Opinion
No. 3-00-CV-1425-R
January 12, 2001
FINDINGS AND RECOMMENDATION OF THE UNITED STATES DISTRICT CLERKS OFFICE
This case has been referred to the United States magistrate judge pursuant to 28 U.S.C. § 636 (b) and a standing order of reference from the district court. The findings and recommendation of the magistrate judge are as follow:
PROCEDURAL BACKGROUND
This is a habeas case brought under 28 U.S.C. § 2254. Petitioner Johnny Ray Elliott is an inmate in the Texas prison system. Respondent Gary Johnson is the Director of the Texas Department of Criminal Justice, Institutional Division.
Petitioner was convicted of aggravated robbery and sentenced to life imprisonment. His conviction and sentence were affirmed on direct appeal. Elliott v. State, No. 59, 514 (Tex.Crim.App. 1978). Petitioner now claims that, despite his life sentence, he is eligible for early release to mandatory supervision. This claim was presented to the Texas Court of Criminal Appeals in an application for writ of habeas corpus. The application was denied without written order. Ex parte Elliott, No. 06, 006-08 (Tex.Crim.App. June 14, 2000) Petitioner then filed this action in federal court.
Petitioner filed six other state habeas applications challenging the validity of his underlying conviction and sentence. None of the grounds raised in chose applications are at issue here.
ISSUES PRESENTED
Petitioner contends that he should be released to mandatory supervision because his good time and flat time credits exceed 60 years. According to petitioner, all sentences over 60 years are equivalent to a life sentence for purposes of determining whether an inmate is eligible for release to mandatory supervision. Since petitioner has been incarcerated for more than 21 years and earned more than 39 years of good time credit, he maintains that he is entitled to immediate release.
STANDARD OF REVIEW
The standard of review in federal habeas proceedings is governed by the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"), Pub.L. No. 104-132, 110 Stat. 1214 (1996). Under the AEDPA, a petitioner may not obtain relief with respect to any claim that was adjudicated on the merits in a state court proceeding unless he shows that the prior adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law; 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. 28 U.S.C. § 2254 (d). A decision is contrary to clearly established federal law "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court of the United States] on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, ___, 120 S.Ct. 1495, 1523, 146 L.Ed.2d 389 (2000). An "unreasonable application" of clearly established federal law is one in which the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case," Id., 120 S.Ct. at 1523. A state court decision is entitled to deference unless it "was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding." Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000).
APPLICABLE LAW
A state prisoner does not have a federal constitutional right to obtain release prior to the expiration of his sentence. See Board of Pardons v. Allen, 482 U.S. 369, 378 n. 10, 107 S.Ct. 2415, 2421 n. 10, 96 L.Ed.2d 303 (1987); Orellana v. Kyle, 65 F.3d 29, 31 (5th Cir. 1995), cert. denied, 116 S.Ct. 736 (1996). However, the state law governing mandatory supervision in effect at the time petitioner was sentenced provided, in relevant part:
A prisoner who is not on parole, except a person under sentence of death, shall be released to mandatory supervision by order of the [Parole] Board when the calendar time he has served plus any accrued good conduct time equal the maximum term to which he was sentenced. A prisoner released to mandatory supervision shall, upon release, be deemed as if released on parole . . .
TEX. CODE CRIM. PROC. ANN. art, 42.12, § 15(c) (Vernon 1977). The Fifth Circuit has interpreted this statute to create an expectancy of early release to those inmates whose calendar time combined with good time credits equal the sentence imposed. Malchi v. Thaler, 211 F.3d 953, 957-58 (5th Cir. 2000), citing Wolff v. McDonnell, 418 U.S. 539, 557, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935 (1974).
DISCUSSION
The issue squarely presented is whether petitioner qualifies for early release under Article 42.12, § 15(c). As of June 30, 1999, petitioner had accrued 61 years and eight days of mandatory supervision time credits. (St. Habeas Tr. at 27). Prison records classify him as a "prospect" for mandatory supervision. ( Id.). Yet petitioner was not released despite accruing more than 60 years of credits toward his life sentence. Petitioner challenged this action in a motion for postconviction relief. The trial court determined that inmates with a life sentence are not eligible for mandatory supervision release because "[t]here is no way to determine numerically when flat time and good time equal a life sentence." ( Id. at 51). The Texas Court of Criminal Appeals adopted this finding and denied habeas relief. Ex parte Elliott, No. 06, 006-08 at cover.
As petitioner correctly notes, the state court findings are not supported by any case law. By contrast, petitioner cites a plethora of cases to support his argument that a 60-year sentence is equivalent to a life sentence for purposes of determining whether an inmate is eligible for release to mandatory supervision. However, none of these authorities directly address petitioner's claim. Many of the cases simply recite the standards for parole eligibility. See, e.g. Rodriguez v. Estelle, 536 F.2d 1096, 1097 (5th Cir. 1976) (Texas prisoner eligible for parole after serving 20 years); Arnold v. State, 786 S.W.2d 295, 306 n. 14 (Tex.Crim.App.), cert. denied, 111 S.Ct. 110 (1990) (no difference between 60-year sentence and greater sentence for purposes of determining parole eligibility). Others merely set forth the law regarding mandatory supervision. See, e.g. Ex parte Schroerer, 958 S.W.2d 811, 813 (Tex.Crim.App. 1997) (release to mandatory supervision not discretionary); Ex parte Henderson, 645 S.W.2d 469, 470-71 (Tex.Crim.App. 1983) (calculating release date under statute).
Two of the cases cited by petitioner do contain language suggesting that a life sentence is essentially equivalent to a 60-year sentence under Texas law. Rummel v. Estelle, 587 F.2d 651, 656 n. 8 (5th Cir. 1978); Smallwood v. State, 827 S.W.2d 34, 39 (Tex.App.-Houston [1st Dist.] 1992, pet. ref'd) (O'Connor, J., dissenting). However, neither case addresses this issue in the context of mandatory supervision. Both Rummel and Smallwood involve challenges to lengthy sentences imposed under the Texas habitual offender statute. The Rummel court noted in a footnote that "[i]n Texas, a life sentence has essentially the same effect as one for sixty years." Rummel, 587 F.2d at 656 n. 8. A similar observation was made by a dissenting justice in Smallwood. Smallwood, 827 S.W.2d at 39 ("In Texas, 60 years is the life sentence, the maximum the state can incarcerate a person."). None of the authorities relied on by petitioner stand for the proposition that an inmate serving a life sentence has an expectancy of early release to mandatory supervision after his good time and flat time credits exceed 60 years.
Without a more definitive case on point, the Court is unable to conclude that the state court decision is contrary to clearly established federal law or is otherwise unreasonable. 28 U.S.C. § 2254 (d); Williams, 120 S.Ct. at 1523. This ground for relief should be overruled.
RECOMMENDATION
Petitioner's application for writ of habeas corpus should be denied.
INSTRUCTIONS FOR SERVICE AND NOTICE OF RIGHT TO OBJECT
On this date the United States magistrate judge made written findings and a recommended disposition of petitioner's application for writ of habeas corpus in the above-styled and numbered cause. The United States district clerk shall serve a copy of these findings and recommendations on all parties by certified mail, return receipt requested. Pursuant to 28 U.S.C. § 636 (b)(1), any party who desires to object to these findings and recommendations must file and serve written objections within ten (10) days after being served with a copy. A party filing objections must specifically identify those findings and recommendations to which objections are being made. The district court need not consider frivolous, conclusory or general objections. The failure to file such written objections to these proposed findings and recommendations shall bar that party from obtaining a de novo determination by the district court. Nettles v. Wainwright, 677 F.2d 404, 410 (5th Cir. 1982). See also Thomas v. Arn, 474 U.S. 140, 150 (1985). Additionally, the failure to file written objections to proposed findings and recommendations within ten (10) days after being served with a copy shall bar the aggrieved party from appealing the factual findings and legal conclusions of the magistrate judge that are accepted or adopted by the district court, except upon grounds of plain error or manifest injustice. Douglass v. United Services Automobile Ass'n, 79 F.3d 1415. 1417 (5th Cir. 1996).