Opinion
Civil Action No. 1:00-CV-015-C
June 12, 2002
ORDER
On this day the Court considered Ricky Little's ("Little") Petition for Writ of Habeas Corpus filed pursuant to 28 U.S.C. § 2254. Respondent Cockrell has filed an Answer with Brief in Support and copies of Little's state habeas applications. Little has filed a response and objections to the answer.
The record shows that Respondent has (or had) custody of Little pursuant to the following judgments and sentences:
(1) Cause No. 13,053 in the 8th Judicial District Court of Hopkins County, Texas; pled guilty to the felony offense of theft of property and was sentenced to 10 years probated for 7 years on October 1 1990; probation was revoked and Little was sentenced to 9 years incarceration in TDCJ-ID on June 11, 1992;
(2) Cause No. 13, 054 in the 8th Judicial District Court of Hopkins County, Texas; pled guilty to the felony offense of theft of property and was sentenced to 10 years probated for 7 years on October 1 1990; probation was revoked and Little was sentenced to 9 years incarceration in TDCJ-ID on June 11, 1992;
(3) Cause No. 22, 914 in the 23rd Judicial District Court of Brazoria County, Texas; pled guilty to the felony offense of unauthorized use of motor vehicle and sentenced to 7 years' incarceration on September 30, 1991;
(4) Cause No. 13, 692 in the 8th Judicial District Court of Hopkins County, Texas; pled guilty to the felony offense of escape and sentenced on March 30, 1993, to 10 years' incarceration to run consecutive to the sentence in Cause No. 13, 054;
(5) Cause No. 7798 in the 259th Judicial District Court of Jones County, Texas; pled guilty to possession of a prohibited substance in a correctional facility and sentenced on March 17, 1997, to 5 years' incarceration to run consecutive to the sentence in Cause No. 13, 054; and
(6) Cause No. 8244 in the 25 9th Judicial District Court of Jones County, Texas; pled guilty to riot and assault in a correctional facility and sentenced on August 31, 1999, to 10 years' incarceration to run consecutive to the sentence in Cause No. 13, 692.
The Court understands Little to complain that TDCJ-ID erroneously denied him release to mandatory supervision in Cause Nos. 22, 914, 13, 053, and 13, 054 under Article 42.18 § 8(c) of the Texas Code of Criminal Procedure; and when he was finally granted parole on these sentences on January 1, 1998, he had served three years more than he was required to serve before beginning his sentence in Cause No. 13, 692. He also alleges that Respondent has retroactively applied § 508.150 of the Texas Government Code to his sentences resulting in an unconstitutional extension of his term of incarceration and the Texas Parole Board's policy regarding consecutive sentences is unconstitutional.
In his Amended Petition, Little mistakenly argues that his sentence in Cause No. 13,692 was ordered to run consecutive to his sentence in Cause No. 22, 914, but the state court records clearly indicate that the sentence in Cause No. 13, 692 was ordered to run consecutive to the sentence in Cause No. 13,054. He also erroneously contends that he was sentenced to 9 years' incarceration in Cause No. 22,914 in his Amended Petition. In his response and objections to the answer, Little corrects this information.
Little has previously filed the following three state habeas applications challenging the time being credited to his sentences by the Texas Department of Criminal Justice, Institutional Division ("TDCJ-ID"):
(1) Application No. 33, 278-01 was filed in the trial court on January 17, 1997, and denied without written order on the findings of the trial court without a hearing by the Texas Court of Criminal Appeals on March 26, 1997;
(2) Application No. 33, 278-02 was filed in the trial court on September 13, 1999, and denied without written order by the Texas Court of Criminal Appeals on November 17, 1999; and
(3) Application No. 3 3, 278-03 was filed in the trial court on November 3, 1999, and denied without written order by the Texas Court of Criminal Appeals on January 10, 2001.
Neither the trial courts nor the Texas Court of Criminal Appeals conducted hearings, made findings of fact or conclusions of law, or entered written orders addressing the merits of Little's time-credit complaints. It is, therefore, not clear from the state court records whether Little's claims were adjudicated on the merits in the state courts and thus subject to review under 28 U.S.C. § 2254 (d)(1). Nevertheless, this Court has thoroughly reviewed Little's pleadings, Respondent's Answer, and the state habeas records, and finds that Little has failed to demonstrate that he is "in custody in violation of the Constitution or laws or treaties of the United States." 28 U.S.C. § 2254 (a). See Allison v. Kyle, 66 F.3d 71, 73 (5th Cir. 1995) (holding that a state prisoner must demonstrate that "he has been deprived of some right secured to him . . . by the United States Constitution or the laws of the United States" before he can obtain federal habeas relief).
Section 501.0081(a) of the Texas Government Code became effective on September 1, 1999, and provides that TDCJ "shall develop a system that allows resolution of a complaint by an inmate who alleges that time credited on the inmate's sentence is in error and does not accurately reflect the amount of time-served credit to which the inmate is entitled." The statutory notes accompanying § 501.0081 state that the section is not applicable to any claims for credit made prior to January 1, 2000. See Ex parte Stokes, 15 S.W.3d 532, 533 (Tex.Crim.App. 2000) ("All persons seeking time credit relief in an application filed pursuant to Art. 11.07, § 3, filed in the district clerk's office on or after January 1, 2000, must show that a written decision has been obtained [from the office of time credit resolution for the Texas Department of Criminal Justice] or that he is within 180 days of release according to current department records, or must allege that he sought resolution of his credit complaint more than 180 days before the application was filed."). The Texas Department of Criminal Justice issued an Administrative Directive on June 9, 2000, that told inmates incarcerated in the TDCJ-ID how to challenge their time credits through the administrative procedures. Little filed his original federal petition on January 20, 2000, after § 501.0081 became effective, but before TDCJ established procedures for inmates to challenge their time credits through TDCJ administrative proceedings; therefore, he could not have sought relief through the TDCJ administrative procedures.
Little first argues that he was denied release on mandatory supervision in Cause No. 22, 914 because of his subsequent conviction in Cause No. 13, 692. "Prisoners may become eligible for release under Texas law on parole or under a mandatory supervised release program." Malchi v. Thaler, 211 F.3d 953, 957 (5th Cir. 2000). "Because it is entirely speculative whether a prisoner will be released on parole, the [United States Court of Appeals for the Fifth Circuit] has determined `that there is no constitutional expectancy of parole in Texas.'" Id. (quoting Madsion v. Parker, 104 F.3d 765, 768 (5th Cir. 1997)). See Mayabb v. Johnson, 168 F.3d 863, 871 (5th Cir. 1999) (holding that a Texas inmate has no constitutional right to parole). "The Fifth Circuit has also determined, however, that the Texas mandatory supervision scheme in place prior to September 1, 1996, created a constitutional expectancy of early release." Malchi v. Thaler, 211 F.3d at 957. Under this mandatory supervision scheme, a "prisoner who is not on parole shall be released to mandatory supervision when his calender time plus his accrued good-conduct time equals the maximum term to which he was sentenced." Id. at 957 n. 4 (citing Tex. Code Crim. P. Ann. art. 42.18(c) (Vernon 1996)). The Texas Court of Criminal Appeals has determined that "[f]or an inmate serving two or more concurrent sentences, . . . [the] `maximum term' must be the longest of the concurrent sentences, because this is the sentence that will keep him incarcerated for the longest amount of time." Ex parte Ruthart, 980 S.W.2d 469, 473 (Tex.Crim.App. 1998) (emphasis added). Because Little's sentences in Cause Nos. 22, 914, 13, 053, and 13, 054 were to run concurrently, the maximum term of his sentence would have been the nine-year sentences in Cause Nos. 13, 053 and 13, 054, and he would not have been eligible for release to mandatory supervision until he was eligible in Cause Nos. 13,053 and 13,054.
Little could not be released to mandatory supervision in Cause Nos. 13, 053 and 13, 054, however, because less than one year after he was sentenced in those cause numbers, he was sentenced in Cause No. 13, 692 to ten years' incarceration to run consecutive to his sentence in Cause No. 13, 054. Little was then sentenced to ten years' incarceration in Cause No. 8244 to run consecutive to his sentence in Cause No. 13, 692. Little argues that he should have been allowed to begin serving his consecutive sentence in Cause No. 13, 692 when he became eligible for release to mandatory supervision in his concurrent sentences.
When Little was sentenced in Cause Nos. 22,914, 13,053, 13,054, 13,692, and 7798, consecutive sentences in the State of Texas were governed by Section 8(d) of Article 42.18 of the Texas Code of Criminal Procedure (West 1990). Section 8(d) provided in part that
the judgment and sentence of a prisoner sentenced for a felony, other than the last sentence in a series of consecutive sentences, cease to operate:
(A) when the actual calendar time served by the prisoner equals the sentence imposed by the court; or
(B) on the date the board designates as the date on which the prisoner would have been eligible for release on parole if the prisoner had been sentenced to serve a single sentence.
(3) The board may not treat consecutive sentences as a single sentence for purposes of parole and may not release on parole a prisoner sentenced to serve consecutive felony sentences earlier than the date on which the prisoner becomes eligible for release on parole from the last sentence imposed on the prisoner.
(4) Calendar time served and good conduct time accrued by a prisoner that are used by the board in determining when a judgment and sentence cease to operate may not be used by the board:
(A) for the same purpose in determining that date in a subsequent sentence in the same series of consecutive sentences; or
(B) for determining the date on which a prisoner becomes eligible for release on parole from the last sentence in a series of consecutive sentences.
See Tex. Gov't Code § 508.150 (recodifying art. 42.18, § 8(d), effective September 1, 1997). Although Little does not make his argument clear, he is in fact contending that under § 8(d)(1), his sentences in Cause Nos. 22, 914, 13, 053, and 13, 054 should have "ceased to operate" on the date he became eligible for release to mandatory supervision in those causes so that he could begin to serve his consecutive sentence in Cause No. 13, 692. He argues that TDCJ miscalculated his sentence in Cause No. 13, 692 by not allowing him to begin serving his sentence in that cause number until he was "approved" for release to parole. He cites as authority for this argument a decision by the Texas Court of Criminal Appeals in Ex parte Ruthart, 980 S.W.2d 469 (Tex.Cr.App. 1998).
The Texas Court of Criminal Appeals clearly held in Ruthart that
an inmate serving consecutive sentences is not eligible for mandatory supervision on any but the last in his series of [consecutive] sentences. Further, such inmates may not begin serving their second, or any subsequent, sentence until their first, or any prior sentence ceases to operate as that phrase is defined in § 8(d). Eligibility for mandatory supervision does not cause a sentence to cease to operate under § 8(d). Mandatory supervision becomes available to such inmates only when they begin serving their final consecutive sentences.
Therefore, [such an inmate] may not be released to mandatory supervision, even though her calendar time plus her accrued good conduct time equal her first sentence.
Id. at 474. In light of this interpretation of state law by the Texas Court of Criminal Appeals, Little cannot show that he was entitled to begin serving his sentence in Cause No. 13, 692 when his calendar time plus his accrued good conduct time equaled his sentence in Cause No. 13, 054. To the extent, therefore, that his complaint requests this Court to review a simple interpretation of state law by the state courts, he has failed to state a claim cognizable on federal habeas review. Nobles v. Johnson, 127 F.3d 409, 418 n. 21 (5th Cir. 1997). See Travis v. Lockhart, 925 F.2d 1095, 1097 (8th Cir. 1991) (holding that the interpretation of state statutes regarding credit for time served "is a matter of state concern and not a proper function of a federal court under its habeas corpus jurisdiction").
Finally, Little argues that parole policy has been applied retroactively to unconstitutionally lengthen his sentence. The Court has carefully reviewed his petition and response to Respondent's answer and finds that this argument is conclusory and unsupported by any specific facts or evidence. See Koch v. Puckett, 907 F.2d 524, 530 (5th Cir. 1990) (quoting United States v. Woods, 870 F.2d 285, 288 n. 3 (5th Cir. 1989)) ("Although prose habeas petitions must be construed liberally, `mere conclusory allegations on a critical issue are insufficient to raise a constitutional issue.'").
For the reasons stated above, this Court finds that Petitioner Little has failed to demonstrate that he has been deprived of a right guaranteed by the law or Constitution of the United States, and his Petition should be DENIED and dismissed with prejudice.
All relief not expressly granted is denied and all pending motions are denied.