Opinion
No. SA-05-CA-0249-RF.
June 7, 2005
ORDER ADOPTING REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
BEFORE THE COURT is the Memorandum and Recommendation of the United States Magistrate Judge, entered on December 21, 2004. (Docket No. 5). The Magistrate Judge recommends that Petitioner's Section 2254 application for a writ of habeas corpus be dismissed. Plaintiff objected on April 27, 2005. (Docket No. 4). After due consideration, the Court is of the opinion that the Magistrate Judge's Report and Recommendation should be ADOPTED IN ITS ENTIRETY.
BACKGROUND
Guy Morgan ("Petitioner"), a former inmate of the Texas Department of Criminal Justice — Correctional Institutions Division ("TDCJ-CID"), filed an application for writ of habeas corpus, pursuant to 28 U.S.C. § 2254, challenging the validity of his mandatory supervision. Petitioner contends that his time for good conduct, street time, and time-served combine to complete his sentence. He argues that he should not be considered as "on parole" because he refused to sign a conditional parole contract when he was released by TDCJ.
Petitioner pled guilty to two charges of burglary with intent to commit theft in Texas state court in 1994. On March 10, 1994, Petitioner was sentenced to serve 25 years in the TDCJ-CID. He was released from prison on mandatory supervision on December 20, 2002. On February 3, 2003, Petitioner filed a state habeas application under Article 11.07 of the Texas Code of Criminal Procedure, alleging that his sentence had been completed and that he should Defendant should not consider him to be on parole. The Texas Court of Criminal Appeals denied his application. The instant federal habeas action was filed on March 31, 2005. The Magistrate Judge issued his report and recommendation on April 11, 2005, and Petitioner filed objections on April 27, 2005 (Docket No. 4).
Cause Nos. 93-CR-878 and 93-CR-2434 in the 266th Judicial District of Bexar County, Texas.
Docket No. 1.
STANDARD OF REVIEW
The Court reviews de novo a Magistrate Judge's Memorandum and Recommendation if a party files specific objections within ten days of service. The Court need not consider objections that are frivolous, conclusive, or general in nature. If there are no specific objections to a Magistrate Judge's Memorandum and Recommendation, the District Court is to review for it for findings and conclusions that are either clearly erroneous or contrary to law. Petitioner objects to the Magistrate's findings and the Court reviews them de novo.
Battle v. United States Parole Comm'n, 834 F.2d 419, 421 (5th Cir. 1987).
United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir. 1989).
ANALYSIS
With this habeas action, Plaintiff challenges his continued mandatory supervision, arguing that he was denied full credit for "good time" and time spent on the street. Section 2254 will operate to relieve Petitioner of the continued supervision if he can demonstrate that it violates the Constitution, laws, or treaties of the United States. As the Magistrate Judge correctly notes, Petitioner's claim is based upon a denial of due process.To prove that he was denied due process and to obtain his desired relief, Petitioner must show that his liberty interests are implicated. If the application of Texas law shows that Petitioner's sentence has expired, then he has shown a liberty interest and that interest cannot be infringed by state action with due process. The Magistrate Judge found that no Texas statute supports Petitioner's claim that his 1994 sentences have been completed or that he is not required to comply with conditions of release while on mandatory supervision.
See Sandin v. Conner, 515 U.S. 472, 483-84 (1995).
The law governing parole and mandatory supervision that when Petitioner was sentenced in 1994 is an appropriate starting point. Texas Code of Criminal Procedure, Article 42.18, Section 2(2), defined "mandatory supervision" in the following manner:
the release of an eligible prisoner from the physical custody of the institutional division but not on parole, to serve the remainder of his sentence under the supervision and control of the pardons and paroles division. Mandatory supervision may not be construed as a commutation of sentence or any other form of executive clemency.
TEX. CODE CRIM. P., art. 42.18 § 2(2) (1994).
Section 8(c) stated that a prisoner who is not on parole "shall be released to mandatory supervision . . . when the calendar time he has served plus any accrued good conduct time equal the maximum term to which he was sentenced." The section further states that prisoners on mandatory supervision are considered in the legal custody of the state and are required to abide by conditions of supervision imposed by the parole panel. Finally, Section 8(c) states that prisoners released to mandatory supervision shall be considered to be released on parole.
Id. § 8(c).
Id.
Id. The applicable statutory sections, including Section 8, were replaced in 1997 by TEXAS GOVERNMENT CODE § 508.154 et seq.
The Texas statutes governing good conduct time are also relevant. Section 498.003(a) of the Texas provides that good conduct time "applies only to eligibility for parole or mandatory supervision as provided by Section 508.145 or 508.147 and does not otherwise affect an inmate's term." Thus, good conduct time cannot be considered when determining whether an inmate's term has expired. As the Magistrate Judge points out, even if Petitioner's nearly two and a half years of "street time" since being released from state custody in December 2002 were counted, Petitioner has not yet reached the end of his 25-year sentence, which began in 1994.
TEX. GOV'T CODE ANN. § 498.003(a). This section was in effect in 1994 when Petitioner was sentenced.
Based upon these provisions, the Magistrate Judge found that Texas law provides that an inmate such as Petitioner released on mandatory supervision is deemed to be on parole, in the legal custody of the state, and subject to the terms and conditions of parole. (Docket No. 2, at 4). The Magistrate Judge found that Petitioner's main argument in his habeas petition is premised entirely on his belief that Texas law cannot require him to comply with parole conditions because he did not sign a conditional parole contract at the time he was released. The Magistrate Judge concluded that Petitioner's argument — that inmates released to mandatory supervision must agree to comply with such conditions before they can be enforceable — has no support in Texas statutes or case law construing them.
In his initial brief, Petitioner cited Clifford v. Beto, in support of his argument. Petitioner argues that the 1972 Fifth Circuit decision established the principle that parole is a type of conditional pardon and that inmates must affirmatively accept the terms of their release in order for parole to exist. In Clifford, the issue for the court was the time at which inmates could be considered to be "on parole" in the Texas penal system. The Fifth Circuit held that an inmate must sign the "Certificate of Parole" before he could be considered to be released on parole. However, the Magistrate Judge found that Clifford is inapplicable to the situation before the Court.
464 F.2d 1191 (5th Cir. 1972).
Id. at 1195.
Under the old Article 42.18(g) — currently codified in the Texas Government Code, Section 508.154(c) — an inmate to be released on parole must be given a contract stating in clear language the conditions and rules of parole. Under both versions of the statute, inmates must sign the parole contract and the signature is a precondition to release on parole. However, as the Magistrate Judge notes, an inmate eligible for release on mandatory supervision is merely furnished a written statement describing clearly the conditions and rules of mandatory supervision. There is no requirement under Texas law — either as it is now codified or as it was in place in 1994 when Petitioner was convicted — providing that inmates must sign a parole contract to be released to mandatory supervision. As a result, Petitioner was not required to sign any contract prior to being released and his release is nonetheless subject to the terms, conditions, and any special requirements provided, regardless of whether he signed a contract prior to being released to mandatory supervision.
TEX. GOV'T CODE ANN. § 508.154(c) (Vernon 1997).
Godaire v. Cockrell, 2001 WL 1408387, at *2 esp. n. 8 (N.D. Tex. 2001). The Petitioner in Godaire argued that his release was "governed by an invalid contract, because he had refused to sign the contract and was thus never subject to its terms;" the district court found that the claim was without merit and dismissed his habeas action. Id. ("This claim is frivolous. In Texas, only inmates released from incarceration on parole are required as a precondition of release to accept, sign, and execute a certificate of parole. See TEX. GOV'T CODE § 508.154."). See also White v. Cockrell, 2003 WL 21212625 (N.D. Tex. 2003).
Based upon his similar analysis, the Magistrate Judge found that the fact that Petitioner failed to sign a parole agreement, agreeing to comply with conditions of release while on mandatory supervision, is irrelevant. Petitioner objects to the Magistrate Judge's report, arguing again that the statute in effect — Section 508.154(c) — does require the inmate sign a contract prior to being bound by terms and conditions of release. Indeed, Petitioner raises no new arguments in his half-page of objections and explicitly directs the Court back to his original application and reiterates his claims set forth therein.
Under the statutes and cases discussed herein, Petitioner must comply with the terms and conditions of his supervised release or face revocation of this release and return to state custody. The Court concludes that Petitioner's arguments for relief are without merit and that he has shown no violation of his liberty interests or constitutional right to due process. Accordingly, the Court finds that it must deny the instant petition for writ of habeas corpus for this reason.
CONCLUSION
The Court finds that the Magistrate Judge's report and recommendation correctly found that Petitioner's arguments in support of his petition under 28 U.S.C. § 2254 are without merit. Accordingly, the Report and Recommendation should be ADOPTED IN ITS ENTIRETY.
It is further ORDERED that Petitioner's application for a writ of habeas corpus, filed pursuant to 28 U.S.C. § 2254, be DISMISSED.
FINAL JUDGMENT
On this day the Court entered an order dismissing Petitioner's Application for a Writ of Habeas Corpus, filed pursuant to 28 U.S.C. § 2254 The Court now enters its Final Judgment in accordance with Rule 58 of the Federal Rules of Civil Procedure.It is ORDERED that Movant's Motion to Vacate, Set Aside, or Correct Sentence Pursuant to 28 U.S.C. § 2255 be DISMISSED WITH PREJUDICE.
It is ORDERED that each party bear its own costs.
It is ORDERED that all pending motions be DENIED AS MOOT.