Opinion
CIVIL ACTION NO. 4:04-CV-091-Y.
June 28, 2004
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER
This cause of action was referred to the United States Magistrate Judge under 28 U.S.C. § 636(b). The Findings, Conclusions, and Recommendation of the United States Magistrate Judge are as follows:
I. FINDINGS AND CONCLUSIONS A. NATURE OF THE CASE
This is a petition for writ of habeas corpus by a state prisoner under 28 U.S.C. § 2254.
B. PARTIES
Petitioner Dobbis Joe Carter, TDCJ-CID #370908, is in custody of the Texas Department of Criminal Justice, Correctional Institutions Division and is presently incarcerated in the Clements Unit in Amarillo, Texas.
Respondent Douglas Dretke is the Director of the Texas Department of Criminal Justice, Correctional Institutions Division.
C. PROCEDURAL HISTORY
On January 20, 1984, a jury found Carter guilty of rape and assessed his punishment at 20 years' confinement. (State Habeas R. at 23.) The Second District Court of Appeals affirmed the trial court's judgment. Carter v. State, 691 S.W.2d 112 (Tex.App. — 1985, no pet.).On January 30, 1990, Carter was released on parole. (Resp't Answer at Ex. A p. 2.) His parole was revoked on July 25, 2002. ( Id.) Carter filed a motion to reopen the hearing on September 5, 2002, but the Bard of Pardons and Paroles denied the motion on February 18, 2003. ( Id. at Ex. B p. 1.) Carter filed a state application for writ of habeas corpus, which the Texas Court of Criminal Appeals denied without written order. Ex parte Carter, No. 56,827-01 (Tex.Crim.App. Oct. 1, 2003) (not designated for publication). On January 27, 2004, Carter filed a federal petition for writ of habeas corpus in the United States District Court of the Northern District of Texas, Fort Worth Division. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (holding, under prison mailbox rule, pro se habeas petition filed when papers delivered to prison authorities for mailing).
D. ISSUES
Carter argues that:
1. the parole hearing officer acted improperly;
2. he is illegally serving his sentence in installments;
3. because he was released as a result of a clerical error, he should receive street-time credit for the time he was on parole; and
4. he is entitled to reinstatement of his good-time credits he earned before his release.
E. RULE 5 STATEMENT
Dretke believes Carter has sufficiently exhausted available state remedies on all issues presented and, thus, does not move for dismissal on this ground.F. DISCUSSION 1. Improper Conduct
Carter asserts the parole hearing officer acted improperly by telling him, "I need your (12) years back." (Federal Pet. at 7.) Other than his self-serving statements regarding the officer's conduct, Carter does not provide any proof or cite any authority in support of his allegation. Accordingly, this is a conclusory and unsupported allegation that cannot raise a constitutional issue and result in habeas corpus relief. Ross v. Estelle, 694 F.2d 1008, 1011-12 (5th Cir. 1983) (per curiam).
2. Forfeiture of Street-Time and Good-Time Credits
In his last two issues, Carter asserts that the loss of his street-time and good-time credits when his parole was revoked was unlawful. He also argues that the forfeiture of these credits, even though he was released because of a state clerical error, forces him to serve his sentence in installments.
When reviewing applications for habeas corpus, federal courts will only review allegations of deprivations of federal rights. 28 U.S.C. § 2254(a) (providing that federal courts "shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States"). There is no federal constitutional right to a sentence reduction for the time spent on parole after it is revoked. Newby v. Johnson, 81 F.3d 567, 569 (5th Cir. 1996) (per curiam); Stames v. Comett, 464 F.2d 524, 524 (5th Cir.) (per curiam), cert. denied, 409 U.S. 987 (1972). Further, Carter does not have a constitutionally protected right to restoration of any forfeited credits. Hallmark v. Johnson, 118 F.3d 1073, 1079-80 (5th Cir.), cert. denied, 522 U.S. 1003 (1997). Accordingly, Carter has failed to prove that he has been denied a constitutionally protected interest as to the forfeiture of his street-time credits.
Regarding Carter's installment argument, a Texas inmate who is prematurely paroled due to the State's clerical error and whose parole is subsequently revoked has a liberty interest in receiving credit against his sentence for the period spent on premature parole; he is entitled to this credit by virtue of the State's rule that a prisoner cannot be required to serve his sentence in installments unless the unlawful release was the prisoner's fault. Thompson v. Cockrell, 263 F.3d 423, 426-27 (5th Cir. 2001). Although Carter contends that he was released on parole based on a clerical error, there is no indication of such an error in Carter's parole records. (Resp't Answer at Ex. C.) Thus, he is not constitutionally entitled to restoration of any forfeited credits.
II. RECOMMENDATION
Carter's petition for writ of habeas corpus should be denied.
III. NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSIONS, AND RECOMMENDATION AND CONSEQUENCES OF FAILURE TO OBJECT
Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file specific written objections in the United States District Court to the United States Magistrate Judge's proposed findings, conclusions, and recommendation within ten (10) days after the party has been served with a copy of this document. The court is extending the deadline within which to file specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation until July 19, 2004. The United States District Judge need only make a de novo determination of those portions of the United States Magistrate Judge's proposed findings, conclusions, and recommendation to which specific objection is timely made. See 28 U.S.C. § 636(b)(1). Failure to file by the date stated above a specific written objection to a proposed factual finding or legal conclusion will bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any such proposed factual finding or legal conclusion accepted by the United States District Judge. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc); Carter v. Collins, 918 F.2d 1198, 1203 (5th Cir. 1990).
IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until July 19, 2004 to serve and file written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation. It is further ORDERED that if objections are filed and the opposing party chooses to file a response, the response shall be filed within seven (7) days of the filing date of the objections.
It is further ORDERED that the above-styled and numbered action, previously referred to the United States Magistrate Judge for findings, conclusions, and recommendation, is returned to the docket of the United States District Judge.