Opinion
7:99-CV-251-R.
September 7, 2001.
MEMORANDUM OPINION AND ORDER
This is a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2241 et seq. by an inmate confined in the Dalhart Unit of the Texas Department of Criminal Justice in Dalhart, Texas. On August 18, 1989, pursuant to his plea of guilty, Newell was found guilty of burglary of a habitation and passing a forged check. Amended Petition ¶¶ 1-6. He was sentenced to seventeen years confinement. Id. at ¶ 3. He did not file a direct appeal. Id. at ¶¶ 8-9. On April 7, 1992, Newell was released on parole. Id. at ¶¶ 20.A. However, his parole was revoked on November 6, 1992 after a "technical violation" Id. On November 1, 1995, Newell was once again released on parole. Id. On April 1, 1997, his parole was revoked due to another "technical violation." Id. Newell now seeks restoration of his previously earned good-time credits. Id. He also seeks credit on his sentence for the time spent on parole release and claims that the Board of Pardons and Paroles has unlawfully added this time to his sentence. Id. Newell argues that the failure to credit his sentence with previously earned good-time and his street-time constitutes an ex post facto violation. Id. Newell has filed one state habeas application raising the issues presented in the case at bar without success. Id. at ¶ 11. Thus, it appears that he has fully exhausted his state habeas remedies.
"The Ex Post Facto Clause of the Constitution is violated if a law: (1) punishes as a crime an act previously committed which was innocent when done; (2) makes more burdensome the punishment for a crime after its commission; or (3) deprives one charged with a crime of any defense available according to the law at the time when the act was committed." United States v. Layne, 43 F.3d 127, 131 (5th Cir.) (citing Collins v. Youngblood, 497 U.S. 37, 52, 110 S.Ct. 2715, 2724 (1990)), cert. denied, 514, U.S. 1077, 115 S.Ct. 1722 (1995). Newell appears to argue that the State's refusal to re-instate the good-time earned prior to his parole release and its failure to credit his sentence for time served on parole makes his punishment more burdensome than it would have been prior to changes in parole laws. This is simply not the case.
The Texas Government Code provides in pertinent part:
On the revocation of parole or mandatory supervision of an inmate, the inmate forfeits all good conduct time previously accrued. On return to the institutional division the inmate may accrue new good conduct time for subsequent time served in the division. The department may not restore good conduct time forfeited on a revocation.
Tex. Gov't Code § 498.004(b) (West 1999) (emphasis added). The language of the Texas statute regarding restoration of good-time credit is mandatory. Thus, it is clear that Petitioner has no current right to the good-time credits previously forfeited. Assuming arguendo that the law applicable to Newell's claim is the law as it existed on the date of his conviction, August 18, 1989, his claim fares no better.
The statute applicable at that time of his conviction states in pertinent part:
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. The director may, however, restore good conduct time forfeited upon revocations not involving new criminal convictions after an inmate has served a reasonable period of good behavior in the department, to be no less than three months, subject to rules and policies promulgated by the department.
Tex. Rev. Civ. Stat, Ann. art. 6181- l, § 4 (West 1988) (emphasis added). The language of the earlier statute is permissive and, therefore, does not establish any right to the restoration of forfeited good-time credits. Thus, there is no constitutionally protected liberty interest in the restoration of the previously forfeited good-time credits under the facts set forth in the case at bar. See Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293, 2300 (1995) (holding that a prisoner's protected liberty interests are limited to freedom from restraint which imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life).
Newell's claim that he is entitled to credit on his sentence for the time spent on parole release is also without merit. See Morrison v. Johnson, 106 F.3d 127, 129 n. 1 (5th Cir. 1997). At the time of his conviction, Texas state law provided:
When a person's parole, mandatory supervision, or conditional pardon is revoked, that person maybe 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. Proc. Art. 42.18 § 15(a) (West 1988). Presently, Texas law expressly denies credit for "street-time" to a person whose parole or mandatory supervision is revoked following his release from prison. Section 508.283(b), Tex. Govt Code, which recently re-codified article 42.18 § 14(a), Tex. Code Crim. Proc., provides as follows:
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.
Tex. Govt Code Ann. § 508.283(b) (West 2001) (effective September 1, 1997) (emphasis added), see also Tex. Code Crim. Proc. Art. 42.12 § 23(b) (West 1999). Thus, it is clear that, under Texas law, Newell is not entitled to credit on his sentence for time spent on supervised release. See Campos v. Johnson, 958 F. Supp. 1180, 1192 (W.D. Tex. 1997). Similarly, there is no federal constitutional right to credit for "street-time" after revocation of supervised release. Campos, 958 F. Supp at 1191; see Newby v. Johnson, 81 F.3d 567, 569 (5th Cir. 1996) (holding that, absent an allegation of procedural defect in the revocation proceeding, a claim of entitlement to credit for time spent on parole does not raise a substantial federal question). Because the State's refusal to re-instate Newell's good-time credits and its refusal to award him credit for time spent on parole did not make his punishment more burdensome, he is not entitled to habeas relief on his ex post facto claim. See Hallmark v. Johnson, 118 F.3d 1073, 1079 (5th Cir.), cert. denied, 522 U.S. 1003, 118 S.Ct. 576 (1997) (holding that the loss of the opportunity for restoration of forfeited good-time credits does not constitute an ex post facto violation in Texas).
Newell claims that the Texas Board of Pardons and Paroles has unlawfully lengthened his sentence by requiring him to serve the sentence without credit for time spent on supervised release, thereby, requiring him to serve his sentence twice in violation of the Double Jeopardy Clause. Amended Petition ¶ 20 at p. 7.1. Newell's argument is fundamentally flawed because the Board did not sentence him to an additional term beyond that which was imposed by the trial judge. The Board merely stripped Newell of the time served on parole which reduced the time credited against his sentence to the actual prison time which he had served prior to his parole release. The Texas Board of Pardons and Paroles had such authority under state law and its actions did not violate Newell's constitutional rights.
Absent a claim that Petitioner has been deprived of some right secured to him by the United States Constitution or laws, habeas relief is not available. Thomas v. Torres, 717 F.2d 248, 249 (5th Cir. 1983), cert. denied, 465 U.S. 1010, 104 S.Ct. 1008 (1984). Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts, provides that "[i]f it plainly appears from the face of the petition and any exhibit annexed to it that the petitioner is not entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the petitioner to be notified."
IT IS THEREFORE ORDERED that the petition for writ of habeas corpus is DENIED. A copy of this order shall be transmitted to Petitioner.
Although it is not clear from the face of the pleadings, it appears that Newell's petition may be barred by the one-year statute of limitations applicable to federal habeas petitions. See 28 U.S.C. § 2244(d)(1). In the interest of judicial economy and in light of the fact that Newell has failed to present a cognizable claim for habeas relief, the Court has reached a disposition without the necessity of reproducing and delving into state court records to determine the statute of limitations issue.
SO ORDERED.