Opinion
CIVIL ACTION NO. 3:00cv1622-P.
May 8, 2001.
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to 28 U.S.C. § 636(b), and an order of the Court in implementation thereof, the subject cause has been previously referred to the United States Magistrate Judge. The findings, conclusions, and recommendations of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS:
Type Case: This is a petition for habeas corpus relief filed by a state inmate pursuant to 28 U.S.C. § 2254.
Parties: Petitioner is an inmate confined at the Beto I Unit of the Texas Department of Criminal Justice — Institutional Division (TDCJ-ID) in Tennessee Colony, Texas. Respondent is the Director of TDCJ-ID.
Statement of the Case: On January 16, 1998, Petitioner pled guilty to driving while intoxicated in cause number F-9753773-VH, in the Criminal District Court No. 1 of Dallas County, Texas. The trial court accepted Petitioner's plea and assessed punishment at four years in the TDCJ-ID. Petitioner did not appeal. (Petition ¶¶ 1-8.)
In the present petition, Cordova does not challenge the conviction. Instead, he contends that the Texas Board of Pardons and Paroles (Board) refuses to release him on discretionary mandatory supervision (DMS) on February 25, 1999, and December 15, 1999, in violation of the Due Process and Equal Protection Clauses. (Petition ¶ 20.)
On February 22, 2000, Cordova filed a state application for habeas corpus relief pursuant to Texas Code of Criminal Procedure article 11.07 challenging the Board's decision to not release him on DMS. Ex parte Cordova, No. 45, 711-01. The Texas Court of Criminal Appeals denied the state application without written order on the findings of the trial court without a hearing on July 12, 2000. Id. at cover.
The present § 2254 petition was filed on July 24, 2000. A show cause order was issued to the Respondent on October 24, 2000. On November 29, 2000, Respondent Johnson responded by filing a motion to dismiss the petition as time-barred pursuant 28 U.S.C. § 2244(d). The District Court, on February 27, 2001, adopted the findings, conclusions, and recommendations of the magistrate judge, granted the motion as to the February 25, 2000 denial of DMS as time-barred, but denied the motion as to the December 15, 1999 denial of DMS. Respondent Johnson was subsequently ordered to supplement his response with his answer to the Petitioner's allegations regarding the December 15, 1999 denial of DMS. Johnson filed his answer on March 29, 2001.
A prisoner's federal habeas corpus petition is deemed filed when he delivers the petition to prison officials for mailing to the district court. Spotville v. Cain, 149 F.3d 374, 376-78 (5th Cir. 1998). The petition was filed with the Clerk on July 27, 2000, but Cordova signed it on July 24, 2000, which is presumed to be the date of delivery to prison officials for mailing.
Findings and Conclusions: Section 2254(d) provides the standard of review in Section 2254 cases:
(d) An application for a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a State court shall not be granted with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
In Williams v. Taylor, ___ U.S. ___, ___, 120 S.Ct. 1495, 1523 (2000), the Supreme Court explained the Section 2244(d)(1) standard:
Under the "contrary to" clause, a federal habeas court may grant the writ if the state court arrives at a conclusion opposite to that reached by this Court on a question of law or if the state court decides a case differently than this Court has on a set of materially indistinguishable facts. Under the "unreasonable application" clause, a federal habeas court may grant the writ if the state court identifies the correct governing legal principle from this Court's decisions but unreasonably applies that principle to the facts of the prisoner's case.
Further, in review of a state prisoner's federal habeas petition, "a determination of a factual issue made by a State court shall be presumed to be correct," and the petitioner "shall have the burden of rebutting the presumption by clear and convincing evidence." 28 U.S.C. § 2254(e)(1).
The law governing release on mandatory supervision, Tex. Govt. Code § 508.147(a) provides that:
[e]xcept as provided in Section 508.149, a parole panel shall order the release of an inmate who is not on parole to mandatory supervision when the actual time the inmate has served plus any accrued good conduct time equals the term to which the inmate was sentenced.
The Texas Court of Criminal Appeals has recently determined that the statute creates a liberty interest in mandatory supervision release. Ex parte Geiken, 28 S.W.3d 553, 558 (Tex. Ct. Crim. App. 2000) (en banc) (citing Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 442 U.S. 1, 11-12, 99 S.Ct. 2100, 2105 (1979); Board of Pardons v. Allen, 482 U.S. 369, 377-378, 107 S.Ct. 2415, 2420-21 (1987)). The Court went on to describe this liberty interest as a "legitimate, although limited, expectation of release." Geiken, 28 S.W.3d at 559.
It is assumed for purposes of this recommendation that Cordova has satisfied the minimum eligibility requirements to be considered for mandatory release prior to December 15, 1999, on which date the parole board refused to release him to discretionary mandatory supervision.
Section 508.149 provides in pertinent part that:
(b) an inmate may not be released to mandatory supervision if a parole panel determines that:
(1) the inmate's accrued good conduct time is not an accurate reflection of the inmate's potential for rehabilitation; and
(2) the inmate's release would endanger the public.
(c) A parole panel that makes a determination under Subsection (b) shall specify in writing the reasons for the determination.
(d) A determination under Subsection (b) is not subject to administrative or judicial review, except that the parole panel making the determination shall reconsider the inmate for release to mandatory supervision at least twice during the two years after the date of the determination.
Tex. Govt. Code § 508.149(b)-(d).
In the Geiken opinion, the Texas Court of Criminal Appeals discussed what due process is required because the statute does create a liberty interest: notice and a meaningful opportunity to be heard. Geiken, 28 S.W.3d at 560 (citing LaChance v. Erickson, 522 U.S. 262, 266, 118 S.Ct. 753 (1998). In Texas, these requirements have resulted in the following procedure: ". . . to comply with due process in making the mandatory release decision, the Board must provide an inmate with timely notice that he will be considered for mandatory supervision release prior to that review taking place." Geiken, 28 S.W.3d at 560. A live hearing is not required. Geiken, 28 S.W.3d at 560. If release is denied, the inmate must be informed in what respects he falls short of qualifying for early release. Id. (citing Greenholtz, 442 U.S. at 16, 99 S.Ct. at 2108).
At the time of the February 24, 1999 denial of DMS, Cordova was informed of the reasons for the denial and was further advised that his next DMS review would be in February of 2000. See Affidavit of Howard Thrasher, Program Administrator III, Review and Release Processing Section, TDCJ-ID Parole Division ("Thrasher Aff.") at 2.
Petitioner is barred by 28 U.S.C. § 2244(d)(1)(D) from challenging this denial. See p. 2, supra.
One of the requirements to be met before being released on parole is to submit a reasonable release plan which is submitted for parole consideration when completed. See Thrasher Aff. at 4. The inmate can submit parole-related support information to either the Institutional Parole Officer or to the Parole Board to be placed in his file when the case is reviewed. See id. In this case, Cordova clearly recognized that he fell under the new discretionary mandatory supervision statute. See Respondent's Exhibit ("Res. Exh.") A (Cordova letter to Board dated October 19, 1998: ". . . but now since this new law that came into effect Sept. 1st of 96 . . . this means that the short way discharge date I have, that would have made it possible for me to leave after 22 months is no longer good. . . ."). He submitted to his file letters from himself, see Res. Exh. A, D, E, and his family for consideration at the Board's review, see Res. Exh. B, C (phone message of call from family member). When his DMS was denied again on December 15, 1999, he was again advised of the reasons that he was denied release to DMS and that his next review would be in February of 2001. See Thrasher Aff. at 7. On May 9, 2000, he was sent a status letter that provided him with the procedures and proper address for correspondence to be placed in his file for the next review of his case. Res. Exh. F (Notice of Discretionary Mandatory Review Status). Cordova did not offer any new information between May of 2000 and his third denial on November 13, 2000.
In his affidavit, Mr. Thrasher states that a Notice of Parole Panel Decision status letter was processed and sent to Cordova. Thrasher Aff. at 7. However, the actual letter is no longer available since those letters are only maintained for one year from the date generated on electronic file database. Id. Thrasher goes on to state that the notice would have provided the same information that is currently sent to offenders which would be the Board's decision to deny release, the month and year for the next review date, and the reasons for denial of DMS. Id. at 7-8.
Cordova was denied DMS release because: his accrued good time is not an accurate reflection of his potential for rehabilitation; his release would endanger the public; drug and/or alcohol involvement; and violation of previous probation, parole or mandatory supervision. Thrasher Aff. at 7.
Cordova has clearly received all of the due process afforded him. He has received from the Board the reasons why his mandatory supervision has been denied, notification of his next review date, and the opportunity to submit to his file evidence in his favor that he wishes the Board to consider at its next review. Petitioner's main complaint is that his flat time, good time and work time credits now equal four years or more total and the Board will not consider his good time and work time credits. He believes he is now entitled to release from prison. An inmate's sentence is not actually reduced by good conduct time credits. Ex parte Hallmark, 883 S.W.2d 672, 674 (Tex.Crim.App. 1994). Since 1977, Texas law has provided that good conduct time credits are a "privilege and not a right" and that they apply "only to eligibility for parole or mandatory supervision." Hallmark v. Johnson, 118 F.3d at 1079 (emphasis added); Ex parte Hallmark, 883 S.W.2d at 674; Tex. Govt. Code § 498.004(b). A Texas inmate cannot compute his sentence by adding good time credits to the time he has actually served (flat time) — it merely reflects when he is eligible for mandatory supervision, not that he is absolutely entitled to immediate release.
Cordova refers to good time and work time credits. Under Texas law work-time credits are treated as good-time credits. See TEX. GOVT. CODE § 498.003(D) (West 1992).
RECOMMENDATION:
For the foregoing reasons it is recommended that the § 2254 petition for habeas corpus relief be DENIED.
A copy of this recommendation shall be transmitted to the Petitioner and to counsel for Respondent.
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 (10) days after being served with a copy of this recommendation. Pursuant to Douglass v. United Serv. 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 (10) day period may bar a de novo determination by the district judge of any finding of fact and 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.