Opinion
No. 2:04-CV-0131.
July 2, 2004
REPORT AND RECOMMENDATION TO DENY PETITION FOR A WRIT OF HABEAS CORPUS
Petitioner RICHARD A. ROSE has filed with this Court a pleading entitled " 28 U.S.C. 2241 Application for Writ of Habeas Corpus" seeking a deduction of time from his sentence for "work time," and/or an order from the Court directing respondent to cease forcing petitioner to work under threats of punishment alleging such forced work is a violation of the Eighth and Thirteenth Amendments to the United States Constitution. For the reasons hereinafter expressed, the Magistrate Judge is of the opinion petitioner's application for federal habeas corpus relief is without merit and should be DENIED.
I. PETITIONER'S ALLEGATIONS
Petitioner appears to argue:
1. He is entitled to a deduction of time off his sentence for each day he has been forced to work, and/or
2. His being forced to work violates the Eighth and Thirteenth Amendments to the United States Constitution.
II. MERITS OF PETITIONER'S ALLEGATIONS
Petitioner argues he is "entitled," under Article 43.10 of the Texas Code of Criminal Procedure, "to the deduction of ONE DAY off each sentence being concurrently served for `EACH DAY' the inmate works." Article 43.10 relates to the performance of manual labor by inmates in the county jail for the discharge of their sentences, fines, and court costs. Tex. Code Crim. Proc. Ann. art. 43.10 (Vernon Supp. 2003). The statute does not apply to petitioner as he was sentenced to a term of incarceration for a conviction in a state correctional institution. See Ali v. Johnson, 259 F.3d 317, 319 (5th Cir. 2001). Petitioner appears to argue article 43.10 should apply to him despite his being in a state penitentiary because article 42.10 of the Texas Code of Criminal Procedure, "sets forth that all sentences for felony crimes may be satisfied in the same manner in which misdemeanor crimes are satisfied . . ." Petitioner ignores the explicit language of article 42.10 and that it applies only to persons sentenced to only a term in a county jail, as opposed to a state correctional institution. Petitioner's first ground lacks an arguable basis in law and should be DENIED.Petitioner also contends his being forced to work violates the Eighth and Thirteenth Amendments to the United States Constitution. "[I]nmates sentenced to incarceration cannot state a viable Thirteenth Amendment claim if the prison system requires them to work." Ali v. Johnson, 259 F.3d at 317. Furthermore, any challenge to the requirement to work while in prison challenges the conditions of petitioner's confinement. A challenge to conditions of confinement must be presented as a civil rights complaint under 42 U.S.C. § 1983. Petitioner's second ground is not cognizable in a habeas corpus action.
This Court declines to sever such civil rights claim into a separate lawsuit, since doing so would obligate petitioner to pay the $150.00 filing fee. Petitioner is the one who must decide if he wishes to pursue this claim in a separate civil rights lawsuit, which requires submission of a complaint on the 42 U.S.C. § 1983 form as well as the payment of the filing fee either in full or in installments pursuant to the PLRA.
III. RECOMMENDATION
It is the RECOMMENDATION of the United States Magistrate Judge to the United States District Judge that the application for a writ of habeas corpus filed by petitioner RICHARD A. ROSE be DENIED.IV. INSTRUCTIONS FOR SERVICE and NOTICE OF RIGHT TO OBJECT
The United States District Clerk is directed to send a file-marked copy of this Report and Recommendation to petitioner by certified mail, return receipt requested.
Petitioner may object to the findings, conclusions, and recommendation set forth herein within fourteen (14) days after the "filed" date indicated on the first page of this Report and Recommendation. Any such objections shall be made in a written document entitled "Petitioner's Objections to the Report and Recommendation," and shall specifically identify the portions of the findings, conclusions, or recommendation to which objection is made, and set out fully the basis for each objection. Petitioner shall file the written objections with the United States District Clerk. Petitioner's failure to timely file written objections to the proposed findings, conclusions, and recommendation contained in this report shall bar him, except upon grounds of plain error, from attacking on appeal the unobjected to proposed factual findings and legal conclusions set forth in this report and accepted by the district court. Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).
IT IS SO RECOMMENDED.