Opinion
3:01-CV-1553-D.
October 30, 2001.
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the Court, this case has been referred to the United States magistrate judge. The findings, conclusions and recommendation of the magistrate judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS: Type of Case: This is a petition for habeas corpus relief pursuant to 28 U.S.C. § 2254.
Parties: Petitioner is presently confined at a private prison in Mineral Wells, Texas. Respondent is the Director of the Texas Department of Criminal Justice — Institutional Division. The court has not issued process in this case. However, on September 12, 2001, the magistrate judge issued a questionnaire to Petitioner, who filed his answers on September 17, 2001.
Statement of Case: On March 2, 1994, Petitioner pled guilty to burglary of a building in the 86th Judicial District Court of Kaufman County, Texas. Punishment was assessed at ten years imprisonment in the TDCJ-ID. (Petition ¶¶ 1-4 and handwritten attachment to petition at 2). On December 16, 1997, Petitioner was released on mandatory supervision. (Handwritten attachment to petition at 2). He remained on mandatory supervision until his arrest on November 19, 1999. (Id. at 2). On February 7, 2000, the Board of Pardons and Parole (Board) revoked Petitioner's mandatory supervision and recommitted him to the TDCJ-ID. (Answer to Question 1 of the Magistrate Judge's Questionnaire). As part of the parole revocation, the TDCJ Pardons and Parole Division refused to give Petitioner credit for the time spent on mandatory supervision — i.e., street-time credits. (Handwritten attachment to petition at 2-3).
In five grounds for relief, Petitioner challenges the forfeiture of his street-time credits. (Petition ¶ 20 and handwritten attachment to petition at 4-9). He alleges that the refusal to give him credit for the time spent on supervised has extended the duration of his sentence in violation of the Cruel and Unusual Punishment Clause of the Eighth Amendment, the constitutional ban on bills of attainder, the separation of powers doctrine, and the Double Jeopardy Clause. (Handwritten attachment to petition, Grounds 1 and 3-5). Petitioner further alleges that the refusal to give him credit for the time spent on supervised release violates the terms of his plea agreement, thus rendering his guilty plea involuntary. (Handwritten attachment to petition, Ground 2).
Insofar as Petitioner alleges that the forfeiture of his street-time credits amounts to an additional penalty, the court liberally construes his petition to raise a claim under the Ex Post Facto Clause.
Petitioner has filed two state applications for writ of habeas corpus pursuant to art. 11.07, Texas Code of Criminal Procedure. He filed the first application in April of 2000. The Texas Court of Criminal Appeals dismissed this application without written order on June 7, 2000. (Answer to Question 2). On March 14, 2001, Petitioner filed the second art. 11.07 application, which the Texas Court of Criminal Appeals denied on July 25, 2001. (Petition ¶ 11).
Findings and Conclusions: Rule 4, of the Rules Governing Section 2254 Cases in the United States District Courts, provides that "[i]f it plainly appears from the face of the petition and any exhibit annexed to it that the petitioner is not entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the petitioner to be notified." Federal habeas relief cannot be had "absent the allegation by a [petitioner] that he or she has been deprived of some right secured to him or her by the United States Constitution or the laws of the United States ." Orellana v. Kyle, 65 F.3d 29, 31 (5th Cir. 1995), cert. denied, 516 U.S. 1059 (1996). The instant petition does not present any cognizable basis for habeas corpus relief.
Petitioner is not entitled to credit on his sentence for the "flat time" or "street time" spent on supervised release. See Morrison v. Johnson, 106 F.3d 127, 129 n. 1 (5th Cir. 1997). Presently, Texas law expressly denies credit for "street time" to a person whose parole or mandatory supervision is revoked following his release from prison. Section 508.283(b), Texas Government Code, which re-codified article 42.18 § 14(a), Texas Code of Criminal Procedure, provides as follows:
If a person's parole, mandatory supervision, or conditional pardon is revoked, the person may be required to serve the remaining portion of the sentence on which the person was released. The remaining portion is computed without credit for the time from the date of the person's release to the date of revocation.
TEX. GOV'T CODE ANN. § 508.283(b) (West 2001) (effective September 1, 1997) (emphasis added). At the time of Petitioner's offense, conviction, and sentence, a virtually identical statutory provision governed such matters. See TEX. CODE CRIM. PROC. art. 42.18 § 14(a) (West 1994). In addition, it is well established in the United States Court of Appeals for the Fifth Circuit "that time spent on parole does not operate to reduce the sentence of a parole violator returned to prison." See Starnes v. Connett, 464 F.2d 524, 524 (5th Cir.), cert. denied, 409 U.S. 987 (1972); see also Cox v. State of Texas, 433 F.2d 982, 982 (5th Cir. 1970) (same); Betts v. Beto, 424 F.2d 1299, 1300 (5th Cir. 1970) (same); Ex parte Canada, 754 S.W.2d 660, 661-62 (Tex.Crim.App. 1988) (holding that defendant was entitled to flat time credit for period between execution of pre-revocation warrant and date on which parole was formally revoked, though statute denied credit for any time on parole).
Effective September 1, 2001, the Texas Legislature amended § 508.283, Tex. Gov't Code. See 2001 Tex. Sess. Law Serv. Ch. 856 § 7 (H.B. 1649). That amendment, however, applies only to revocations that occur on or after the effective date of the amendment. See id. § 11.
Petitioner relies on the Double Jeopardy and Ex Post Facto Clauses of the Constitution. Neither claim has merit. The implementation of art. 42.18, Texas Code of Criminal Procedure, or § 508.283(b), Tex. Gov't Code, has not caused Petitioner to be prosecuted twice for the same offense or to endure "a punishment more severe than that assigned by law when the criminal act occurred. . . ." Hallmark v. Johnson, 118 F.3d 1073, 1077 (5th Cir. 1997) (citing Weaver v. Graham, 450 U.S. 24, 30, 101 S.Ct. 960, 964, 67 L.Ed.2d 17 (1981)), cert. denied, 522 U.S. 1003 (1997). As noted above, Texas law has provided, at least since 1988, that a person is not entitled to credit for "street time" or "flat time" following revocation of his parole or supervised release.
In addition, Petitioner argues that the Texas Board of Pardons and Paroles has unlawfully lengthened his sentence by requiring him to serve the sentence without credit for time spent on supervised release. His argument is fundamentally flawed. The Board did not sentence Petitioner to an additional term beyond that which was imposed by the trial judge; the Board merely stripped Petitioner of the time served on supervised release. Because the Board had such authority under state law, its actions did not violate Petitioner's constitutional rights.
Besides the above arguments, Petitioner contends that the forfeiture of his street-time credits amounts to cruel and unusual punishment, violates the constitutional ban on bills of attainder, and interferes with the separation of powers doctrine. Petitioner also contends that the forfeiture of his street-time credits violates the terms of his plea agreement, thus rendering his guilty plea involuntary These grounds are patently frivolous.
RECOMMENDATION:
For the foregoing reasons, it is recommended that the petition for a writ of habeas corpus be summarily dismissed. See Rule 4 of the Rules Governing Section 2254 Cases.
Although it is not clear from the face of the pleadings, the petition may be barred by the one-year statute of limitations applicable to federal habeas petitions. See 28 U.S.C. § 2244(d)(1). In the interest of judicial economy and in light of Petitioner's failure to present a cognizable claim for habeas relief, the magistrate judge has reached a disposition on the merits without determining the statute of limitations issue.
A copy of this recommendation will be transmitted to Petitioner.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this