Opinion
CIVIL ACTION NO. 1:00-CV-082-C
June 24, 2002
ORDER
On this day the Court considered Steven Edward Fink's ("Petitioner") Petition for Writ of Habeas Corpus by a Person in State Custody filed on April 10, 2000, but deemed to be filed on March 27, 2000, the date Petitioner signed the petition. See Spotsville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) ("[A] pro se prisoner's habeas petition is filed for purposes of determining the applicability of the AEDPA, when he delivers the papers to prison authorities for mailing."). Respondent Johnson filed a Supplemental Response with Brief in Support and the relevant state court records. Petitioner has not filed a response or objections to the supplemental response.
Respondent originally filed an Answer with Brief in Support requesting that the petition be dismissed as time-barred. The request was denied and by Order dated August 14, 2001, Respondent was ordered to file an answer to address the merits of Petitioner's complaints. Although Petitioner filed objections to the original answer, he has not filed a response or objections to the supplemental answer.
Respondent has lawful custody of Petitioner pursuant to a judgment and sentence from the 104th Judicial District Court of Taylor County, Texas, in Cause No. 7002-B, styled The State of Texas v. Steven Fink. In that cause, Petitioner was found guilty of the felony offense of voluntary manslaughter on January 26, 1982, and the jury sentenced him to ten years' incarceration in the Texas Department of Corrections, now known as the Texas Department of Criminal Justice, Institutional Division ("TDCJ-ID"). Petitioner, however, does not challenge his conviction and sentence in the instant petition; rather, he complains about the time being credited to his sentence.
Although the state court records provided by Respondent are somewhat confusing, the Court finds that Petitioner has filed at least three state habeas applications challenging the time being credited to his sentence. In Application No. 12,903-02, filed on January 23, 1998, Petitioner specifically complains that he was denied credit for previously earned good time without due process; he was denied credit for time spent on mandatory supervision; and he is being forced to serve his sentence piecemeal rather than continuously. The state trial court determined that the restoration of good time or work time is discretionary with the Texas Board of Pardons and Paroles and that inmates are not entitled to credit on their sentences for time served on parole. The Texas Court of Criminal Appeals denied the application without written order on the findings of the trial court without a hearing on May 20, 1998.
In Application No. 12,903-03[A], filed on July 9, 1999, Petitioner complained that he was denied credit for time spent in a Kentucky jail pursuant to a revocation warrant and detainer from his Texas conviction and argued that he should also receive good time credit for this time. On September 8, 1999, the Texas Court of Criminal Appeals remanded the application to the state trial court for fact-finding regarding Petitioner's allegations.
In Application No. 12,903-03[B], filed on September 3, 1999, Petitioner alleged that he had been denied credit on his sentence for previously earned good time and time spent on parole, in violation of his constitutional rights because he had never signed a parole contract or mandatory supervision contract. The state trial court recommended that the application be denied without making any findings of fact. The cover sheet attached to this application states that the Texas Court of Criminal Appeals ordered the application filed and set for submission on January 12, 2000.
In Application No. 12,903-04, there is no copy of an application filed by Petitioner, but the cover sheet on Application No. 12,903-04 states that the application was denied without written order by the Texas Court of Criminal Appeals on December 15, 1999. The application does contain, however, specific findings of fact and conclusions of law entered by the state trial court on November 12, 1999, and appears to be in response to the Texas Court of Criminal Appeals' remand order dated September 8, 1999. There is a loose order in the state court records, that is, an order not attached to any of the writ applications, which was delivered by the Texas Court of Criminal Appeals on January 12, 2000, and states that
[r]elief is granted. The Texas Department of Criminal Justice, institutional division, shall credit the sentence in cause number 7002 in the 104th Judicial District Court of Taylor County for the additional period February 10, 1999, to April 20, 1999.
This is the flat time Petitioner sought credit for in Application No. 12,903-03[A], that is, the time he spent incarcerated in Kentucky on the Texas revocation warrant.
In the instant federal petition, Petitioner complains that:
1. He has served his complete sentence and is being denied credit for previously earned good time and flat time (including the time spent in Kentucky on the Texas revocation warrant) without due process;
2. He has been arrested after his sentence was completed in violation of the prohibitions against double jeopardy and the re-arrests are lengthening his sentence;
3. He has not signed a parole contract or mandatory supervised release contract, contrary to what the TDCJ Parole Division alleges;
4. His repeated releases and revocations are forcing him to serve his sentence piecemeal; and
5. He is being denied credit for time he spent on mandatory supervision and parole, which has unconstitutionally lengthened his sentence.
This Court has jurisdiction pursuant to 28 U.S.C. § 2241 and 2254.
A petitioner 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. Allison v. Kyle, 66 F.3d 71, 73 (5th Cir. 1995). It is well-established that a federal habeas petitioner's claim that he was unconstitutionally denied credit for "street time" spent on parole is without merit. Morrison v. Johnson, 106 F.3d 127, 129 n. 1 (5th Cir. 1997); Newby v. Johnson, 81 F.3d 567, 569 (5th Cir. 1996); Starnes v. Cornea, 464 F.2d 524 (5th Cir. 1972); Cox v. Texas, 433 F.2d 982 (5th Cir. 1970); and Campos v. Johnson, 958 F. Supp. 180, 1182 (W.D. Tex. 1997). See Tex. Code of Crim. P. Ann. art. 42.18 § 14(a) (Vernon Supp. 1990) (currently Tex. Gov't Code Ann. § 508.156(e) (2000)) ("When a person's parole, mandatory supervision, or conditional pardon is revoked, that person may be required to serve the portion remaining of the sentence on which he was released, such portion remaining to be calculated without credit for time from the date of his release to the date of revocation."). Accordingly, the Court finds that Petitioner's complaint about the denial of credit for time spent on mandatory supervision does not raise a constitutional claim.
In addition, a prisoner has no constitutional or inherent right to be released on parole or to receive credit on his sentence for good behavior while incarcerated. See Greenholtz v. Nebraska Penal Inmates, 442 U.S. 1, 7 (1979 ("There is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence."); Wolff v. McDonnell, 418 U.S. 539, 557 (1974) ("[T]he Constitution itself does not guarantee good-time credit for satisfactory behavior while in prison."). Nevertheless, the Supreme Court has recognized "that States may under certain circumstances create liberty interests which are protected by the Due Process Clause." Sandin v. Conner, 515 U.S. 472, 483-84 (1995). See Board of Pardons v. Allen, 482 U.S. 369, 377-78 (1987) (holding that a Montana statute created a liberty interest in release on parole where the statute used mandatory language — "shall be released" — which created a presumption that inmates would be released). Texas law provides that good time or work time credits affect an inmate's eligibility for release on parole or mandatory supervision but do not affect the length of his sentence. Tex. Gov't Code Ann. § 498.003 (Vernon Supp. 1998); Ex parte Montgomery, 894 S.W.2d 324 (Tex.Crim.App. 1995). See Ex parte Morris, 626 S.W.2d 754, 757 (Tex.Crim.App. 1982) (holding that whether designated "work time" or "good time" credits, such credits do not become vested under Texas law). Texas law thus provides that good conduct time credits are a privilege and not a right. Hallmark v. Johnson, 118 F.3d 1073, 1079 (5th Cir. 1997). See Malchi v. Thaler, 211 F.3d 953, 959 (5th Cir. 2000) (holding that "the Texas legislature specifically states that it has not created a right to good conduct time"). Petitioner points to no rule or regulation that creates a constitutionally-protected interest in his good time credits accrued before his release to mandatory supervision. Hence, the Court finds that Petitioner has not demonstrated that he has a constitutionally protected liberty interest in his previously earned good time credits.
As for Petitioner's claim that he is being subjected to double jeopardy, the double jeopardy protections do not apply to parole or mandatory supervision revocation proceedings. Stringer v. Williams, 161 F.3d 259, 262 (5th Cir. 1998); Morrison v. Johnson, 106 F.3d at 129 n. 1; United States v. Whitney, 649 F.2d 296 (5th Cir. 1981).
Petitioner also complains that he never signed the parole contract and thus his release to parole or mandatory supervision was illegal. Petitioner, however, offers no support for this allegation. See Smallwood v. Johnson, 73 F.3d 1343, 1351 (5th Cir. 1996) (holding that a federal habeas court will not consider conclusory allegations on a critical issue). His complaint that he was not technically in custody because he never signed the contract is wholly meritless. Cf. Orellana v. Kyle, 65 F.3d 29, 32 (5th Cir. 1995) (holding that because Texas law does not create a constitutionally protected liberty interest in parole, an inmate cannot complain of the constitutionality of procedural devices attendant to parole decisions). Finally, to the extent that his complaint requests this Court to review a simple interpretation of state law by the state courts, he has failed to state a claim cognizable on federal habeas review. Nobles v. Johnson, 127 F.3d 409, 418 n. 21 (5th Cir. 1997). See Travis v. Lockhart, 925 F.2d 1095, 1097 (8th Cir. 1991) (holding that the interpretation of state statutes regarding credit for time served "is a matter of state concern and not a proper function of a federal court under its habeas corpus jurisdiction").
As for Petitioner's complaint that he is being forced to serve his sentence "piecemeal," the Court has reviewed the state court records and the records attached to Respondent's original answer, and finds that the complaint is without merit.
For the reasons stated above, this Court finds that Petitioner Fink 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 all pending motions are denied.