Opinion
CIVIL ACTION NO. 1:02-CV-058-C
May 9, 2003
ORDER
On this day the Court considered Reginald B. Hunter's ("Petition") Petition for Writ of Habeas Corpus by a Person in State Custody filed pursuant to 28 U.S.C. § 2254. Respondent Cockrell has filed an Answer with Brief in Support and attached copies of Petitioner's relevant state records. Petitioner has not filed a response or objections to the answer.
Respondent has lawful custody of Petitioner pursuant to two judgments and sentences from the 350th Judicial District Court of Taylor County, Texas, in Cause Nos. 1231-D and 1232-D each styled The State of Texas v. Reginal Bernard Hunter. Petitioner pleaded guilty to the felony offenses of delivery of cocaine and on April 27, 1989, he was sentenced to fifteen (15) years' imprisonment in the Texas Department of Corrections in each cause, with the sentences to run concurrently. Petitioner was subsequently released to mandatory supervision on March 7, 2000, but his mandatory supervision was revoked on November 10, 2000.
The Texas Department of Corrections is now known as the Texas Department of Criminal Justice, Institutional Division ("TDCJ-ID").
Petitioner complains in the instant petition that he is being denied credit for good conduct time and work time that he earned prior to the revocation of his mandatory supervision; he is being denied flat time for the time he spent released to mandatory supervision; the denial of credit for time spent on mandatory supervision violates the prohibitions against double jeopardy; and he was forced to sign the release to mandatory supervision under duress. Respondent argues that Petitioner has failed to exhaust his state remedies; his claims are time-barred under 28 U.S.C. § 2244(d); and alternatively, his claims are without merit.
EXHAUSTION
Petitioner filed the instant petition on March 26, 2002; therefore, his petition is subject to review under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Lindh v. Murphy, 521 U.S. 320 (1997) (holding that all federal writs filed on or after April 24, 1996, are subject to AEDPA). Under 28 U.S.C. § 2254(b)(1), as amended by the AEDPA, a state prisoner may not obtain federal habeas relief until he has exhausted the remedies available in the state courts; or he demonstrates the absence of state court remedies or circumstances rendering the state court remedies ineffective. See Whitehead v. Johnson, 157 F.3d 384, 387 (5th Cir. 1998) ("A fundamental prerequisite to federal habeas relief under § 2254 is the exhaustion of all claims in state court prior to requesting federal collateral relief").
"The exhaustion requirement is satisfied when the substance of the federal habeas claim has been fairly presented to the highest state court" Id. The federal habeas petitioner "need not spell out each syllable of the claim before the state court to satisfy the exhaustion requirement," but he must demonstrate that his federal claim is the "substantial equivalent" of the state claim. Id. The highest state court in Texas for criminal matters is the Texas Court of Criminal Appeals. Richardson v. Procunier, 762 F.2d 429, 431-32 (5th Cir. 1985). A habeas petitioner has not exhausted his state remedies if he has the right to raise the question(s) by any available procedure under state law. Lowe v. Scott, 48 F.3d 873, 875 (5th Cir. 1995).
Nevertheless, Section 501,0081(a) of the Texas Government Code which became effective on September 1, 1999, provides that TDCJ "shall develop a system that allows resolution of a complaint by an inmate who alleges that time credited on the inmate's sentence is in error and does not accurately reflect the amount of time-served credit to which the inmate is entitled." "All persons seeking time credit relief an application filed pursuant to Art. 11.07, § 3, filed in the district clerk's office on or after January 1, 2000, must show that a written decision has been obtained [from the office of time credit resolution for the Texas Department of Criminal Justice] or that he is within 180 days of release according to current department records, or must allege that he sought resolution of his credit complaint more than 180 days before the application was filed." Ex parte Stokes, 15 S.W.3d 532, 533 (Tex.Crim.App. 2000). The Texas Department of Criminal Justice issued an Administrative Directive on June 9, 2000, that told inmates incarcerated in the TDCJ-ID how to challenge their time credits through the administrative procedures. Petitioner has not demonstrated that he has presented his claim for time credits to TDCJ office of time credit resolution or that he has filed a state application for writ of habeas corpus which has been decided by the Texas Court of Criminal Appeals.
Nevertheless, a § 2254 petition for writ of habeas corpus may "be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(2).
STATUTE OF LIMITATIONS
"In defining the one-year statute of limitations in § 2244(4), Congress explicitly laid out three circumstances under which the statute of limitations would begin to run after the date on which the prisoner's judgment became final." Felder v. Johnson, 204 F.3d 168, 172 (5th Cir. 2000). See 28 U.S.C. § 2244(d)(1)(B), (C), and (D), supra. Section 2244(d)(1)(D) provides that the one-year limitation period for filing federal habeas petitions under 28 U.S.C. § 2254 begins to run on "date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence."
Respondent argues that Petitioner could have discovered the factual basis of his claims on the date his release to mandatory supervision was revoked, that is, on November 10, 2000, and that he is not entitled to tolling during the pendency of a properly filed habeas application under 28 U.S.C. § 2244(2) because he did not have an application pending. Although under this argument, Petitioner's federal petition would have been due on or before November 10, 2001, he did not file his petition until March 26, 2002, over four months after the limitation period had expired.
Furthermore, Petitioner has made no argument for equitable tolling. See Fisher v. Johnson, 174 F.3d 710.713 (5th Cir. 1999) (noting that a petitioner must demonstrate "sufficiently rare and exceptional circumstances" to justify equitable tolling of the limitation period).
Petitioner does allege in his petition that he filed several state applications in the trial court but they were never forwarded to the Texas Court of Criminal Appeals, Thus, this Court is not able to determine whether Petitioner did in fact file applications in the state trial court which should be considered for tolling purposes. The Court is also unable to determine when Petitioner delivered his federal petition to prison officials for mailing because he has not dated his application. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (holding that an inmate's federal habeas petition should be deemed to be filed as of the date he delivered it to prison officials for mailing to the court). Because it is not clear from the record whether the claims raised were timely or exhausted, this Court shall address the merits of the petition.
DISCUSSION
A federal habeas petitioner must demonstrate that "he has been deprived of some right secured to him . . . by the United States Constitution or the laws of the United States" before he can obtain federal habeas relief, Allison v. Kyle, 66 F.3d 71, 73 (5th Cir. 1995).
A prisoner has no constitutional or inherent right to receive credit on his sentence for good behavior while incarcerated. See Wolff v. McDonnell, 418 U.S. 539, 557 (1974) ("[T]he Constitution itself does not guarantee good-time credit for satisfactory behavior while in prison."); Hamill v. Wright, 870 F.2d 1032, 1036 (5th Cir. 1989) (finding that there is no federal constitutional right to the award of good conduct time). Texas law provides that good time or work time credits only affect an inmate's eligibility for release on parole or mandatory supervision and do not affect the length of his sentence. Tex. Gov't Code Ann. § 498,4003 (Vernon Supp. 1998); Ex parte Montgomery, 894 S.W.2d 32.4 (Tex.Crim.App. 1995). See Hallmark v. Johnson, 118 F.3d 1073, 1079 (5th Cir. 1997) (finding that since 1977 Texas law has provided that good conduct time is "a privilege and not a right"); Ex parte Morris, 626 S.W.2d 754, 757 (Tex.Crim.App. 1982) (holding that whether designated "work time" or "good time" credits, such credits do not become vested under Texas law).
Moreover, Texas lawprovides that good conduct time credits are automatically forfeited upon the revocation of parole or mandatory supervised release and such credits, at the discretion of prison officials, might or might not be reinstated following a revocation. Tex. Gov't Code Ann. § 497.004(b) (Vernon 1995). See Hallmark v. Johnson, 118 F.3d at 1079-80 (holding that when the authority for the restoration of good-time credits is in the discretion of prison authorities, there is no protected liberty interest in good time). Petitioner has not demonstrated that the failure by TDCJ-ID officials to give him credit for previously earned good conduct time or work time violates the Constitution or laws of the United States.
Furthermore, it is well established that a federal habeas petitioner's claim that he was unconstitutionally denied credit for "street time" spent on parole or mandatory supervision is without merit. Morrison v. Johnson, 106 F.3d 127, 129 n. 1 (5th Cir. 1997); Starnes v. Cornett, 464 F.2d 524 (5th Cir. 1972); Cox v. Texas, 433 R2d 982 (5th Cir. 1970); and Campos v. Johnson, 958 F. Supp. 1180, 1182 (W.D. Tex. 1997). See Tex. Code Crim. P. ann. art. 42.18 § 14(a) (Vernon Supp. 1990) (currently Tex. Gov't Code Ann. § 508.156(e) (2000)) ("When a person's parole, mandatory supervision, or conditional pardon is revoked, that person may be required to serve the portion remaining of the sentence on which he was released, such portion remaining to be calculated without credit for time from the date of his release to the date of revocation."). Petitioner was specifically advised in the Certificate of Mandatory Supervision that he signed on March 7, 2000, that any violation of the rules or conditions of mandatory supervision could result in the revocation of his mandatory supervision and "that all time served on mandatory supervision (would] be forfeited" Hence, the Court finds that Petitioner's complaint about the denial of credit for street time does not raise a constitutional claim.
As for Petitioner's claim that he is being subjected to double jeopardy because he is denied credit for previously earned good time and street time, the double jeopardy protections do not apply to parole or mandatory supervision proceedings. Stringer v. Williams, 161 F.3d 259, 262 (5th Cir. 1998)' Morrison v. Johnson, 106 F.3d at 129 n. 1; and United States v Whitney, 649 F.2d 296 (5th Cir. 1981).
As for Petitioner's complaint that he was forced under duress to sign the Certificate of Mandatory Supervision, he offers no support for the claim other than his conclusion allegations. See Smallwood v. Johnson, 73 F.3d 1343, 1351 (5th Cir. 1996) (holding that a federal habeas court will not consider conclusory allegations on a critical issue). See also Orellana v. Kyle, 65 F.3d 29, 32 (5th Cir. 1995) (holding that because Texas law does not create a constitutionally protected liberty interest in parole, an inmate cannot complain about the constitutionality of procedural devices attendant to parole decisions).
Finally, to the extent that Petitioner's complaint requests this Court to review a simple interpretation of state law by state courts, he has failed to state a claim cognizable on federal habeas review. Nobles v. Johnson, 127 F.3d 409, 418 n. 21 (5th Cir. 1997). See Travis v. Lockhart, 925 F.2d 1095, 1097 (8th Cir. 1991) (holding that the interpretation of state statutes regarding credit for time served "is a matter of state concern and not a proper function of a federal court under its habeas corpus jurisdiction").
For the reasons stated above, the Court finds that Petitioner Hunter's Petition for Writ of Habeas Corpus should be DENIED and dismissed with prejudice.
All relief not expressly granted is denied and all pending motions are denied.
SO ORDERED.