Opinion
7:00-CV-125-R
October 1, 2002
MEMORANDUM OPINION AND ORDER
This is a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254 by an inmates confined in the French Robertson Unit of the Texas Department of Criminal Justice in Abilene, Texas. On July 2, 1984, in the 89th District Court of Wichita County, Texas, Walton entered a plea of guilty to the charge of irnirder and was, thereafter, found guilty and sentenced to forty years in prison. Petition ¶¶ 1-6; Respondent's Answer pp. 1-2. On May 4, 1993, Walton was released on parole. Respondent's Answer, Exhibit A. His parole was revoked on March 8, 1996 after Walton violated his conditions of release. Respondent's Answer, Exhibit B. Walton now seeks restoration of his previously earned good-time credits which were forfeited upon revocation of parole. See Petition ¶ 20 and attachment thereto; Petitioner Reply to Respondent's Brief p. 2. He claims that he is now unlawfully being forced to serve are-sentence. Petition ¶ 20.C; see Ex parte Walton, App. No. 43,831-01. Walton argues that the failure to credit his sentence with previously earned good-time constitutes an ex post facto, violation. Petitioner's Reply to Respondent's Brief p. 3. He has filed one state habeas application raising the issues presented in the case at bar without success. Ex parte Walton, App. No. 43,831-01. Thus, it appears that he has fully exhausted his state habeas remedies.
"The Ex Post Facto Clause of the Constitution is violated if a law; (1) punishes as a crime an act previously committed which was innocent when done; (2) makes more burdensome the punishment for a crime after its commission; or (3) deprives one charged with a crime of any defense available according to the law at the time when the act was committed." United States v. Layne, 43 F.3d 127, 131 (5th Cir.) (citing Collins v. Youngblood, 497 U.S. 37, 52, 110 S.Ct. 2715, 2724 (1990)), cert. denied, 514 U.S. 1077, 115 S.Ct. 1722 (1995). Walton appears to argue that the State's refusal to re-instate the good-time earned prior to his parole release makes his punishment more burdensome than it would have been prior to changes in parole laws. This is simply not the case. At the time of his parole revocation, the Texas Government Code provided in pertinent part:
On the revocation of parole or mandatory supervision of an inmate, the inmate forfeits all good conduct time previously accrued. On return to the institutional division the inmate may accrue new good conduct time for subsequent time served in the division. The department may not restore good conduct time forfeited on a revocation.
Tex. Gov't Code § 498.004(b) (Vernon 1996) (emphasis added). The language of the Texas statute regarding restoration of good-time credit is mandatory. Therefore, Petitioner has no right to the good-time credits previously forfeited. Even at the time of his conviction, Texas law did not mandate the restoration of good-time credits forfeited upon revocation of parole. See Tex.Rev.Civ. Stat. Ann. art. 6181-1 (Vernon 1977), now Tex. Gov't Code Ann. § 498.004(b) (Vernon 1998) (providing for automatic forfeiture of previously earned good-time credits "[u]pon the revocation of parole or mandatory supervision"); Ex parte Henderson, 645 S.W.2d 469, 472 (Tex.Crim., App. 1983) (holding that good-time credit not a right, but a privilege which maybe forfeited). Thus, there is no constitutionally protected liberty interest in the restoration of the forfeited good-time credits under the facts set forth in the case at bar. See Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 2300 (1995) (holding that a prisoner's protected liberty interests are limited to freedom from restraint which imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life). Because the State's refusal to re-instate Walton's good-time credits did not make his punishment more burdensome, he is not entitled to habeas relief on his ex post facto claim. See Hallmark v. Johnson, 11.8 F.3d 1073, 1079 (5th Cir.), cert. denied, 522 U.S. 1003, 118 SCt. 576 (1997) (holding that the loss of the opportunity for restoration of forfeited good-time credits does not constitute an ex post facto violation in Texas).
Walton claims that, because the State has refused to give him credit for the time spent on parole and because the State has refused to restore his good-time credits, he is now unlawfidly being forced to serve are-sentence. Petition ¶ 20.C; see Ex parte Walton, App. No. 43,831-01. Walton's argument is fundamentally flawed because the Board of Pardons and Paroles did not sentence him to an additional term beyond that which was imposed by the trial judge. The Board merely stripped Walton of the time served on parole which reduced the time credited against his sentence to the actual prison time which he had served prior to his parole release. The Board further refused to restore previously earned good-time credits. The Texas Board of Pardons and Paroles had such authority under state law and its actions did not violate Walton's constitutional rights. See Newby v. Johnson, 81 F.3d 567, 569 (5th Cir. 1996) (holding that, absent an allegation of procedural defect in the revocation proceeding, a claim of entitlement to credit for time spent on parole does not raise a substantial federal question).
Absent a claim that Petitioner has been deprived of some right secured to him by the United States Constitution or laws, habeas relief is not available. Thomas v. Torres, 717 F.2d 248, 249 (5th Cit. 1983), cert. denied, 465 U.S. 1010, 104 S.Ct. 1008 (1984).
IT IS THEREFORE ORDERED that the petition for writ of habeas corpus is DENIED.
A copy of this order shall be transmitted to Petitioner and to Counsel for Respondent.
SO ORDERED