Opinion
No. 3:02-CV-2710-D
September 30, 2003
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b) and an order of the District Court, this case has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge follow:
FINDINGS AND CONCLUSIONS I. Parties
Plaintiff is currently confined in the Texas Department of Criminal Justice, Institutional Division. He brings this suit pursuant to 42 U.S.C. § 1983. Plaintiff is proceeding pro se, and the Court has granted him permission to proceed in forma pauperis, Defendant is Governor Rick Perry.
II. Background
Plaintiff alleges he received an unfair trial for a burglary offense. He states the jury was illegally impaneled. Plaintiff also argues that a prior conviction used to enhance the burglary conviction was invalid. Additionally, Plaintiff argues the Parole Board has unlawfully extended his sentenced by refusing to credit him with street time and that the Parole Board refuses to commute his sentence.
III. Discussion
Plaintiff's complaint is subject to preliminary screening under 28 U.S.C. § 1915A. That section provides in pertinent part:
The court shall review . . . as soon as practicable after docketing, a complaint in a civil action in which a prisoner seeks redress from a governmental entity or officer or employee of a governmental entity [and] [o]n review, the court shall identify cognizable claims or dismiss the complaint, or any portion of the complaint, if the complaint (1) is frivolous, malicious, or fails to state a claim upon which relief may be granted; or (2) seeks monetary relief from a defendant who is immune from suit.28 U.S.C. § 1915A(a) and (b); see also 28 U.S.C. § 1915(e)(2)(B) ("Notwithstanding any filing fee, or any portion thereof, that may have been paid, the court shall dismiss the case at any time if the court determines that . . . (B) the action or appeal-(i) is frivolous or malicious; (ii) fails to state a claim on which relief may be granted; or (iii) seeks monetary relief against a defendant who is immune from suit.").
Both § 1915A(b) and § 1915(e)(2)(B) provide for sua sponte dismissal if the Court finds that the complaint is frivolous or fails to state a claim upon which relief may be granted. A complaint is frivolous if it lacks an arguable basis in either law or fact. Neitzke v. Williams, 490 U.S. 319, 325 (1989). A complaint fails to state a claim upon which relief may be granted when it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim that would entitle him to relief. Conley v. Gibson, 355 U.S. 41, 45-46 (1957).
1. Heck v. Humphrey
Plaintiff claims he received an unfair trial for a burglary offense. He also claims the jury was illegally impaneled. Plaintiff was convicted of the burglary charge and was sentenced to 20 years confinement. ( See Magistrate Judge's Questionnaire, Answer No. 1).
In Heck v. Humprey, 512 U.S. 477 (1994), the Supreme Court held that a § 1983 claim attacking the constitutionality of a conviction or imprisonment does not accrue until that conviction or sentence has been "reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal authorized to make such determination, or called into question by a federal court's issuance of a writ of habeas corpus." Heck, 512 U.S. at 486-87. Heck also bars damage claims, which, if successful, would necessarily imply the invalidity of a conviction or pending charge. Hamilton v. Lyons, 74 F.3d 99, 103 (5th Cir. 1996).
Plaintiffs claims that his trial was unfair and that the jury was illegally impaneled necessarily imply the invalidity of his conviction. Plaintiff states his claim that the jury was illegally paneled "has been reviewed by both state and federal courts and denied." ( See Magistrate Judge's Questionnaire, Answer No. 2). Plaintiff has therefore not shown that his conviction and confinement have been reversed, expunged, or otherwise invalidated. Hence, no § 1983 cause of action has yet accrued and these claims should be dismissed with prejudice until the Heck conditions are met. See Johnson v. McElveen, 101 F.3d 423, 424 (5th Cir. 1996) (stating dismissal should be with prejudice until Heck conditions are met).
Plaintiff also claims a theft conviction that was used to enhance the burglary conviction is "infirm." Plaintiff, however, has not shown this conviction has been reversed, expunged, or otherwise invalidated. ( See Magistrate Judge's Questionnaire, Answer No. 3). Hence, no § 1983 cause of action has yet accrued and this claim should be dismissed with prejudice until the Heck conditions are met. See Johnson v. McElveen, 101 F.3d 423, 424 (5th Cir. 1996) (stating dismissal should be with prejudice until Heck conditions are met).
2. Parole
Plaintiff argues the Parole Board has unlawfully extended his sentence and has refused to commute his sentence by denying him street time credit while he was on parole. Plaintiffs claim is cognizable only in the context of a habeas corpus action pursuant to 28 U.S.C. § 2254. See Wilson v. Foti, 832 F.2d 891, 892 (5th Cir. 1987) (finding that where a petitioner attacks the duration of his confinement, "the appropriate cause of action is a petition for habeas corpus, even though the facts of the complaint might otherwise be sufficient to state a claim under § 1983."); see also Carson v. Johnson, 112 F.3d 818, 820 (5th Cir. 1997) (stating a petition for writ of habeas corpus permits a petitioner to seek immediate or earlier release from custody, whereas a complaint pursuant to § 1983 provides the proper avenue to challenge unconstitutional conditions of confinement and prison procedures).
Further, a petitioner is not entitled to credit on his sentence for street time spent on parole. See Morris on v. Johnson, 106 F.3d 127, 129 n. 1 (5th Cir. 1997). Texas law expressly denies credit for street time to a person whose parole or mandatory supervision is revoked following his release from prison. See Tex. Gov't Code Ann. § 508.283(b) ("If a person's parole, mandatory supervision, or conditional pardon is revoked, the person may be required to serve the remaining portion of the sentence on which the person was released. The remaining portion is computed without credit for the time from the date of the person's release to the date of revocation."). Additionally, the Fifth Circuit holds that "time spent on parole does not operate to reduce the sentence of a parole violator returned to prison." See Starnes v. Connett, 464 F.2d 524, 524 (5th Cir. 1972); see also Cox v. State of Texas, 433 F.2d 982, 982 (5th Cir. 1970). Accordingly, Plaintiffs claims that his civil rights were violated when the Parole Board denied him street time and did not commute his sentence are frivolous and should be denied.
RECOMMENDATION
The Court recommends that (1) Plaintiffs claims that his convictions were unlawful should be dismissed with prejudice until the Heck conditions are met; and (2) Plaintiffs claims that the Parole Board unlawfully extended his sentence and refused to commute his sentence should be dismissed with prejudice as frivolous.