Beard v. Johnson

• Court: Court of Appeals for the Fifth Circuit
• Decided: April 15, 1998
• Docket: 97-10010
• Status: Unpublished

Opinion

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parole was revoked.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 R. 47.5, the Court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR.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