Opinion
Civil Action No. 6:01-CV-026-C
May 29, 2002
ORDER
On this day the Court considered Walter Estes's ("Estes") Petition for Writ of Habeas Corpus by a Person in State Custody filed pursuant to 28 U.S.C. § 2254. Respondent Cockrell has filed an Answer with Brief in Support and the relevant state court records. Estes has filed a response and objections to Respondent's Answer.
Respondent has lawful custody of Estes pursuant to the following state-court judgments and sentences:
(1) On November 18, 1992, Estes pleaded guilty to the felony offense of aggravated sexual assault in Cause No. 554 in the 42nd Judicial District Court of Coleman County, Texas, and was sentenced to fifteen (15) years' incarceration in the Texas Department of Criminal Justice, Institutional Division ("TDCJ-ID") and a $1,000.00 fine.
(2) On May 4, 1993, Estes pleaded guilty to the felony offense of indecency with a child in Cause No. 12-915 in the 35th Judicial District Court of Brown County, Texas, and was sentenced to twenty (20) years' incarceration in TDCJ-ID.
(3) On May 6, 1994, Estes pleaded guilty to the felony offense of aggravated sexual assault of a child in Cause No. 0463676D in the 4th Criminal District Court of Tarrant County. Texas, and was sentenced to fifteen (15) years' incarceration in TDCJ-ID to run concurrently with his other sentences in Tarrant County.
(4) On May 6, 1994, Estes pleaded guilty to the felony offense of aggravated sexual assault of a child in Cause No. 0415671D in the 4th Criminal District Court of Tarrant County. Texas, and was sentenced to twenty (20) years' incarceration in TDCJ-ID to run concurrently with his other sentences in Tarrant County.
In the instant federal petition. Estes does not challenge any of these convictions and sentences; rather, he complains that he is entitled to release on mandatory supervision in Cause No. 12-915 and the denial of his release to mandatory supervision violates the constitutional prohibitions against ex post facto laws. Estes filed one state habeas application complaining about the denial of his release to mandatory supervision on Cause No. 12-915, but the trial court made no findings and the Texas Court of Criminal Appeals denied the application without written order. Estes did not raise the ex post facto' claim in his state application, but Respondent has specifically waived the exhaustion requirement. This Court has jurisdiction over this petition pursuant to 28 U.S.C. § 2241 and 2254.
A defendant in custody pursuant to a judgment and sentence of a state court must demonstrate that he is "in custody in violation of the Constitution or laws or treaties of the United States" before he will be entitled to federal habeas relief. 28 U.S.C. § 2254(a). See Allison v. Kyle, 66 F.3d 71, 73 (5th Cir. 1995) (holding that a state prisoner must demonstrate that "he has been deprived of some right secured to him . . . by the United States Constitution or the laws of the United States" before he can obtain federal habeas relief).
Estes first argues that under Texas law he is entitled to immediate release on mandatory supervision in Cause No. 12-915. "Prisoners may become eligible for release under Texas law on parole or under a mandatory supervised release program." Malchi v. Thaler, 211 F.3d 953, 957 (5th Cir. 2000). "Because it is entirely speculative whether a prisoner will be released on parole, the [United States Court of Appeals for the Fifth Circuit] has determined `that there is no constitutional expectancy of parole in Texas.'" Id. (quoting Madsion v. Parker, 104 F.3d 765, 768 (5th Cir. 1997)). See Mayabb v. Johnson, 168 F.3d 863, 871 (5th Cir. 1999) (holding that a Texas inmate has no constitutional right to parole). The Fifth Circuit has also determined, however, that the Texas mandatory supervision scheme in place prior to September 1, 1996, created "a constitutional expectancy of early release." Malchi v. Thaler, 211 F.3d at 957.
Texas law provides that a "prisoner who is not on parole shall be released to mandatory supervision when his calender time plus his accrued good-conduct time equals the maximum term to which he was sentenced." Id. at 957 n. 4 (citing Tex. Code Crim. P. Ann. art. 42.18(c) (Vernon 1996)). The Texas Court of Criminal Appeals has determined that "[f]or an inmate serving two or more concurrent sentences, . . . [the] `maximum term' must be the longest of the concurrent sentences, because this is the sentence that will keep him incarcerated for the longest amount of time." Ex parte Ruthart, 980 S.W.2d 469, 473 (Tex.Crim.App. 1998) (emphasis added). Estes has been sentenced to two fifteen-year sentences and two twenty-year sentences; so, clearly, his twenty-year sentences are the longest sentences. He correctly argues that he is eligible for release to mandatory supervision on his twenty-year sentence in Cause No. 12-915, but he fails to acknowledge that he is not eligible for his subsequent twenty-year sentence in Cause No. 0415671D. See Tex. Code Crim. P. art. 42.18, § 8(c)(6) (Vernon's 1990) (stating that a person serving a sentence for aggravated sexual assault under § 22.021 of the Texas Penal Code is not eligible for release to mandatory supervision).
The Texas Court of Criminal Appeals addressed a similar complaint in Ex parte Alexander, 861 S.W.2d 921 (Tex.Crim.App. 1993). In Alexander, the defendant was sentenced to twelve (12) years' incarceration for the offense of robbery in 1986. Id. at 922. The prisoner was subsequently released to mandatory supervision in January of 1990 pursuant to article 42.18, § 8(c) of the Texas Code of Criminal Procedure. Id. Later in 1990, the prisoner was convicted of another robbery end sentenced to eight (8) years' incarceration to run concurrently with the remainder of his first sentence. Id. By the time the defendant was sentenced. on his second robbery, however, article 42.18, § 8(c) had been amended to make a prisoner serving a sentence for robbery ineligible for release to mandatory supervision. Id. at 923 n. 6: The Texas Court of Criminal Appeals stated
[t]his situation is analogous to that where the applicant has two convictions pending and is (or should be) discharged on the first conviction before he is entitled to be released on the second. The fact that the later sentence is still pending when he should have been released is simply a function of the law in effect when the offenses were committed. Common sense dictates that when a person is convicted of a subsequent offense, he may not be released any earlier than the date appropriate for the subsequent offense.
Id. at 924. The Court of Criminal Appeals denied Alexander's request to be released to mandatory supervision on the 1986 conviction because he was ineligible for release on the 1990 conviction. Analogously, Estes is not entitled to be released to mandatory supervision in Cause No. 12-915 because he is serving a concurrent sentence in Causo No. 0415671D, for which he is not entitled to be released to mandatory supervision. See Lydy v. Beto, 399 F.2d 59, 61 (5th Cir. 1968) (holding that the longest sentence of concurrent sentences determines the parole eligibility date). See also Fairman v. Anderson, 198 F.3d 635, 641 (5th Cir. 1999) ("[L]egal conclusions that are explicitly grounded in state law may not be reviewed on federal habeas"). Because Estes cannot demonstrate that he is entitled to be released to mandatory supervision, he has failed to demonstrate the violation of a constitutional right.
Moreover, the Court finds that Estes's complaint regarding the application of an ex post facto law to bar his release is conclusory and wholly unsupported by any facts. See Koch v. Puckett, 907 F.2d 524, 530 (5th Cir. 1990) (holding that "mere conclusory allegations on a critical issue are insufficient to raise a constitutional claim").
Accordingly, this Court finds that Petitioner Estes has failed to demonstrate that he has been deprived of a right guaranteed by the law or Constitution of the United States, and his Petition should be DENIED and dismissed with prejudice.
All relief not expressly granted is denied and any pending motions are denied.