Opinion
No. 3-02-CV-1642-G
December 13, 2002
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Mark Christopher George, appearing pro se, has filed an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons stated herein, the application should be denied.
I.
On February 28, 2001, petitioner was released to parole after serving two years of a seven-year sentence for burglary of a habitation. Just nine months later, petitioner was arrested and charged with burglary of a building. A pre-revocation warrant was issued on November 20, 2001. On March 7, 2002, petitioner pled guilty to the reduced charge of attempted burglary of a building and was sentenced to 10 months confinement. Thereafter, petitioner waived his right to a preliminary hearing and a revocation hearing. His parole was revoked on March 21, 2002.
Petitioner challenged his parole revocation and the forfeiture of work credits in an application for state post-conviction relief. The application was denied without written order. Ex parte George, No. 42, 043-02 (Tex.Crim.App. Jul. 10, 2002). Petitioner then filed this action in federal court.
Although petitioner was convicted in Tarrant County, Texas, he is currently incarcerated in the Hutchins State Jail which is located in Dallas County, Texas. Therefore, jurisdiction and venue are proper in the Dallas Division of the Northern District of Texas. See 28 U.S.C. § 2241(d) (federal habeas petition must be filed in the district and division where the prisoner is incarcerated or the state court that convicted and sentenced the petitioner was held).
II.
In three grounds for relief, petitioner contends that: (1) he was denied a preliminary revocation hearing; (2) he is entitled to reinstatement of previously earned work credits; and (3) he has been denied early release in retaliation for exercising his constitutional rights.A.
Petitioner first contends that he was denied a preliminary revocation hearing in violation of his right to due process under the Fourteenth Amendment to the United States Constitution.
1.
A parole revocation proceeding must satisfy the minimum requirements of due process. Morrissey v. Brewer, 408 U.S. 471, 482, 92 S.Ct. 2593, 2601, 33 L.Ed.2d 484 (1972). This includes "some minimal inquiry . . . at or reasonably near the place of the alleged parole violation or arrest and as promptly as convenient after arrest while information is fresh and sources are available." Id., 92 S.Ct. at 2602. An inordinate delay in this process may result in a waiver of jurisdiction over the parolee. See Shields v. Beto, 370 F.2d 1003, 1006 (5th Cir. 1967). However, the conduct of state officials "must be so affirmatively wrong or its inaction so grossly negligent that it would be unequivocally inconsistent with `fundamental principles of liberty and justice' to require a legal sentence to be served in the aftermath of such action or inaction." Piper v. Estelle, 485 F.2d 245, 246 (5th Cir. 1973). Compare Clifton v. Beto, 298 F. Supp. 1384, 1388 (S.D. Tex. 1968), aff'd, 411 F.2d 1226 (5th Cir. 1969) (10-year delay between date of arrest and parole revocation hearing not inordinate), with Shields, 370 F.2d at 1006 (28-year delay resulted in waiver of jurisdiction over parolee). Moreover, a parolee must demonstrate "actual prejudice" caused by the unreasonable delay. See Villarreal v. United States Parole Comm'n, 985 F.2d 835, 837 (5th Cir. 1993).
2.
The record shows that petitioner was arrested for burglary of a building while out on parole. A pre-revocation warrant was issued on November 20, 2001. (St. Hab. Tr-II 25-26). Petitioner was not given a preliminary hearing and remained in custody for more than 113 days before he was interviewed by a parole officer. According to petitioner, this delay prejudiced his ability to obtain bond or present a defense to the underlying burglary charge.
Although petitioner couches his argument in due process terms, he cites to section 508.2811 of the Texas Government Code. (Hab. Pet. at 7). This statute provides:
A parole panel or a designee of the board shall provide within a reasonable time to an inmate or [releasee] a preliminary hearing to determine whether probable cause or reasonable grounds exist to believe that the inmate or person has committed an act that would constitute a violation of a condition of release, unless the inmate or person:
(1) waives the preliminary hearing; or
(2) after release:
(A) has been charged only with an administrative violation of a condition of release; or
(B) has been adjudicated guilty of or has pleaded guilty or nolo contendere to an offense committed after release, other than an offense punishable by fine only involving the operation of a motor vehicle, regardless of whether the court has deferred disposition of the case, imposed a sentence in the case, or placed the inmate or person on community supervision.
TEX. GOV'T CODE ANN. § 508.2811 (Vernon Supp. 2002) (emphasis added). The state habeas court determined that petitioner was not entitled to a preliminary hearing because he pled guilty to the underlying burglary charge on March 7, 2002. (St. Hab. Tr-II 62). However, this occurred more than three months after a pre-revocation warrant was issued. Petitioner now claims that his delay violated his right to due process under Morrissey.
The court initially observes that petitioner was never taken into custody on a pre-revocation warrant. Instead, he was arrested for burglary of a building and remained in custody until he pled guilty and was sentenced on a reduced misdemeanor charge. It therefore is doubtful whether petitioner has a due process right to a prompt preliminary hearing. See Morrissey, 92 S.Ct. at 2603 (execution of parole violator warrant and custody under that warrant are operative events triggering any loss of liberty attendant upon parole revocation); Moody v. Daggett, 429 U.S. 78, 87, 97 S.Ct. 274, 279, 50 L.Ed.2d 236 (1976) (loss of liberty as a parole violator does not occur until parolee is taken into custody under violator warrant).
Assuming arguendo that petitioner had a due process right to a prompt preliminary hearing, a three-month delay between the time of arrest and initial contact by a parole officer is not per se unreasonable. See, e.g. Morrissey, 92 S.Ct. at 2604 (two-month lapse "would not appear to be unreasonable"); Bartley v. Johnson, No. 3-97-CV-2154-T, op. at 5 (N.D. Tex. Aug. 28, 2000), rec. adopted, (Sept. 25, 2000), COA denied, No. 00-11195 (5th Cir. Feb. 13, 2001) (120-day delay in holding a parole revocation hearing did not violate due process). Nor has petitioner demonstrated "actual prejudice" as a result of the delay in being advised of his right to a preliminary hearing. Petitioner's speculative assertion the he might have been eligible for bond in the underlying burglary case and "might have taken a different route to the disposal of his felony charge" is insufficient to merit habeas relief. See Schlang v. Heard, 691 F.2d 796, 799 (5th Cir. 1982), cert. denied, 103 S.Ct. 2419 (1983) (conclusory statements do not raise constitutional issue in habeas case). Finally, petitioner ultimately decided to waive his right to both a revocation hearing. (St. Hab. Tr-II 34). Under these circumstances, there is no due process violation.
B.
Petitioner also seeks reinstatement of work credits earned prior to his release on parole. He contends that the forfeiture of these credits constitutes double jeopardy and violates the Thirteenth Amendment to the United States Constitution.
Texas law provides for the forfeiture of previously earned good time credits "[u]pon revocation of parole or mandatory supervision of an inmate . . ." TEX. GOV'T CODE ANN. § 498.004(b) (Vernon Supp. 2002). Contrary to petitioner's assertion, there is no distinction between good time credits and work credits. Although petitioner generally contends that this law is unconstitutional, there is clearly established federal precedent to the contrary. See Morrison v. Johnson, 106 F.3d 127, 129 n. 1 (5th Cir. 1997) (no double jeopardy violation in requiring parole violator to serve remaining portion of his sentence); Murray v. Mississippi Dep't of Corrections, 911 F.2d 1167, 1168 (5th Cir. 1990), cert. denied, 111 S.Ct. 760 (1991) ( Thirteenth Amendment does not prohibit servitude as punishment for criminal offense); Hamill v. Wright, 870 F.2d 1032, 1036 (5th Cir. 1989) (no federal constitutional right to award of good conduct credits); Granville v. Hogan, 591 F.2d 323, 324 (5th Cir. 1979) (recognizing "well established" rule that parole violators forfeit good time credits). This ground for relief is without merit and should be overruled.
Petitioner was convicted in 1998. At that time, Texas law provided for the award of good time credits based on participation in prison work programs. See TEX. GOV'T CODE ANN. § 498.003 (Vernon 1998).
C.
In a related argument, petitioner contends that he has been denied early release in retaliation for exercising his constitutional rights. Evidently, petitioner believes that he has been eligible for parole since June 17, 2001. ( See Hab. Pet., Exhs. E F). However, this calculation is based on previously earned work credits. These credits were automatically forfeited when petitioner's parole was revoked. Consequently, he is no longer eligible for early release.
Petitioner did not raise this claim in his application for state post-conviction relief. However, "[a]n application for writ of habeas corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State." 28 U.S.C. § 2254(b)(2).
RECOMMENDATION
Petitioner's application for writ of habeas corpus should be denied.