Opinion
Civil Action No. 3:00-CV-2343-P
February 6, 2002
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 Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. For the following reasons, the petition for writ of habeas corpus should be DENIED.
I. Background Nature of the Case: This is a petition for habeas corpus relief filed by a state inmate pursuant to 28 U.S.C. § 2254.
The background facts come from the Petition for Writ of Habeas Corpus, filed October 25, 2000; from Petitioner's Answers to the Magistrate Judge's Questionnaire, filed January 25, 2001; Respondent's Answer With Brief in Support, filed March 8, 2001; and from the State Court Records. The background facts are undisputed unless otherwise indicated.
Parties: Petitioner is Jerry Leos (Leos), an inmate currently incarcerated in the Robertson Unit of the Texas Department of Criminal Justice, Institutional Division (TDCJ-ID). Respondent is Janie Cockrell (Cockrell), Director of TDCJ-ID.
Procedural History: On October 15, 1980, Leos pleaded guilty to two charges of first-degree murder, for which he was subsequently sentenced to concurrent thirty-nine year sentences. (S.H. Tr. at 33-34.) On March 23, 1993, Leos signed a certificate of parole and was released, subject to the conditions contained in the certificate of parole. (S.H. Tr. at 36-37.) However, on February 9, 1998, a pre-revocation warrant was issued, and, on February 13, 1998, the warrant was executed. (S.H. Tr. at 38-39.) Finally, on April 28, 1998, the Texas Board of Pardons and Paroles revoked Leos' parole for violating the conditions of his release. (S.H. Tr. at 40-41.)
State habeas records are designated as "S.H. Tr."
On January 18, 2000, Leos filed two state applications for writs of habeas corpus, alleging the same six deficiencies as he alleges in the instant petition. (S.H. Tr. at 2-14.) On April 19, 2000, the Texas Court of Criminal Appeals denied both applications without a written order. (S.H. Tr. at cover.) Substantive Issues: Leos contends that (1) TDCJ-ID is denying him previously-accrued good time credit after revocation of his parole in violation of the due process and ex post facto clauses; (2) TDCJ-ID is punishing him twice for the same offense in violation of the double jeopardy clause; (3) TDCJ-ID is extending his in-custody time beyond the court-ordered sentence; (4) TDCJ-ID is causing him to serve his sentence in installments; (5) TDCJ-ID is enforcing a contract of adhesion, which includes an unconscionable contract clause; and (6) TDCJ-ID is violating the separation of powers doctrine.
Exhaustion: Cockrell does not contend that Leos has failed to exhaust his state court remedies.
Evidentiary Hearing: Upon review of the pleadings filed herein and the proceedings held in state court as reflected in the state-court records, an evidentiary hearing appears unnecessary.
II. Grounds
A. Good Time Credit
First, Leos claims that TDCJ-ID is denying him previously-accrued good time credit after his parole revocation in violation of the due process and ex post facto clauses. (Pet. at 1-2.) More specifically, Leos claims that TDCJ-ID is retroactively applying an unspecified 1995 statute to him. ( Id . ) This challenge is without merit.
At the time of Leos' sentencing, Texas law provided that
Good conduct time applies only to eligibility for parole or mandatory supervision and shall not otherwise affect the inmate's term. Good conduct time is a privilege and not a right. . . . Upon revocation of parole or mandatory supervision, the inmate loses all good conduct time previously accrued, but upon return to the department may accrue new good conduct time for subsequent time served in the department.Tex. Civ. Stat. art. 6181-1 § 4 (West Supp. 1979). By the time of Leos' parole in 1993, the statute had been amended to allow the director the discretion to "restore good conduct time forfeited on a revocation that does not involve a new criminal conviction." Tex. Gov't Code Ann. § 498.004 (Vernon 1992 1993). However, in 1995 the statute was amended to revoke that discretion: "The department may not restore good conduct time forfeited on a revocation." Tex. Gov't Code Ann. § 498.004 (Vernon 1995). The Court construes Leos' challenge as attacking this 1995 statutory amendment.
In order to establish a due process violation, Leos must show that he has been deprived of a protected right to which he has a "legitimate claim of entitlement." Greenholtz v. Inmates of Neb. Penal Correctional Complex , 442 U.S. 1, 7 (1979). However, the United States "Constitution does not guarantee good time credit for satisfactory behavior while in prison." Madison v. Lt. R. Parker , 104 F.3d 765, 768 (5th Cir. 1997) (citing Wolff v. McDonnell , 418 U.S. 539, 557 (1974)). Therefore, if Leos is to establish a "legitimate claim of entitlement," such entitlement must come from the state. However, under Texas law, "good-time credit is not a vested right, but rather is a privilege which may be forfeited . . . by violating the guidelines of a conditional release program." Ex parte Henderson , 645 S.W.2d 469, 472 (Tex.Crim.App. 1983) (en banc). Therefore, Leos cannot establish that he had a "legitimate claim of entitlement" to his previously-accrued good time credit after the revocation of his parole.
In order to establish an ex post facto violation, Leos must show that the 1995 statutory amendment either: "(1) punishes as a crime an act previously committed which was innocent when done; (2) changes the punishment and inflicts greater punishment than the law attached to a criminal offense when committed; or (3) deprives a person charged with a crime of any defense available at the time the act was committed." Turner v. Johnson , 46 F. Supp.2d 655, 671 (S.D. Tex. Mar. 15, 1999) (citing Collins v. Youngblood , 497 U.S. 37, 52 (1990)). However, the 1995 statutory amendment merely rescinded TDCJ-ID's discretion to restore good time credit after parole revocation, but this discretion did not statutorily exist at the time of Leos' criminal acts in 1980. Furthermore, Leos' interest in this discretion was not vested, nor was the lack of discretion likely to affect his "actual term of confinement." Hallmark v. Johnson , 118 F.3d 1073, 1077-79 (5th Cir. 1997) (finding no ex post facto violation on a similar revocation of discretion to restore good time credit because the revocation caused only a "speculative," "attenuated," and "conjectural" risk of "affecting a prisoner's actual term of confinement"). Finally, at all times since Leos' criminal acts, "good conduct time applies only to eligibility for parole and release on mandatory supervision, but does not affect the length of an inmate's sentence." Ex parte Montgomery , 894 S.W.2d 324, 328 (Tex.Crim.App. 1995). See Tex. Gov't Code Ann. § 498.003 (Vernon 2001); Tex. Civ. St. art. 6181-1 § 4 (West Supp. 1979).
As such, Leos' good time credit challenge fails.
B. Double Jeopardy
Second, Leos claims that TDCJ-ID is punishing him twice for the same offense in violation of the double jeopardy clause because TDCJ-ID, after revoking his parole, extended his scheduled release date by an amount equal to the time he spent on parole. (Pet. at 2.) This challenge is without merit.
The Fifth Circuit has declined to extend the protections of the double jeopardy clause to parole revocation. Morrison v. Johnson , 106 F.3d 127, 129 n. 1 (5th Cir. 1997) (per curiam) (citing Cortinas v. United States Parole Comm'n , 938 F.2d 43, 46-47 (5th Cir. 1991) and United States v. Whitney , 649 F.2d 296, 298 (5th Cir. Unit B 1981)). As such, Leos' double jeopardy challenge fails.
C. Extension of In-Custody Time
Third, Leos claims that TDCJ-ID is extending his in-custody calendar time beyond the court-ordered sentence by recalculating his scheduled release date after his parole revocation. (Pet. at 2.) In other words, Leos claims that TDCJ-ID is denying him credit towards completion of his sentence for the time he spent on parole, i.e., street time credit. This challenge is without merit.
At all times relevant to Leos' challenge, Texas law provided that upon a person's parole revocation, "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 the time from the date of his release to the date of revocation." Tex. Code Crim. Pro. art. 42.18 § 14(a) (Vernon 1992 1993); Tex. Code Crim. Pro. art. 42.12 § 22 (Vernon 1979). See also Tex. Gov't Code Ann. § 508.283(c) (Vernon 1998). In Morrison, the Fifth Circuit upheld the constitutionality of the Texas statute after noting that it had previously rejected a challenge to a similar federal statute. Morrison , 106 F.3d at 129 n. 1 (citing Cortinas , 938 F.2d at 46). Later, in Thompson v. Cockrell, the Fifth Circuit asserted that the federal and Texas statutes which allow for the denial of street time credit after revocation of parole "do not raise constitutional concerns." Thompson v. Cockrell , 263 F.3d 423, 426 (5th Cir. 2001) (citing Morrison , 106 F.3d at 129 n. 1). As such, Leos' street time credit challenge fails.
D. Service of Sentence in Installments
Fourth, Leos claims that TDCJ-ID, by interrupting his in-custody calendar time, is causing him to serve his sentence in installments in violation of Texas law. (Pet. at 2.) This challenge is without merit.
Texas law states that "[a] sentence must be continuous and a prisoner or inmate cannot be required to serve his sentence in installments." Ex parte Millard , 48 S.W.3d 190, 192 (Tex.Crim.App. 2001) (en banc). However, parole does not interrupt the continuity of a person's sentence. Ex parte Kuester , 21 S.W.3d 264, 272 (Tex.Crim.App. 2000) (en banc); Ex parte Dunn , 976 S.W.2d 208, 210 (Tex.Crim.App. 1998) (en banc). Moreover, denial of credit for time spent on parole after parole revocation does not interrupt the continuity of a person's sentence. Ex parte Kuester , 21 S.W.3d at 273 (citing Tex. Gov't Code § 508.283 (c)). As stated in Ex parte Kuester, "[w]e note that denying . . . credit for the time . . . spent on parole does not mean the sentences were being served in installments. The statute provides for the loss of credit for the parole period following revocation of parole." Id . As such, Leos' sentence installment challenge fails.
E. Unconscionable Contract Clause
Fifth, Leos claims that TDCJ-ID is enforcing the Certificate of Parole, which constitutes a contract of adhesion and includes an unconscionable contract clause. (Pet. at 3.) Specifically, Leos challenges the sentence, "I further understand and do agree that in the event of revocation of this release on Parole, time spent on Parole willnot be credited to my sentence." ( Id. See also S.H. Tr. at 37.) This challenge is without merit.
Habeas petitioners may challenge "(1) the state court conviction or sentence underlying their confinement, or (2) a single allegedly defective hearing affecting their eligibility for, or entitlement to, accelerated release." Spina v. Aaron , 821 F.2d 1126, 1128 (5th Cir. 1987). Therefore, Leos' challenge to the validity of the Certificate of Parole on principles of contract law is inappropriate under Spina. In addition, the Court notes that a constitutionally-sound Texas statute — not the Certificate of Parole — provided the authority for TDCJ-ID's decision to deny Leos credit for the time he served on parole. Therefore, this challenge is also futile inasmuch as a successful contract challenge would not affect the constitutionality of the governing statute. See Newman v. Johnson , No. 3:01-CV-0151-P, 2001 WL 880528, at *2 (N.D. Tex. July 27, 2001) (findings and recommendation adopted by Solis, J.) (rejecting a similar contractual challenge to a parole certificate because there is "no constitutional right to early release on parole").
F. Separation of Powers
Sixth, Leos claims, without elaboration, that TDCJ-ID is violating the separation of powers doctrine by enforcing a statute which caused grounds one through five to occur. (Pet. at 3.) This challenge is insufficient to support a claim for relief.
"[M]ere conclusory allegations do not raise a constitutional issue in a habeas proceeding." Hamilton v. McCotter , 772 F.2d 171, 182 (5th Cir. 1985) (citing Ross v. Estelle , 694 F.2d 1008, 1012 (5th Cir. 1983)). Leos' separation of powers challenge is conclusory and wholly unsubstantiated by the record. He does not provide any facts to support his allegation, nor does he allege that TDCJ-ID has done anything other than perform its constitutionally-delegated functions. As such, Leos' separation of powers challenge is insufficient to support a claim for relief.
III. Recommendation
For the foregoing reasons, the undersigned Magistrate Judge RECOMMENDS that the petition for writ of habeas corpus, brought pursuant to 28 U.S.C. § 2254, be DENIED with prejudice.