Opinion
2:05-CV-0084.
May 6, 2005
REPORT AND RECOMMENDATION TO DENY PETITION FOR A WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY
On March 14, 2005, petitioner ANGELO ROSARIO filed with this Court a Petition for a Writ of Habeas Corpus by a Person in State Custody challenging the result of Disciplinary Case No. 20040150722 and the resultant loss of ten (10) days previously accrued good time credits. For the reasons set forth below, it is the opinion of the undersigned United States Magistrate Judge that petitioner's federal application for habeas corpus relief should be DENIED.
I. ELIGIBILITY FOR RELEASE TO MANDATORY SUPERVISION
In order to challenge a prison disciplinary adjudication by way of a federal petition for a writ of habeas corpus, a petitioner must, at a minimum, be eligible for mandatory supervised release and have received a punishment sanction which included forfeiture of previously accrued good time credits. See Malchi v. Thaler, 211 F.3d 953, 958 (5th Cir. 2000). In his habeas application, petitioner advises he is in respondent's custody pursuant to a November 30, 1987 conviction for the "second degree" felony offense of murder out of the 338th Judicial District Court of Harris County, Texas, and the resultant life sentence. In his habeas application, petitioner indicates he is eligible for mandatory supervised release.
Petition committed the offense of murder with a deadly weapon on January 4, 1987. Prior to September 1, 1987, all prisoners who committed any offense but did not receive a sentence of death were eligible for mandatory supervised release. Therefore, looking solely to petitioner's offense and the absence of a death sentence, petitioner appears to be eligible for mandatory supervision. However, due to the nature of his underlying sentence of life imprisonment, petitioner is factually ineligible for mandatory supervision. A term of life imprisonment does not have a maximum term or discharge date other than death. It is not possible to calculate the statutory formula because calendar time plus good time earned can never equal the unknown length of the life sentence. As stated in Brown v. Cockrell, 2002 WL 638584, *3, 3:01cv1425-R (N.D. Tex. April 17, 2002):
The statute in effect at that time stated:
A prisoner who is not on parole, except a person under sentence of death, shall be released to mandatory supervision by order of the Board when the calendar time served plus any accrued good conduct time equal the maximum term to which he is sentenced.
TEX. CODE CRIM. PRO. art. 42.18 § 8(c) (Vernon 1987).
[A] life sentence is not capable of calculation under the mandatory supervision statute. See Randall v. Cockrell, 2001 WL 1597829, No. 3:01cv 530-X (N.D. Tex. Dec. 11, 2001); Elliott v. Johnson, 2001 WL 123984, 3:01cv1425-R (N.D. Tex. Jan. 16, 2001). The Texas Court of Criminal Appeals recently reached the same conclusion in Ex parte Franks, 71 S.W.3d 327, 2001 WL 1636423 (Tex.Crim.App. Dec. 19, 2001) (No. 74,123). It explained: "Under a literal reading of this law, it is mathematically impossible to determine a mandatory supervision release date on a life sentence because the calendar time served plus any accrued good conduct time will never add up to life." Id. at 2. Therefore, Petitioner is not eligible for mandatory supervised release on his life sentence.
Because Petitioner is not entitled to early release or mandatory supervision, the loss of good-time credits in his case does not affect the fact or duration of his sentence and, therefore, does not deprive him of a liberty interest.
As petitioner will never be released to mandatory supervision due to his life sentence, he is factually not eligible for mandatory supervised release. As petitioner is factually not eligible for release to mandatory supervision, petitioner is not entitled to federal habeas corpus relief.
To the extent, if any, petitioner raises other claims not challenging the disciplinary proceeding, such claims are without merit. Federal habeas relief cannot be had "absent the allegation by a plaintiff 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) (internal quotations and citation omitted).
Based upon the foregoing, it is the opinion of the undersigned United States Magistrate Judge that petitioner's habeas corpus application challenging his prison disciplinary case should be DENIED.
II. RECOMMENDATION
It is the RECOMMENDATION of the United States Magistrate Judge to the United States District Judge that the Petition for a Writ of Habeas Corpus by a Person in State Custody filed by petitioner ANGELO ROSARIO be DENIED.
III. INSTRUCTIONS FOR SERVICE
The United States District Clerk is directed to send a file-marked copy of this Report and Recommendation to petitioner by the most efficient means available.
IT IS SO RECOMMENDED.