Opinion
3:01-CV-333-H.
November 2, 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 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 currently confined at the Eastham Unit of the Texas Department of Criminal Justice, Institutional Division (TDCJ-ID), in Lovelady, Texas. Respondent is the Director of the TDCJ-ID. The court has not issued process in this case.
Statement of Case: On April 1, 1986, Petitioner pled guilty to aggravated robbery with a deadly weapon in the 204th Judicial District Court of Dallas County, Texas. The court assessed punishment at twelve years in the TDCJ-ID. (See Petition ¶¶ 1-4). Subsequently, Petitioner was released on mandatory supervision/parole. He remained on mandatory supervision/parole until April 2000 when the TDCJ Pardons and Parole Division revoked his supervision/parole and recommitted him to the TDCJ-ID. (See Petition ¶ 13). As part of the revocation proceedings, the Pardons and Parole Division forfeited good-time credits earned prior to Petitioner's release on parole and refused to give him credit for the time he served on parole — i.e., street-time or flat-time credits.
Liberally construed, the petition challenges the forfeiture of Petitioner's good-time and street-time credits on due process, double jeopardy, and ex post facto grounds. (Petition ¶ 20).
On August 9, 2000, Petitioner filed a state application for writ of habeas corpus pursuant to art. 11.07, TEX. CODE CRIM. P., raising the above claims. (Petition ¶ 11). On January 24, 2001, the Texas Court of Criminal Appeals denied the application on the findings of the trial court without a hearing. (Id. and White Card attached to the Petition).
Findings and Conclusions: Rule 4, of the Rules Governing Section 2254 Cases in the United States District Court, 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." The instant petition does not present any cognizable basis for habeas corpus relief.
Petitioner is not entitled to credit for the "flat time" or "street time" that he spent while on parole. See Morrison v. Johnson, 106 F.3d 127, 129 n. (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), TEX. GOV'T CODE, which recently re-codified article 42.18 § 14(a), TEX. CODE CRIM. PROC., 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. 42.12 § 22 (West 1987). 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).
Petitioner contends, however, that the TDCJ-ID has increased his sentence without due process of law. This argument is unavailing. Petitioner lacks a protected liberty interest in street-time credits. As noted above, Texas law specifically denies street-time credits following parole revocation.
Petitioner's reliance on the Double Jeopardy and Ex Post Facto Clauses fares no better. The implementation of art. 42.18, TEX. CODE CRIM. P., 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 mandatory supervision.
Similarly, Petitioner's claim for restoration of good-time credits does not raise a claim for deprivation of a federal constitutional right. At the time of Petitioner's conviction and sentence, Article 6181-1 § 4, of the Texas Revenue Civil Statute, provided in part as follows:
Upon revocation of parole or mandatory supervision, the inmate loses all good conduct time previously accrued, but upon return to the department may accrue new good conduct time for subsequent time served in the department. The director may, however, restore good conduct time forfeited upon revocations not involving new criminal convictions after an inmate has served a reasonable period of good behavior in the department, to be not less than three months, subject to rules and policies promulgated by the department.
TEX. REV. CIV. STAT. ANN. art. 6181-1, § 4 (West 1987) (emphasis added). In 1991, the Texas Legislature re-codified the above statutory provision, but left the forfeiture and restoration sections intact. See TEX. GOV'T CODE ANN. § 498.004(b) (West 1992). Subsequently, on September 1, 1995, the Texas Legislature deleted the restoration provision from § 498.004(b). See TEX. GOV'T CODE ANN. § 498.004(b) (West 1996);see also Ex parte Hatcher, 894 S.W.2d 364, 365 and n. 1 (Tex.Crim.App. 1995). Presently § 498.004(b) reads as follows:
Effective on September 1, 1989, a similar provision governed the forfeiture of good-time credits following parole revocation. Texas Government Code § 497.004 provided in part as follows:
(b) On the revocation of parole or mandatory supervision of an inmate, the inmate forfeits all good conduct time previously accrued. On return to the department the inmate may accrue new good conduct time for subsequent time served in the department. The director may restore good conduct time forfeited on a revocation that does not involve a new criminal conviction after the inmate has served at least three months of good behavior in the department subject to rules adopted by the department. . . .
TEX. GOV'T CODE ANN. § 497.004(b) (West 1990) (emphasis added).
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 ANN. § 498.004(b) (West 2001) (emphasis added).
Petitioner's reliance on the Due Process Clause is meritless. Petitioner does not have a liberty interest in good-time credits. Cf. Hallmark, 118 F.3d at 1079 (state prisoners did not have protected liberty interest in restoration of good-time credits forfeited due to disciplinary violation). Texas law has long provided that good-time credits are "a privilege and not a right." TEX. CIV. STAT. art. 6181-1 § 4 (West. 1988). Moreover, until September 1, 1995, Texas law vested complete discretion with the state correctional authorities on the issue of restoration of good-time credits forfeited for parole revocation.
Liberally construed, the petition also alleges that the retroactive application of § 498.004(b), as amended in 1995, increases the punishment attached to Petitioner's offense. "The imposition of a punishment more severe than that assigned by law when the criminal act occurred is a violation of the Constitution's ex post facto prohibition." Hallmark, 118 F.3d 1073, 1077 (citing Weaver v. Graham, 450 U.S. 24, 30, 101 S.Ct. 960, 964, 67 L.Ed.2d 17 (1981)). To amount to an ex post facto violation, a change must be both retroactive and to a prisoner's detriment. Id.
The 1995 amendment at issue here did not retroactively deny Petitioner's opportunity to reduce his sentence. Section 498.004(b), as amended in 1995, did not retract already accumulated good-time credits, nor did the Director deny Petitioner the opportunity to earn good-time credits. The only change from the 1995 amendment was that upon loss of good-time credits because of parole revocation or revocation of mandatory supervision, the director could no longer exercise discretion to restore those credits.
Likewise the 1995 amendment did not increase the punishment proscribed for Petitioner's offense. As noted above, Texas law has provided, at least since 1989, a possibility of losing earned good-time credits because of parole revocation and never having those credits restored. Moreover, since 1977, good-time credits have applied only to the eligibility for parole or mandatory supervision, and have not affected an inmate's sentence. See TEX. REV. CIV. STAT. ANN. art. 6181-1, § 4 (West 1988), currently TEX. GOV'T CODE § 498.003(a) (West 2001); see also Hallmark, 118 F.3d at 1079; Ex parte Montgomery, 894 S.W.2d 324, 328 (Tex.Crim.App. 1995). Once an inmate is paroled or released to mandatory supervision the period of parole is equal to the maximum term for which the person was sentenced less the calendar time actually served on the sentence; good-time credits do not reduce a person's sentence.See TEX. CODE CRIM. P. art. 42.18, § 8 (West 1997), currently TEX. GOV'T CODE ANN. § 508.142(c) (West 2001) (effective Sept. 1, 1997). Therefore, removing the director's discretion to restore forfeited good-time credits did not increase Petitioner's punishment.
"`[T]here is a critical difference between a diminution of the ordinary rewards for satisfactory performance of a prisoner sentence . . . and an increase in sanctions for future misbehavior. . . .'" Hallmark, 118 F.3d at 1079 (quoted case omitted). Because § 498.004(b) did not amount to an ex post facto violation, the District Court should deny Petitioner's request for restoration of the forfeited good-time credits.Cf. id. at 1077-79 (directive removing director's discretion to restore good-time credits forfeited due to disciplinary infractions did not violate ex post facto prohibition, although, under previous scheme, possibility existed that inmates would have such credits restored); Ex parte Hallmark, 883 S.W.2d 672 (Tex.Crim.App. 1994) (same).
RECOMMENDATION:
For the foregoing reasons, it is recommended that the petition for a writ of habeas corpus be summarily dismissed pursuant to Rule 4, of the Rules Governing § 2254 cases in the District Courts.
The Clerk shall mail a copy of this recommendation 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 to Douglass 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.