (citing Morrissey v. Brewer, 408 U.S. 471, 488 (1972)). The issue
in Moody was not whether a hearing would ever be required, but whether a hearing was
required before the parolee was taken into custody as a parole violator. Id. at 86. The
petitioner in Moody shot and killed two people while on parole from an unrelated rape
conviction. He pleaded guilty to manslaughter and second-degree murder, and was sentenced
to two concurrent ten-year sentences. After he was incarcerated, a parole violation warrant
2
While respondent concedes that exhaustion was not raised as a defense with respect to claims three
and four, it was also not expressly waived. 28 U.S.C. § 2254(b)(1) & (3); Clinkscale v. Carter, 375 F.3d
430, 436 (6th Cir. 2004), cert denied, 543 U.S. 1177 (2005). A “mixed” petition asserting exhausted and
unexhausted claims may be dismissed on the merits if the entire petition is without merit. 28 U.S.C. §
2254(b)(2). Because we affirm the dismissal on the merits, we do not reach petitioner’s claim that he falls
within an exception to the exhaustion requirement.
No. 05-5619 5
was issued but not executed. Moody requested that the parole board execute the warrant
immediately so that any sentence imposed for the parole violation would run concurrently
with the sentences he was already serving. The request was denied, and Moody sought
habeas relief on the grounds that he had been denied a timely hearing in violation of the due
process protections recognized in Morrissey. In rejecting Moody’s claims, the Supreme
Court explained that
in holding that “[t]he revocation hearing must be tendered within a reasonable
time after the parolee is taken into custody,” Morrissey, 408 U.S., at 488, we
established execution of the warrant and custody under that warrant as the
operative event triggering any loss of liberty attendant upon parole revocation.
This is a functional designation, for the loss of liberty as a parole violator does
not occur until the parolee is taken into custody under the warrant.
Moody, 429 U.S. at 87.
We find that rejection of Cotten’s first two claims by the Tennessee Court of Appeals
was neither contrary to nor an unreasonable application of Moody. The critical factual
determinations, which are entitled to a presumption of correctness, were the state court’s
findings (1) that Cotten was taken into custody on the Florida charge six days before the first
parole violator warrant was even issued; and (2) that, notwithstanding service of the parole
violator warrant in March 1998, Cotten was not taken into custody under the warrant as a
parole violator at that time. Consequently, the state court properly concluded both that
Cotten’s due process right to a timely revocation hearing was not triggered in March 1998,
and that he had no due process right to force a revocation decision so that the remainder of
his Tennessee sentence could be served concurrently. The district court did not err in
rejecting claims one and two on the merits.
No. 05-5619 6
Third, Cotten asserts that he was denied due process by the issuance of the second
parole violation warrant that included two additional charges (based on the Florida
conviction). To the extent that this claim rests on the assertion that due process was triggered
by the service of the first warrant, it fails for the same reasons as the first two claims. The
focus of the argument on appeal is the contention that the Board violated its procedures that
require a follow up parole violation report be prepared every 180 days by failing to issue a
follow up report within 180 days after being made aware of the Florida conviction.
Petitioner does not explain how the alleged failure to follow the administrative rules violated
any due process right to a timely revocation hearing after he was taken into custody on June
2, 2004. In fact, there is no constitutionally protected liberty interest in having a state parole
board follow its own statutes and regulations. Olim v. Wakinekona, 461 U.S. 238, 239
(1983); Sweeton v. Brown, 27 F.3d 1162, 1164-65 (1994).
Petitioner’s fourth claim—that the Board lacked jurisdiction to revoke his parole on
July 8, 2004, because his sentence had expired—presumes that the Florida and Tennessee
sentences were running concurrently while he was incarcerated in Florida. Not only did the
Board inform petitioner otherwise in 1998, but the state court determined that the warrant
was not “executed” in March 1998 as petitioner was not taken into custody under the
warrant. Finally, as discussed earlier, Cotten did not have a constitutionally protected right
to have his Tennessee sentence run while he was serving his sentence on the Florida
conviction. Moody, 429 U.S. at 87-88.
The district court’s dismissal of Cotten’s habeas petition is AFFIRMED.