Opinion
No. 3:03-CV-3072-K
April 2, 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 in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge follow:
I. BACKGROUND
A. Nature of the Case; This is a petition for habeas corpus relief filed by a state inmate pursuant to 28 U.S.C. § 2254.
B. Parties: Petitioner is currently incarcerated in the Texas Department of Criminal Justice Correctional Institutions Division (TDCJ-CID). Respondent is Douglas Dretke, Director of TDCJ-CID.
C. Procedural Background; On September 10, 1992, petitioner was convicted of possession of a controlled substance, and was sentenced to fifteen years imprisonment in Cause No. W92-67469-R(A). (Pet. for Writ Habeas Corpus (Pet.) at 2.) Petitioner was release on parole, but his parole was revoked by the State on September 10, 2002. ( Id. at 5.) Petitioner challenges that parole revocation in the instant federal petition. ( Id. at 2, 5.) D. Substantive Claims: In his sole claim, petitioner asserts that the State unconstitutionally denied him "street time." (Id. at 7.)
E. Exhaustion; Petitioner's federal petition shows no efforts to resolve the sentence-credit issue in the state courts. It thus appears that petitioner has not exhausted his state and administrative remedies. A petitioner must fully exhaust state remedies before seeking federal habeas relief, unless "there is an absence of available State corrective process; or . . . "circumstances exist that render such process ineffective to protect the rights of the applicant." 28 U.S.C. § 2254(b)(1). However, it is also well-settled that the courts can deny the federal petition on the merits, notwithstanding a failure to exhaust available state remedies. See 28 U.S.C. § 2254(b)(2). Moreover, a "dismissal of a nonmeritorious petition under Rule 4 [of the Rules Governing Section 2254 Cases in the United States District Courts] pretermits consideration of the issue of nonexhaustion." Granberry v. Greer, 481 U.S. 129, 135 (1987). When "it is perfectly clear that the applicant does not raise even a colorable federal claim, the interests of the petitioner, the warden, the state attorney general, the state courts, and the federal courts will all be well served" by the district court's summary dismissal of the petition under Rule 4. Id. at 135 n. 7.
As discussed below, the Court should summarily dismiss the instant federal petition on the merits rather than dismiss it without prejudice for lack of exhaustion.
F. Evidentiary Hearing: Upon review of the pleadings filed herein, an evidentiary hearing appears unnecessary.
II. RELIEF UNDER § 2254
Petitioner alleges a constitutional violation resulting from a denial of credit for his street time while on parole. Section 2254(a) of Title 28 of the United States Code directs the courts to "entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States."
The district court has the power under Rule 4 to examine and dismiss frivolous habeas petitions prior to any answer or other pleading by the state. This power is rooted in "the duty of the court to screen out frivolous applications and eliminate the burden that would be placed on the respondent by ordering an unnecessary answer."Kiser v. Johnson, 163 F.3d 326, 328 (5th Cir. 1999) (quoting Rule 4 Advisory committee Notes). Such examination may occur even before deciding whether the petitioner has exhausted his state remedies. See Granberry v. Greer, 481 U.S. 129, 135 n. 7 (1987).
"Federal habeas relief cannot be had `absent the allegation by a plaintiff that he or she has been deprived of some right secured to him or her by the United States Constitution or the laws of the United States.'" Malchi v. Thaler, 211 F.3d 953, 957 (5th Cir. 2000) (quoting Orellana v. Kyle, 65 F.3d 29, 31 (5th Cir. 1995)). There is no federal constitutional right to early release on parole. See Orellana, 65 F.3d at 31; Williams v. Briscoe, 641 F.2d 274, 277 (5th Cir. 1981). This includes credit for "street time" while out on parole. See Morrison v. Johnson, 106 F.3d 127, 129 n. 1 (5th Cir. 1997); Starnes v. Cornett, 464 F.2d 524, 524 (5th Cir. 1972).
Nevertheless, a state may not apply the parole laws retroactively. See Weaver v. Graham, 450 U.S. 24, 29 (1981). The critical inquiry is whether the law changes the legal consequences of an act completed before the effective date of the legislation. Id. at 30; Story v. Collins, 920 F.2d 1247, 1251 (5th Cir. 1991). In this instance, petitioner claims that he is entitled to credit on his sentence for the time he was out on parole. The relevant statute in effect at the time of his offenses do not, however, support such entitlement. The relevant version of Article 42.18 of the Texas Code of Criminal Procedure provides, in relevant part, that "[w]hen a person's parole . . . is revoked, 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. PROC. ANN. art. 42.18, § 14(a) (Vernon Supp. 1991) (emphasis added). There is no evidence that the parole laws have been applied to deprive petitioner of any right under state or federal law. Accordingly, there is no constitutional violation.
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." Because petitioner asserts no constitutional violation, the Court should summarily dismiss this action under Rule 4.
III. RECOMMENDATION
For the foregoing reasons, the undersigned Magistrate Judge RECOMMENDS that, pursuant to Rule 4 of the Rules Governing Section 2254 Cases in the United States District Courts, the District Court summarily DISMISS petitioner's application for habeas corpus relief, brought pursuant to 28 U.S.C. § 2254.