Opinion
No. 3:02-CV-1331-L
September 27, 2002
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636 (b), and an order the Court in implementation thereof, 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 brought by a state inmate pursuant to 28 U.S.C. § 2254.
Parties: Petitioner is presently confined at the Holliday Transfer Facility of the Texas Department of Criminal Justice — Institutional Division (TDCJ-ID) in Huntsville, Texas. Respondent is the Director of the TDCJ-ID. The court has not issued process in this case.
Statement of Case: On April 18, 1995, Petitioner was convicted of delivery of a controlled substance in the 263rd Criminal District Court, Dallas County, Texas, Cause No. F94-53204. Punishment was assessed at fifteen years imprisonment in TDCJ-ID. (Petition at 2). On December 1, 1998, he was released on parole. Petitioner remained on parole until September 25, 2001, when his parole was revoked and he was returned to TDCJ custody. (Memorandum in Support of Petition at 2).
In this habeas corpus action, Petitioner alleges (1) that TDCJ has unlawfully forfeited his street-time credits — i.e., flat-time earned while on parole; (2) that TDCJ has unlawfully changed his sentence to exceed the sentence imposed by the convicting court; (3) that TDCJ has unlawfully stopped the running of his sentence; (4) that TDCJ is punishing him twice for the same offense in violation of the Double Jeopardy Clause; (5) that he was denied the right to counsel at the time of signing the parole certificate; and (6) that TDCJ is violating the separation of powers doctrine by extending his sentence. (Petition ¶ 20 and Memorandum in Support).
Petitioner presents grounds three through six in his Memorandum in Support, attached to the Petition.
Petitioner filed a state application for writ of habeas corpus pursuant to art. 11.07, Texas Code of Criminal Procedure. On March 27, 2002, the Texas Court of Criminal Appeals denied Petitioner's state application without written order. (Petition, Exh. C).
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). The instant petition does not present any cognizable basis for habeas corpus relief.
In his first and second grounds, Petitioner contends TDCJ is extending his in-custody calendar time beyond the court-ordered sentence by denying him credit towards completion of his sentence for the time he spent on parole, i.e., street-time credit. (Petition at 7). In support of his contention, he alleges the 77th Legislature passed House Bill 1649, now codified at Texas Govt. Code § 508.283(c) (Vernon Supp. 2002), which grants certain offenders, who have their parole or mandatory supervision revoked on or after September 1, 2001, credit for the portion of time they spent on parole or mandatory supervision — i.e., street-time or flat-time credits. (Memorandum in support at 4-5). Section 508.283(c) provides as follows:
If the parole, mandatory supervision or conditional pardon of a person other than a person described by Section 508.149(a) is revoked, the person may be required to serve the remaining portion of the sentence on which the person was released. For a person who on the date of issuance of a warrant or summons initiating the revocation process is subject to a sentence the remaining portion of which is greater than the amount of time from the date of the person's release to the date of issuance of the warrant or summons, the remaining portion is to be served without credit for the time from the date of the person's release to the date of revocation. For a person who on the date of issuance of the warrant of summons is subject to a sentence the remaining portion of which is less than the amount of time from the date of the persons release to the date of issuance of the warrant or summons, the remaining portion is to be served without credit for an amount of time equal to the remaining portion of the sentence on the date of issuance of the warrant or citation.
Petitioner stands convicted of delivery of a controlled substance, a crime not listed in § 508.149(a). Since his parole was revoked after September 1, 2001, he correctly asserts that § 508.283(c) controls whether he is entitled to credit for the time he spent on parole. When TDCJ began the process of revoking his parole, Petitioner had more than eleven years remaining on his 15-year sentence, having served a little over three and one-half years in custody from April 18, 1995, until December 1, 1998. TDCJ's records reflect that Petitioner spent "766 days out of custody" while on parole. (See Petition, Exh. B). The second sentence of § 508.283(c) provides that, if the remaining portion of the sentence is greater than the amount of time spent on parole, "the remaining portion [of the sentence] is to be served without credit" for the time spent on parole. (Emphasis added). Petitioner's remaining sentence of eleven years is greater than the 766 days he spent on parole. As such he is not entitled to credit for time he spent on parole.
Insofar as Petitioner relies on the law in effect before September 1, 2001, his challenge is without merit. Before September 1, 2001, Texas law provided that upon the revocation of parole, a "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 the time from the date of his release to the date of revocation." Tex. Code Crim. Pro. art. 42.18 §§ 14(a) (Vernon 1992 1993); Tex. Code Crim. Pro. art. 42.12 §§ 22 (Vernon 1979). See also Tex. Gov't Code Ann. §§ 508.283(c) (Vernon 1998). In Morrison v. Johnson, the Fifth Circuit upheld the constitutionality of the Texas statute after noting that it had previously rejected a challenge to a similar federal statute. 106 F.3d 127, 129 n. 1 (5th Cir. 1997) (citing Cortinas v. United States Parole Comm'n, 938 F.2d 43, 46 (5th Cir. 1991). Later, inThompson v. Cockrell, the Fifth Circuit asserted that the federal and Texas statutes which allow for the denial of street time credit after revocation of parole "do not raise constitutional concerns." 263 F.3d 423, 426 (5th Cir. 2001) (citing Morrison, 106 F.3d at 129 n. 1).
It is well-established that a convicted prisoner does not have a constitutional right to be released before the expiration of a valid sentence. See Greenholtz v. Inmates of the Nebraska Penal Correctional Complex, 442 U.S. 1, 7 (1979); Wottlin v. Fleming, 136 F.3d 1032, 1037 (5th Cir. 1998). A parole violator has no federal constitutional right to credit on his sentence for time spent on parole.See Newby v. Johnson, 81 F.3d 567, 569 (5th Cir. 1996); Betts v. Beto 424 F.2d 1299, 1300 (5th Cir. 1970) (per curiam). Accordingly, grounds one and two are without merit.
In his third ground Petitioner claims that TDCJ-ID, by interrupting his in-custody calendar time, is causing him to serve his sentence in installments in violation of Texas law. This challenge is likewise without merit. Texas law states that "[a] sentence must be continuous and a prisoner or inmate cannot be required to serve his sentence in installments." Ex parte Millard, 48 S.W.3d 190, 192 (Tex.Crim.App. 2001) (en banc). However, parole does not interrupt the continuity of a person's sentence. Ex parte Kuester, 21 S.W.3d 264, 272 (Tex.Crim.App. 2000) (en banc); Ex parte Dunn, 976 S.W.2d 208, 210 (Tex.Crim.App. 1998) (en banc). Moreover, denial of credit for time spent on parole after parole revocation does not interrupt the continuity of a person's sentence. Ex parte Kuester, 21 S.W.3d at 273 (citing Tex. Gov't Code §§ 508.283(c)). As stated in Ex parte Kuester, "[w]e note that denying . . . credit for the time . . . spent on parole does not mean the sentences were being served in installments. The statute provides for the loss of credit for the parole period following revocation of parole."Id.
In ground four, Petitioner alleges that TDCJ-ID is punishing him twice for the same offense in violation of the double jeopardy clause because TDCJ-ID, after revoking his parole, extended his scheduled release date by an amount equal to the time he spent on parole. (Memorandum in Support at 2.) This claim is meritless. The Fifth Circuit has declined to extend the protections of the Double Jeopardy Clause to parole revocation proceedings. Morrison v. Johnson, 106 F.3d 127, 129 n. 1 (5th Cir. 1997) (citing Cortinas v. United States Parole Comm'n, 938 F.2d 43, 46-47 (5th Cir. 1991), and United States v. Whitney, 649 F.2d 296, 298 (5th Cir. Unit B 1981)).
Next, in ground five, Petitioner asserts TDCJ did not appoint him counsel to advise him about "the legal ramifications of signing his parole certificate upon release from prison. (Memorandum in support at 3). Petitioner, however, does not have a constitutional right to representation of counsel when he is to be released on parole. In fact, even at the parole revocation stage, where the parolee may possibly be returned to confinement, there is no absolute right to counsel, and the need for counsel is determined on a case-by-case basis. See Gagnon v. Scarpelli, 411 U.S. 778, 790 (1973). Petitioner's claim that he was released on parole without legal representation at the time of the signing of the parole contract is therefore frivolous.
Lastly, in ground six, Petitioner claims that TDCJ is violating the separation of powers doctrine by extending his sentence. (Memorandum in Support at 4 and 5). This challenge is insufficient to support a claim for relief. Under Texas law, decisions regarding parole and sentence credits lie within the exclusive province of the executive branch of the government. TEX. CONST. art. IV, §§ 11. See also Rose v. State, 752 S.W.2d 529, 533 (Tex.Crim.App. 1987). The courts play no role in such decisions. Thus, whatever claim petitioner may have arising out of the denial of sentence credits for time spent on parole, the action of the parole board does not violate the separation of powers doctrine.
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.
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 recommendation. Pursuant toDouglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten-day period may bar a de novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.