Opinion
3:03-CV-0767-M
February 9, 2004
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, this case has been referred to the United States Magistrate Judge. The findings, conclusions and recommendation of the Magistrate Judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS: Type of Case: This is a petition for habeas corpus relief brought by a state prisoner pursuant to 28 U.S.C. § 2254. Parties: Petitioner is currently confined at a pre-parole facility run by Correctional Corporation of America (CCA) in Mineral Wells, Texas. Respondent is the Director of the Texas Department of Criminal Justice, Correctional Institutional Division (TDCJ-CID).
Petitioner initially filed this action in the Southern District of Texas, Houston Division, which in turn transferred it to this District on April 9, 2003 due to the fact he was then confined at the Hutchins State Jail.
Statement of Case: On February 1, 1989, Petitioner was convicted of possession of marijuana in Jasper County, Texas. Punishment was assessed at ten years imprisonment, but the same was suspended and he was placed on probation. However, his probation was revoked and he was sentenced to TDCJ-CID. He was paroled in April 1992, but returned to custody on May 15, 1999, after which his parole was revoked on November 18, 1999. On May 16, 2001 he was again released on parole, which was revoked on or about April 11, 2002, which resulted in his present incarceration. As a consequence of the parole revocation, the Pardons and Parole Division of TDCJ refused to give him credit for the time that he served on parole — i.e., street-time or flat-time credits.
In the instant petition, Petitioner challenges the Director's refusal to give him credit for street-time served while on parole. In particular, he contends that TDCJ has increased his sentence without due process of law, and in violation of the Double Jeopardy Clause. He also contends that his parole certificate was signed under duress.
On October 30, 2002, Petitioner filed a state application for a writ of habeas corpus pursuant to TEX. CODE CRIM. PROC. ANN. art. 11.07, raising the above claims. Ex Parte McGraw, No. 54, 395-01. His application was denied without written order on February 5, 2003. On August 13, 2002, Petitioner filed a time credit dispute form with the TDCJ, and on December 17, 2002 he was informed that there was no error in his time credit calculations (Ans., Exh. C). McGraw filed the instant application for habeas corpus on February 20, 2003. Findings and Conclusions:
Petitioner's claims with respect to all but his last parole revocation on April 12, 2002 are barred by the statute of limitations. Under § 2254 a petitioner has one year from the time his parole is revoked to file a petition for habeas corpus, which is tolled during the filing of his state habeas application. Hester v. Johnson, No. 00-10408, 263 F.3d 162 (5th Cir. 2001) (unpublished table opinion); Broadnax v. Dretke, No. 03-00524, 2003 WL 22244681, *2-3 (N.D. Tex. 2003). McGraw's prior parole revocation occurred on January 18, 1999, therefore the statue of limitations has run for it and all prior parole revocations.
Broadnax suggests that Petitioner is entitled to tolling during the time credit resolution process. Broadnax, 2003 WL 22244681 at *3. However, even if tolled it is clear that the one year period expired on his 1999 revocation prior to the date he filed his time credit dispute.
McGraw is not entitled to credit for the "flat time" or "street time" that he spent while on parole between May 15, 2001 and April 11, 2002. See Morrison v. Johnson, 106 F.3d 127, 129 n. 1 (5th Cir. 1997). Presently, Texas law expressly denies credit for "street time" to a person whose parole or mandatory supervision is revoked following his release from prison. TEX GOV'T CODE § 508.283(c), which re-codified TEX. CODE CRIM. PROC. art. 42.18 § 14(a) provides as follows:
It appears that McGraw received credit for time spent in custody from December 15, 2001 until he was received by TDCJ-CID on May 8, 2002. See Respondent's Exh. C, letter dated October 7, 2003. See also Ex Parte Canada, 754 S.W.2d 660, 661-62 (Tex.Crim.App. 1988) (holding that defendant was entitled to flat time credit for period between execution of pre-revocation warrant and date on which parole was formally revoked, though statute denied credit for any time on parole).
For a person who on the date of issuance of a warrant or summons initiating the revocation process is subject to a sentence the remaining portion of which is greater than the amount of time from the date of the person's release to the date of issuance of the warrant or summons, the remaining portion is to be served without credit for the time from the date of the person's release to the date of revocation. TEX. GOV'T CODE ANN. § 508.283(c) (West 2003) (effective December 1, 2001) (emphasis added).
At the time of Petitioner's offense, conviction, and sentence, a virtually identical statutory provision governed such matters. See TEX. CODE GRIM. PROC. art. 42.12 § 22 (West 1987).
In addition, it is well established in the United States Court of Appeals for the Fifth Circuit "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.); see also Cox v. State of Texas, 433 F.2d 982, 982 (5th Cir. 1970); Betts v. Beta, 424 F.2d 1299, 1300 (5th Cir. 1970). Petitioner contends, however, that TDC J has increased his sentence without due process of law. This argument fails; Petitioner lacks a protected liberty interest in street-time credits. As noted above, Texas law specifically denies street-time credits following parole revocation.
Insofar as Petitioner relies on the Ex Post Facto Clause to argue that TDCJ has increased his sentence, his argument fares no better. The implementation of TEX. CODE CRIM. PROC. art. 42.18, or TEX. GOV'T CODE § 508.283(c) has not caused Petitioner to be prosecuted twice for the same offense or to endure "a punishment more severe than that assigned by law when the criminal act occurred. . . ." Hallmark v. Johnson, 118 F.3d 1073, 1077 (5th Cir. 1997) (citing Weaver v. Graham, 450 U.S. 24, 30, 101 S.Ct. 960, 964 (1981)). As noted above, Texas law has provided, at least since 1987, that a person is not entitled to credit for "street time" or "flat time" following revocation of parole or mandatory supervision.
Likewise any reliance on the Double Jeopardy Clause to argue that TDCJ-ID is punishing him twice for the same offense, by extending his scheduled release date by an amount equal to the time he spent on parole, is meritless. The Fifth Circuit has declined to extend the protections of the Double Jeopardy Clause to parole revocation. Morrison, 106 F.3d at 129 n. 1 (citing Cortinas, 938 F.2d at 46-47, and United States v. Whitney, 649 F.2d 296, 298 (5th Cir. Unit B 1981)).
Lastly, Petitioner asserts that the parole certificate is void because it relinquishes his right to street-time credits in the event of revocation of parole or mandatory supervision. He further asserts that he signed the parole certificate under duress. These claims are patently frivolous.
RECOMMENDATION:
Petitioner has failed to show that he is entitled to relief pursuant to 28 U.S.C. § 2254. It is therefore recommended that the petition be denied and dismissed.
The Clerk will mail a copy of this recommendation to Petitioner and to counsel for Respondent.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant to Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten-day period may bar a de novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.