Opinion
3:02-CV-521-M
May 7, 2002
AMENDED FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an order the Court in implementation thereof, 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 inmate pursuant to 28 U.S.C. § 2254.
Parties: Petitioner is presently confined at the Ellis I Unit of the Texas Department of Criminal Justice — Institutional Division (TDCJ-ID) in Huntsville, Texas. Respondent is the Director of the TDCJ-ID. The court has not issued process in this case.
Statement of Case: In July 1994, Petitioner pled guilty to attempted burglary of a building in Criminal District Court Number One of Dallas County, Texas, Cause No. F-943 7900-H. Punishment was assessed at twenty-five years imprisonment in the TDCJ-ID. (Petition at 2). On December 8, 1997, he was released on parole. Petitioner remained on parole for 168 days and was returned to TDCJ-ID custody on October 19, 1998. (ID., Memorandum at 3).
Subsequently Petitioner filed a state application for writ of habeas corpus pursuant to art. 11.07, Texas Code of Criminal Procedure, raising the claim at issue in this case. On February 6, 2002, the Texas Court of Criminal Appeals denied Petitioner's state application. (Petition at 3-4).
In one ground for relief, Petitioner alleges that TDCJ has unlawfully changed his mandatory supervision release date from May 19, 2004, to January 7, 2007.
Findings and Conclusions: 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."
Federal habeas relief cannot be had "absent the allegation by a [petitioner] 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 State." Orellana v. Kyle, 65 F.3d 29, 31 (5th Cir. 1995). The instant petition does not present any cognizable basis for habeas corpus relief.
Petitioner alleges that TDCJ has unlawfully changed his mandatory supervision release date from May 19, 2004, to January 7, 2007. He asserts that prior to his release on parole, he did not receive "any major [disciplinary] cases" and that he "did not lose any good-time or work time" credits. (Memorandum, attached to Petition, at 3).
Petitioner raised this ground in Pruitt v. Johnson, 3:00-CV-2461-R (N.D. Tex., Dallas Div.). On April 25, 2001, the District Court adopted the recommendation of the magistrate judge and dismissed the ground without prejudice because it did not relate to the conviction at issue in that case. (See Findings, Conclusions and Recommendation of the United States Magistrate Judge at 7). Since the State addressed this ground on the merits in No. 3:00-CV-2461-R, the court has reviewed the state court record provided in that case and the same is incorporated herein.
Petitioner was released on parole on December 8, 1997, and was returned to custody upon revocation of his parole with credit allowed from May 26, 1998. See Affidavit of 5.0. Woods, former chairman of the State Classification Committee, TDCJ-ID, Ex parte Pruitt, No. 30, 187-06 at 28, which is part of the state court record in No. 3:00-CV-2461-R. At the time of his readmission in TDCJ-ID, Petitioner was charged as out of custody for a period of 5-months and 18-days for an unsatisfactory term of parole. Id. He was also penalized for violating his parole by the permanent forfeiture of prior earned good-time credits. Id.
It is well established "that time spent on parole [i.e., street-time credit] does not operate to reduce the sentence of a parole violator returned to prison." Starnes v. Connett, 464 F.2d 524, 524 (5th Cir. 1972); see also Cox v. State of Texas, 433 F.2d 982, 982 (5th Cir. 1970); Betts v. Beto, 424 F.2d 1299, 1300 (5th Cir. 1970); Ex parte Canada, 754 S.W.2d 660, 661-62 (Tex.Crim.App. 1988). Further, it is well settled that a parolee's "street time" is forfeited when he is returned to prison upon the revocation of parole. See Morrison v. Johnson, 106 F.3d 127, 129 n. 1 (5th Cir. 1997). 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(c), Tex. Gov't Code, 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. Gov't Code Ann. § 508.283(c) (Vernon 1998) (effective September 1, 1997) (emphasis added). The parole statute in effect at the time Petitioner committed the offense of attempted burglary of a building in cause number F-94-37900-H, provided for virtually the same rule. See Tex. Code Crim. P. art. 42.18 § 14(a) (West 1994). Thus, to the extent Petitioner claims that the forfeiture of his street time following his parole revocation has unlawfully extended his sentence, his claim does not amount to a constitutional violation.
In addition to the forfeiture of street-time credits, Petitioner was also penalized for violating his parole by the permanent forfeiture of his prior earned good-time credits in accordance with Tex. Gov't Code § 498.004(b). That section reads as follows:
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 Ann. § 498.004(b) (Vernon 1998) (emphasis added).
At the time of Petitioner's conviction and sentence the Director had the discretion to restore forfeited good-time credits on a revocation that did not involve a new criminal conviction. See Tex. Gov't Code Ann. § 498.004(b) (West 1993). Since Petitioner's parole was revoked on the basis of two new charges, for which he was sentenced to twelve-year concurrent sentences, see Affidavit of S.0. Woods, supra., he cannot raise any meritorious constitutional challenge to the retroactive application of § 498.004(b).
Under Texas law good-time credit is not a vested right, but rather, a privilege that may be forfeited, either by violating disciplinary rules while in prison or by violating a condition of release on mandatory supervision or parole. See Ex parte Henderson, 645 S.W.2d 469, 472 (Tex.Crim.App. 1983) Also, Texas law does not give an inmate a constitutional right to restoration of good-time credits that have been forfeited upon revocation of mandatory supervision or parole. Ex parte Montgomery, 894 S.W.2d 324, 327 (Tex.Crim.App. 1995).
Under Texas law, "work" credits are treated as additional good-time credits. See Tex. Gov't Code § 498.003(d) (Vernon Supp. 1998).
Similarly, a federal inmate who has violated parole conditions has no constitutional right to the reinstatement of previously accrued good-time credits or to credit on his sentence for the time spent on parole. 18 U.S.C. § 4205; Frick v. Quinlin, 631 F.2d 37, 39 (5th Cir. 1980); Granville v. Hogan, 591 F.2d 323, 323 (5th Cir. 1979); Lambert v. Warden, U.S. Penitentiary, 591 F.2d 4, 8 (5th Cir. 1979); Lazard v. United States, 583 F.2d 176, 177 (5th Cir. 1978); Henning v. United States Bureau of Prisons, 472 F.2d 1221, 1222 (5th Cir. 1973).
Moreover, the Texas statutes that govern good time and forfeiture have, since 1977, specifically stated that good-conduct time applies only to eligibility for parole or mandatory supervision. See Tex. Rev. Civ. Stat. Ann. art. 6181-1, § 4 (West 1988), currently Tex. Gov't Code Ann. § 498.003(a) (Vernon 1998); see also Hallmark v. Johnson, 118 F.3d 1073, 1079 (5th Cir. 1997); Ex parte Montgomery, 894 S.W.2d 324, 328 (Tex.Crim.App. 1995). Once an inmate is paroled the period of parole is equal to the maximum term for which the person was sentenced less the calendar time actually served on the sentence. A person sentence is not reduced by good-time credits. See Tex. Code Crim. P. Ann. art. 42.18, § 8 (West 1997), currently Tex. Gov't Code Ann. § 508.142(c) (Vernon 1998) (effective Sept. 1, 1997). Therefore, insofar as Petitioner claims that the forfeiture of his good-time credits following his parole revocation has unlawfully extended his sentence, he has failed to prove that he has been denied a constitutionally protected liberty interest.
RECOMMENDATION:
For the foregoing reasons, it is recommended that the petition for a writ of habeas corpus be summarily dismissed. See Rule 4 of the Rules Governing Section 2254 Cases.
A copy of this recommendation will be transmitted to Petitioner.