Opinion
No. 2:02-CV-0027.
May 27, 2004
REPORT AND RECOMMENDATION TO DENY PETITION FOR A WRIT OF HABEAS CORPUS
Petitioner ASCENCION GAONA has filed with this Court a Petition for a Writ of Habeas Corpus by a Person in State Custody seeking immediate release from custody to parole or mandatory supervised release. Petitioner is confined pursuant to the following convictions:
1. An August 30, 1993 conviction for the felony offense of aggravated robbery, enhanced, out of the 34th Judicial District Court of El Paso County, Texas, and the resultant 15-year sentence;
2. A March 21, 1991 conviction for the felony offense of burglary out of the 210th Judicial District Court of El Paso County, Texas, and the resultant 15-year sentence.
For the reasons hereinafter expressed, the Magistrate Judge is of the opinion petitioner's application for federal habeas corpus relief is without merit and should be DENIED.
I. PETITIONER'S ALLEGATION
Petitioner argues he is "entitled to the immediate parole release or speedier conditional release" because his "actual calendar time served plus good conduct time equals one-fourth of the sentence imposed." The undersigned construes petitioner's claims to be that his continued confinement is in violation of the Constitution and laws of the United States because he has not been released from confinement to parole or mandatory supervision.II. EXHAUSTION OF STATE COURT REMEDIES
From a review of petitioner's state court records, it appears petitioner has not satisfactorily exhausted his available state court remedies with regard to the issues he raises in this proceeding. However, this Court is authorized to deny relief on an unexhausted claim. 28 U.S.C. § 2254(b)(2); Alexander v. Johnson, 163 F.3d 906, 908 (5th Cir. 1998). Since petitioner's claim is without merit, it is the opinion of the undersigned that this Court should not dismiss petitioner's federal habeas application for any failure to exhaust.
III. TIME BAR
In his answer, respondent argues the instant federal habeas application is time barred. For purposes of the statutory limitation period, petitioner filed the instant application on December 29, 2001, the date he executed the petition and purportedly gave the petition to prison officials for mailing. Based on petitioner's claim that he should have been released to parole or mandatory supervision when his calendar time and good time equaled one-fourth of his sentence, the Court finds the latest date on which petitioner could have discovered the factual predicate of his claims was when his good time and flat time equaled one-fourth of his sentence and he was not released. The Court does not have records reflecting this exact date, however, petitioner has attested that a time slip dated November 9, 2000 reflected total time credits equaling more than fourteen (14) years. Even utilizing the belated date of November 9, 2000, to calculate the running of the 1-year limitation period in which petitioner was required to file his federal habeas application, this application would still be time barred as it was not filed until December 29, 2001, after the expiration of the limitation period on November 9, 2001. However, as discussed below, petitioner's claims are without merit, and it is the opinion of the undersigned Magistrate Judge that petitioner's federal habeas application be dismissed on the merits rather than as time barred.
Although it is unlikely the petition was mailed on this date as it was not received by this Court until January 18, 2002, the Court, in an abundance of caution, will use this date as the filing date. See Spotville v. Cain, 149 F.3d 374, 376-78 (5th Cir. 1998) (a prisoner's federal habeas corpus petition is deemed filed when he delivers the petition to prison officials for mailing to the district court).
Respondent argues the time period began to run on August 30, 1993, the date petitioner was sentenced for aggravated robbery as that was the date petitioner could have, through the exercise of due diligence, discovered he was not eligible for mandatory supervised release on the aggravated robbery offense.
Petitioner filed two state habeas applications challenging his conviction for aggravated robbery. Neither application raised the allegation raised herein that petitioner should be released from confinement based on his time calculations. Moreover, neither application, the first filed March 1, 2000 and denied May 17, 2000, or the second filed June 29, 2000 and dismissed August 16, 2000, tolled the one-year limitation period as they were completed prior to the initiation of limitation period.
IV. MERITS OF PETITIONER'S ALLEGATIONS
Petitioner argues he is entitled to early release from confinement to parole or mandatory supervision because his accrued time credits, including flat, good and work time, total one-fourth of the length of his 15-year sentence. Petitioner's claim is without merit.
"Parole" is the "discretionary and conditional release of an eligible prisoner sentenced to the institutional division so that the prisoner may serve the remainder of his sentence under the supervision and control of the pardons and paroles division." Tex. Code Crim. Proc. art. 42.18, § 2(1) (Vernon's 1992) (now Tex. Gov't Code § 508.001(6)). According to TDCJ-CID records, petitioner became eligible for release on parole, as opposed to mandatory supervision, on August 24, 1996. Release from "confined" custody in the form of parole to serve the remainder of one's sentence outside prisons walls, subject to specific conditions, is left solely to the discretion of the Board of Pardons and Paroles. Because this decision of whether to parole or not to parole is discretionary, prisoners in Texas possess no constitutionally protected right to release on parole. See Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 422 U.S. 1, 7 (1979); Madison v. Parker, 104 F.3d 765, 768-69 (5th Cir. 1997); Allison v. Kyle, 66 F.3d 71, 74 (5th Cir. 1995); Orellana v. Kyle, 65 F.3d 29, 32 (5th Cir. 1995), cert. denied, 116 S.Ct. 736 (1996); Gilbertson v. Texas Board of Pardons and Paroles, 993 F.2d 74, 75 (5th Cir. 1993). Consequently, to the extent petitioner claims he is entitled to immediate release from confinement to parole, his claim does not provide a basis for federal habeas corpus relief as no constitutional violation has occurred.
Petitioner also appears to claim he is entitled to immediate release to mandatory supervision. "Mandatory supervision" is the release of an eligible prisoner sentenced to the institutional division so that the prisoner may serve the remainder of his sentence not on parole but under the supervision and control of the pardons and paroles division." Tex. Code Crim. Proc. art. 42.18, § 2(2) (Vernon's 1992) (now Tex. Gov't Code § 508.001(5)). A prisoner who is eligible for mandatory supervision may be granted such release only when the actual calendar time he has served plus any accrued good conduct time is equal to the maximum term to which the prisoner was sentenced. Tex. Code Crim. Proc. art. 42.18, § 8(c) (Vernon's 1992) (now Tex. Gov't Code § 508.147(a)). Such release, however, is not mandatory and may be denied if a parole panel determines, and specifies in writing, that the inmate's accrued good conduct time is not an accurate reflection of the inmate's potential for rehabilitation and the inmate's release would endanger the public.
Petitioner, however, is incarcerated pursuant to a conviction for the offense of aggravated robbery. Consequently, petitioner is not eligible for release to mandatory supervision. Therefore, any good time credits he has earned apply only toward his eligibility for parole.
Under article 42.18, section 8(c) of the Texas Code of Criminal Procedure (now Tex. Gov't Code § 508.149(a)), inmates are not eligible for release to mandatory supervision if they are serving a sentence for certain crimes. Aggravated robbery under Texas Penal Code § 29.03 is one of the listed offenses and was a listed offense at the time petitioner was convicted of said offense in 1993.
Because petitioner possesses no liberty interest in obtaining release on parole, and as petitioner is not eligible for early release on mandatory supervision, petitioner's claims are without merit and his petition should be DENIED.
V. RECOMMENDATION
It is the RECOMMENDATION of the United States Magistrate Judge to the United States District Judge that the petition for a writ of habeas corpus filed by petitioner ASCENCION GAONA be DENIED.
VI. INSTRUCTIONS FOR SERVICE and NOTICE OF RIGHT TO OBJECT
The United States District Clerk is directed to send a file-marked copy of this Report and Recommendation to petitioner, utilizing the inmate correspondence card.
Any party may file objections to this Report and Recommendation within fourteen (14) days after its date of filing. 28 U.S.C. § 636(b); Rule 8(b)(3) of the Rules Governing Section 2254 Cases in the United States District Courts. See Fed.R.Civ.P. 5(b); 6(e). Any such objections shall be made in the form of a written pleading entitled "Objections to Report and Recommendation" and shall specifically identify the portions of the findings, conclusions, or recommendation to which objection is made, setting out fully the basis for each objection. Petitioner shall file the written objections with the United States District Clerk and serve a copy of such objections to all other parties. Petitioner's failure to timely file written objections to the proposed findings, conclusions, and recommendation contained in the original Report and Recommendation shall bar him, except upon grounds of plain error, from attacking on appeal the unobjected — to proposed factual findings and legal conclusions set forth in this report and accepted by the district court. Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).
IT IS SO RECOMMENDED.