Opinion
No. 3-02-CV-0419-L
March 8, 2002
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
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:
I.
This is a habeas case brought under 28 U.S.C. § 2254. Petitioner Raymond Bruce Hill was released to mandatory supervision after serving part of a 20-year sentence for aggravated robbery. Thereafter, his supervised release was revoked for an unspecified violation. Petitioner was sent back to prison and lost accumulated good time credits. He challenged this action in an application for writ of habeas corpus. The Texas Court of Criminal Appeals denied habeas relief. Petitioner then filed this action in federal court.
II.
Petitioner raises three issues in four grounds for relief. Succinctly stated, he contends that: (1) parole officials were not authorized to revoke his mandatory supervised release; (2) he is entitled to credit on his sentence for the time he was out on release and for previously earned good time credits; and (3) his due process rights were violated by the state habeas court.
A.
Petitioner first argues that he cannot be sent back to prison for violating the terms of his mandatory supervision because his release was not conditional. Although the decision whether to release an inmate who is eligible for mandatory supervision is not discretionary, the inmate remains subject to the supervision and control of the Texas Board of Pardons and Paroles while out on release. See TEX. CODE CRIM. PROC. ANN. art. 42.12, § 15 (Vernon 1977) ("prisoner released to mandatory supervision shall, upon release, be deemed as if released on parole"). It is ludicrous for petitioner to suggest that the parole board lacks the authority to initiate revocation proceedings if the inmate violates the conditions of his release. This ground for relief is without merit and should be overruled.
B.
In two related grounds, petitioner argues that he is entitled to credit on his sentence for "street time" while out on mandatory supervision and good time credits earned prior to his release.
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) (release on parole is "permissive" and does not give rise to constitutional interest); Orellana v. Kyle, 65 F.3d 29, 31-32 (5th Cir. 1995); cert. denied, 116 S.Ct. 736 (1996) (no constitutional right to early release on parole). This includes credit for "street time" while out on parole and the forfeiture of good conduct time previously earned. See Starnes v. Cornett, 464 F.2d 524, 524 (5th Cir.), cert. denied, 93 S.Ct. 341 (1972) (street time); United States v. Harrison, 461 F.2d 1127, 1130 (5th Cir.), cert. denied, 93 S.Ct. 174 (1972) (good conduct time). However, a state may not apply the parole laws retroactively. See Weaver v. Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 964, 67 L.Ed.2d 17 (1981). The critical inquiry is whether the law changes the legal consequences of an act completed before the effective date of the legislation. Weaver, 101 S.Ct. at 965; Story v. Collins, 920 F.2d 1247, 1251 (5th Cir. 1991).
The Fifth Circuit has held that the Texas mandatory supervision statute creates an expectancy of early release when the calendar time of eligible inmates, combined with good time credits, equals the sentence imposed. See 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). However, petitioner does not challenge the denial of his release to mandatory supervision. Instead, he seeks credit on his sentence for "street time" while out on release and previously earned good time credits. No court has held that such claims implicate a federal constitutional right.
Petitioner was sentenced to 20 years in prison for an aggravated robbery committed in 1984. The relevant statute in effect at the time the offense was committed provides for the automatic forfeiture of previously earned good time credits "[u]pon the revocation of parole or mandatory supervision." TEX. REV. CIV. STAT. ANN. art. 6181-1 (Vernon 1977), now TEX. GOV'T CODE ANN. § 498.004(b) (Vernon 1998). See also Exparte Henderson, 645 S.W.2d 469, 472 (Tex.Crim.App. 1983) (good time credit not a right, but a privilege which may be forfeited). There is no evidence that this statute has been applied retroactively to deprive petitioner of any right under state or federal law. Accordingly, there is no due process or ex post facto violation.
Nor is petitioner entitled to credit on his sentence for the time he was out on mandatory supervision. Under Texas law, the parole board is allowed to disregard the time a prisoner spends on mandatory supervision if he violates the conditions of his release. Thompson v. Cockrell, 263 F.3d 423, 426 n. 2 (5th Cir. 2001) (citing current law and noting that statutory language has remained virtually unchanged since 1965). See also TEX. CODE GRIM. PROC. ANN. art. 42.12, § 22 (Vernon 1979) ("When the Governor revokes a person's parole . . . that person may be required to serve the portion remaining of the sentence on which he was released, such portion to be calculated without credit for the time from the date of his release to the date of revocation."). There is nothing unconstitutional about this law. See Morrison v. Johnson, 106 F.3d 127, 129 n. 1 (5th Cir. 1997). These grounds are without merit and should be overruled.
C.
Finally, petitioner complains that his due process rights were violated because the state habeas court denied relief the same day his application was filed. The Fifth Circuit has repeatedly held that defects in a state habeas proceeding are not cognizable under 28 U.S.C. § 2254. See Rudd v. Johnson, 256 F.3d 317, 319-20 (5th Cir. 2001) (noting long line of cases dictating that infirmities in state habeas proceeding do not warrant federal habeas relief). Accordingly, this ground for relief should be overruled.
RECOMMENDATION
It plainly appears from the face of the pleadings that petitioner is not entitled to federal habeas relief. His application for writ of habeas corpus should be summarily denied. See RULES GOVERNING SECTION 2254 CASES, Rule 4.