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NOT RECOMMENDED FOR PUBLICATION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 July 12, 2002) (unpublished).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

1
Although 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.