Opinion
No. 3:01-CV-1425-D.
June 27, 2003.
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 Institutional Division (TDCJ-ID). Respondent is Janie Cockrell, Director of TDCJ-ID.
C. Factual Background: On September 17, 1990, petitioner pled guilty to second degree robbery and unlawful possession of cocaine and was sentenced to concurrent twenty-five year sentences of imprisonment. (See Judgment in Cause No. F-9029814-JV, attached to Answer as p. 5 of Ex. B; Judgment in Cause No. F-9043052-HV, found at S.H. Tr. at 41-42.) He was released on parole on September 2, 1992. (See Certificate of Parole, attached to Answer as pp. 7-8 of Ex. B.) On December 3, 1993, petitioner was arrested in Dallas County pursuant to a lawful arrest warrant. ( See Warrant and Officer's Return, attached to Answer as pp. 1-2 of Ex. C.) The State revoked his parole on March 8, 1994, for a failure to report to his parole officer. (See Waiver Processing Sheet, attached to Answer as p. 4 of Ex. C.)
"S.H. Tr." refers to the state habeas record attached to Ex Parte Russell, No. 49,030-01, slip op. at 1 (Tex.Crim.App. Apr. 18, 2001).
On February 28, 2001, petitioner filed a state writ raising claims related to his parole revocation, parole denials, and denials of release on mandatory supervision. See S.H. Tr. at 3-11, 31. The Texas Court of Criminal Appeals denied that writ on April 18, 2001. See Ex Parte Russell, No. 49,030-01, slip op. at 1 (Tex.Crim.App. Apr. 18, 2001). On June 13, 2001, it also denied a state writ that specifically challenged petitioner's robbery conviction. See Ex Parte Russell, No. 49,030-02, slip op. at 1 (Tex.Crim.App. June 13, 2001) and state habeas records attached thereto.
In July 2001, petitioner filed the instant federal petition for writ of habeas corpus and a supporting memorandum to challenge his parole revocation hearing that occurred in 1993. (See Pet. Writ Habeas Corpus (Pet.) at 1-2; Mem. in Supp.) On January 21, 2003, respondent filed her answer with brief in support. (See Answer at 1.) In February 2003, petitioner filed a "Motion in Opposition, with an Affidavit and Brief, In Support." (See Mot. in Opp'n, hereinafter referred to as Reply).
D. Substantive Claims: Petitioner asserts the following claims for habeas relief:
1. Cruel and unusual punishment;
2. Violations of the ex post facto clause:
a. Addition of street time to his sentence;
b. Three set-offs received from the parole board;
c. Change of the Texas sentencing guidelines
3. Denial of due process:
a. Denial of release on parole;
b. Denial of release on mandatory supervision;
c. Parole Board procedures
4. Denial of equal protection:
a. Denial of release on parole;
b. Denial of release on mandatory supervision;
c. Denial of a parole hearing and setting off release date;
d. Unconstitutionality of 1987 amendments to mandatory supervision law;
5. Double jeopardy;
6. Unconstitutional slavery and involuntary servitude; and
7. Denial of flat time credit.
(Answer at 3-4 (citing the Pet.; Mem. in Supp.; and Answers to Magistrate Judge's Questionnaire (MJQ)).)
The Court cites to the Answer, rather than the Petition, its supporting memorandum, and the MJQ, because the Answer more succinctly states the claims and because petitioner, in his reply brief, voices no objection to the characterization of his claims and addresses them in the same order.
E. Procedural Issues: Respondent contends that petitioner has not sufficiently exhausted his state remedies with respect to his claims regarding the 1987 amendments to the mandatory supervision law, denial of flat time credit, and change of the Texas sentencing guidelines in violation of the ex post facto clause. (Answer at 4-5, 12-15.) However, she does not seek dismissal for the failure to exhaust, but rather on the related ground of procedural bar. ( Id.) She also seeks dismissal of certain claims as time-barred under 28 U.S.C. § 2244(d). ( Id. at 9-12.) Despite the procedural bases for dismissing these claims, respondent addresses each claim on the merits except for the denial of flat time credit.
II. APPLICABLE LAW
On April 24, 1996, Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA or the Act), Pub.L. 104-132, 110 Stat. 1217. Title I of the Act applies to all federal petitions for habeas corpus filed on or after its effective date, which is the date of its enactment. Lindh v. Murphy, 521 U.S. 320,326 (1997). Because petitioner filed the instant petition in July 2001, after the effective date of the AEDPA, the Act applies to his petition.
Title I of the AEDPA substantially changed the way federal courts handle habeas corpus actions. Under 28 U.S.C. § 2254(d), as amended by the AEDPA, a state prisoner may not obtain relief
with respect to any claim that was adjudicated on the merits in State court proceedings unless the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; or
(2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the State court proceeding.
"In the context of federal habeas proceedings, a resolution (or adjudication) on the merits is a term of art that refers to whether a court's disposition of the case was substantive, as opposed to procedural." Miller v. Johnson, 200 F.3d 274, 281 (5th Cir. 2000). In this case, the denial of petitioner's state writ constitutes an adjudication on the merits. See Ex parte Thomas, 953 S.W.2d 286, 288-89 (Tex.Crim.App. 1997) (holding that a denial, rather than a dismissal, signifies an adjudication on the merits). The AEDPA standards enumerated in 28 U.S.C. § 2254(d) thus apply.
Subsection (1) of § 2254(d) concerns pure questions of law as well as mixed questions of law and fact. Martin v. Cain, 246 F.3d 471, 475 (5th Cir.), cert. denied, 534 U.S. 885 (2001). A decision is contrary to clearly established Federal law, within the meaning of § 2254(d)(1), "if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a question of law or if the state court decides a case differently than [the] Court has on a set of materially indistinguishable facts." Williams v. Taylor, 529 U.S. 362, 412-13 (2000).
With respect to the "unreasonable application" standard, Williams instructs that a writ must issue "if the state court identifies the correct governing legal principle from [the] Court's decisions but unreasonably applies that principle to the facts of the prisoner's case." 529 U.S. at 413; see also, Penry v. Johnson, 532 U.S. 782, 792 (2001). Likewise under Williams, a state court unreasonably applies Supreme Court precedent if it "unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to a new context where it should apply." 529 U.S. at 407. "[A] federal habeas court making the `unreasonable application' inquiry should ask whether the state court's application of clearly established federal law was objectively unreasonable." Id. at 409; see also, Penry, 532 U.S. at 793.
Subsection (2) of § 2254(d) concerns questions of fact. Moore v. Johnson, 225 F.3d 495, 501 (5th Cir. 2000). Under § 2254(d)(2), federal courts "give deference to the state court's findings unless they were `based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding.'" Chambers v. Johnson, 218 F.3d 360, 363 (5th Cir. 2000). The resolution of factual issues by the state court is presumptively correct and will not be disturbed unless the state prisoner rebuts the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
To the extent petitioner raised his federal claims in his state writ, his claims have been adjudicated on the merits and these AEDPA standards apply. To the extent he failed to raise a particular claim in his state writ, such claim is barred from review by the procedural default doctrine. See Harris v. Reed, 489 U.S. 255, 262 (1989); Lowe v. Scott, 48 F.3d 873, 875 (5th Cir. 1995). Because petitioner has stated no claim that entitles him to relief, the Court need not definitively decide whether a particular claim is procedurally barred.
Although respondent urges the Court to find Claims 1, 2, and 7 through 10, barred by statute of limitations, she also addresses the merits of each claim except Claim 9. The Court need not address the potential limitations bar except for Claim 9, because Claims 1, 2, 7, 8, and 10 have no merit.
III. ANALYSIS
A. Cruel and Unusual PunishmentIn his first ground of error, petitioner argues that revoking one's parole "on a technical violation" and thus requiring him to serve his twenty-five year sentence constitutes cruel and unusual punishment. (Pet. at 7.) Release on parole may be revoked, however, even for "technical" violations of conditions of release. See Villarreal v. United States Parole Comm'n, 985 F.2d 835, 839 (5th Cir. 1993). "Incarceration does not constitute cruel and unusual punishment." Gill v. Stella, 845 F. Supp. 94, 102 (E.D.N.Y. 1994). Rather, "[a]fter incarceration, only the unnecessary and wanton infliction of pain constitutes cruel and unusual punishment." Ingraham v. Wright, 430 U.S. 651,670 (1977) (citations and internal quotation marks omitted). Moreover, it is neither cruel nor unusual punishment to revoke one's parole and require "him to serve the balance of his sentence." United States ex rel. Lawson v. Cavell, 425 F.2d 1350,1352 (3d Cir. 1970). Further, resuming one's sentence upon revocation of parole without "credit for time spent on the revoked parole . . . does not offend the constitutional provisions relating to due process nor to cruel and unusual punishment." Weathers v. Willingham, 356 F.2d 421, 422 (10th Cir. 1966) (cited with approval in Cooks v. United States Bd. of Parole, 447 F.2d 63, 65 (5th Cir. 1971); Smith v. Blackwell, 367 F.2d 539, 541 (5th Cir. 1966)). This claim thus entitles petitioner to no habeas relief.
B. Ex Post Facto Clause
In his second ground of error, petitioner also alleges various violations of the Ex Post Facto Clause of the United States Constitution. (Pet. at 7; MJQ, Question No. 2.) Article I, § 10, of the United States Constitution prohibits a State from passing any "ex post facto Law." To constitute a violation of the Ex Post Facto Clause a change in law "must be both retroactive and to a prisoner's detriment." See Hallmark v. Johnson, 118 F.3d 1073, 1077-78 (5th Cir. 1997); see also, Lynce v. Mathis, 519 U.S. 433, 441 (1997) ("To fall within the ex post facto prohibition, a law must be retrospective — that is, `it must apply to events occurring before its enactment' — and it `must disadvantage the offender affected by it,' by altering the definition of criminal conduct or increasing the punishment for the crime.") The courts "must decide if the change disadvantaged the prisoners affected by it to a degree of ex post facto significance." Hallmark, 118 F.3d at 1078. In other words, the courts "must determine whether [the change] produces a sufficient risk of increasing the measure of punishment attached to the covered crimes." California Dep't of Corrections v. Morales, 514 U.S. 499, 509 (1995). In Beazell v. Ohio, 269 U.S. 167 (1925) the Supreme Court set forth the exclusive definition of ex post facto:
It is settled, by decisions of this Court so well known that their citation may be dispensed with, that any statute which punishes as a crime an act previously committed, which was innocent when done; which makes more burdensome the punishment for a crime, after its commission, or which deprives one charged with crime of any defense available according to law at the time when the act was committed, is prohibited as ex post facto.269 U.S. 169-70. This formulation is the most "faithful" to "the original understanding of the Ex Post Facto Clause [that] Legislatures may not retroactively alter the definition of crimes or increase the punishment for criminal acts." See Collins v. Youngblood, 497 U.S. 37, 42-43 (1990).
The critical inquiry is whether the new law "punish[es] as a crime an act previously committed, which was innocent when done; . . . make[s] more burdensome the punishment for a crime, after its commission; [or] deprive[s] one charged with crime of any defense available according to law at the time when the act was committed." Id. at 52. Thus, the retroactive application of new parole guidelines or a change in the manner in which parole authorities exercise their discretion does not violate the Ex Post Facto Clause. See Portley v. Grossman, 444 U.S. 1311, 1312-13 (1980) (relying upon Dobbert v. Florida, 432 U.S. 282, 293 (1977)); Simpson v. Ortiz, 995 F.2d 606, 610 (5th Cir. 1993) (recognizing that parole guidelines are not laws that can qualify as ex post facto); Sheary v. United States Parole Comm'n, 822 F.2d 556, 558 (5th Cir. 1987) (same).
Petitioner specifically alleges that the State added street time to his sentence; the parole board set off his parole release date on three separate occasions; and Texas changed the sentencing guidelines between the date of his offense and the date of his conviction. Petitioner's claims are conclusory and without support. See Koch v. Puckett, 907 F.2d 524, 530 (5th Cir. 1990) (noting that conclusory allegations are insufficient to obtain habeas relief). They also lack merit. Petitioner has shown no change in law that resulted in his conviction for an act that would otherwise have been legal in the absence of the change. He has shown no change that made his crimes aggravated or that provide for greater punishment. He has shown no change that deprived him of any available defense according to law at the time of his offenses. In short, he has shown no change in law that increased his punishment or altered the definition of criminal conduct for his crimes.
Rather, petitioner merely alleges that the State added street time to his sentence, set off his parole release dates, and changed the sentencing guidelines to his detriment. These allegations do not demonstrate an ex post facto violation. Case law is clear with respect to the street-time allegation. See Jackson v. Johnson, No. 3-01-CV-1553-D, 2001 WL 1478789, at *3 (N.D. Tex. Nov. 16, 2001) (adopting recommendation which notes that there is no ex post facto violation for denying credit for street time, because "Texas law has provided, at least since 1988, that a person is not entitled to credit for `street time' or `flat time' following revocation of his parole or supervised release"); see also, TEX. CODE CRIM. PROC. ANN. art. 42.18, § 14(a) (Vernon 1990) (providing that prisoners are not entitled to credit for time released on parole or mandatory supervision).
With respect to the alleged change in sentencing guidelines, petitioner has not shown that he received a greater punishment from such alleged change. In fact, petitioner was sentenced in accordance with the laws in effect at the time of his offenses. See TEX. PENAL CODE ANN. § 29.02(a) (Vernon 2003) (showing first amendment in 1993); TEX. HEALTH SAFETY CODE ANN. § 481.115 (Vernon 2003) (showing that statute was enacted in 1989 and amended in 1993). The relevant penal law did not change between petitioner's offense and conviction.
That the parole board has set off petitioner's parole release date, furthermore, likewise has resulted in no increased punishment. Serving a properly imposed sentence in accordance with the laws existing at the time of one's offenses does not violate the Ex Post Facto Clause. There is no constitutional right, furthermore, to early release on parole. See Orellana v. Kyle, 65 F.3d 29, 31 (5th Cir. 1995); Williams v. Briscoe, 641 F.2d 274, 277 (5th Cir. 1981).
For all of these reasons, petitioner's ex post facto clause claims fail. There have been no ex post facto violations under the facts of this case.
C. Due Process
1. Denial of Parole
Petitioner appears to allege that the State denied him due process by denying him release on parole after he served one-fourth of his sentence. (Mem. at 5; Reply at 4.) Under Texas law, an inmate can become eligible for release through parole before the completion of his sentence. See Madison v. Parker, 104 F.3d 765, 768 (5th Cir. 1997). Petitioner relies upon TEX. CODE CRIM. PROC. ANN. art. 42.18, § 8(b) for the proposition that he should have been released on parole from his sentences once he served one-fourth of his twenty-five year sentence. However, that statute merely provides for a discretionary release on parole once he has served one-fourth of his sentence, including good-time credits. "There is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence." Greenholtz v. Inmates of the Neb. Penal Correctional Complex, 442 U.S. 1, 7 (1979). It is entirely speculative, moreover, whether an inmate will actually obtain parole, inasmuch as there is no right to be released on parole. See Allison v. Kyle, 66 F.3d 71, 74 (5th Cir. 1995); Creel v. Keene, 928 F.2d 707, 712 (5th Cir. 1991). State prisoners in Texas simply "have no protected liberty interest in parole." Johnson v. Rodriguez, 110 F.3d 299, 308 (5th Cir. 1997). "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 States.'" Malchi v. Thaler, 211 F.3d 953, 957 (5th Cir. 2000) (quoting Orellana v. Kyle, 65 F.3d 29, 31 (5th Cir. 1995)). Petitioner is therefore entitled to no federal habeas relief on his claim that the State violated his due process rights by denying him release on parole under TEX. CODE CRIM. PROC. ANN. art. 42.18, § 8(b).
Under the law applicable to petitioner, he is "eligible for release on parole when [his] calendar time served plus good conduct time equals one-fourth of the maximum sentence imposed or 15 years, whichever is less." See TEX. CODE CRIM. PROC. ANN. art. 42.18, § 8(b) (Vernon 1990).
The offenses for which petitioner is serving his sentence of incarceration occurred in February 1990. ( See True Bills of Indictment, attached to Answer as pp. 1, 3 of Ex. B; Judgment in Cause No. F-9029814-JV, attached to Answer as p. 5 of Ex. B; Judgment in Cause No. F-9043052-HV, found at S.H. Tr. at 41-42.) Thus, the law in effect at that time controls his eligibility for parole.
2. Denial of Release on Mandatory Supervision
Petitioner is likewise entitled to no federal habeas relief on his claim that the State denied him mandatory release as provided by TEX. CODE CRIM. PROC. ANN. art. 42.18, § 8(c). (Mem. at 4.) That section provides that "a prisoner who is not on parole . . . shall be released to mandatory supervision" when his calender time plus his accrued good-conduct time equals the maximum term to which he was sentenced. For those covered by the statute, the mandatory supervision scheme in place in Texas prior to September 1, 1996 for earned good-time credits creates an expectation of early release. See Malchi, 211 F.3d at 957-58.
"Article 42.18, section 8(c) of the Texas Code of Criminal Procedure providing for release of certain prisoners to mandatory supervision [became] effective . . . September 1, 1985." Spelling v. State, 825 S.W.2d 533, 536 (Tex.App.-Fort Worth 1992, no pet.).
However, petitioner is serving a sentence for second degree robbery. ( See Judgment in Cause No. F-9029814-JV.) Section 8(c) (10) of TEX. CODE CRIM. PROC. ANN. art. 42.18 (Vernon 1990) states that "[a] prisoner may not be released to mandatory supervision if the prisoner is serving a sentence for . . . a second degree felony under Section 29.02, Penal Code (Robbery)." Petitioner is therefore not eligible for release on mandatory supervision. Consequently, he has stated no cognizable due process violation relating to being denied release on mandatory supervision. See Malchi, 211 F.3d at 957-58; Scott v. Cockrell, No. 3:02-CV-1777-D, 2002 WL 31421932, at *2 (N.D. Tex. Oct. 21, 2002) (adopting recommendation that notes a sentence for robbery makes petitioner ineligible for mandatory supervision). Because no one has wrongfully denied petitioner release on mandatory supervision, his due process claims relating to denial of such release have no merit.
3. Parole Board Procedures
Petitioner also alleges that the Board of Pardons and Paroles has deprived him of due process by denying him a hearing and setting off his parole release date. (Pet. at 8.) If a state creates a liberty interest by statute, due process requires notice and a meaningful opportunity to be heard. See LaChance v. Erickson, 522 U.S. 262, 266 (1998). In the absence of a protected liberty interest, however, such claim cannot succeed. Because there is no federal constitutional right to early release on parole, see Orellana v. Kyle, 65 F.3d 29, 31 (5th Cir. 1995); Williams v. Briscoe, 641 F.2d 274, 277 (5th Cir. 198 1), petitioner cannot "state a claim for a Due Process violation based upon the [Parole] Board's procedures", see Johnson v. Rodriguez, 110 F.3d 299, 305 (5th Cir. 1997). This part of his due process claim also fails.
D. Equal Protection
Petitioner also alleges that he has been denied his right to equal protection under the law. (Mem. at 5-6.) The Equal Protection Clause of the Fourteenth Amendment commands that no State shall "deny to any person within its jurisdiction the equal protection of the laws," which is essentially a direction that all persons similarly situated should be treated alike. See Plyler v. Doe, 457 U.S. 202, 216 (1982); Piotrowski v. City of Houston, 237 F.3d 567, 578 n. 15 (5th Cir.) (holding that "[t]he equal protection clause requires that all persons similarly situated be treated alike"), cert. denied, 534 U.S. 820 (2001). "The Fourteenth Amendment's promise that no person shall be denied the equal protection of the laws must coexist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons." Romer v. Evans, 517 U.S. 620, 631 (1996). Thus, "a party who wishes to make out an Equal Protection claim must prove "the existence of purposeful discrimination" motivating the state action which caused the complained-of injury." Johnson v. Rodriguez, 110 F.3d 299, 306 (5th Cir. 1997).
1. Denial of Release on Parole
Petitioner alleges that he has been denied release on parole in violation of his right to equal protection under the law. (Mem. at 5-6.) Petitioner has not shown that the State denied him release on parole because of purposeful discrimination or any impermissible motive, such as race. He has alleged nothing to indicate that he has been treated differently from those situated similarly — the crux of an equal protection claim. See City of Cleburne v. Clebume Living Ctr., 473 U.S. 432, 439 (1985).
2. Denial of Release on Mandatory Supervision
Petitioner further alleges that he has been denied release on mandatory supervision in violation of his right to equal protection under the law, and that it violates his rights to equal protection to deny him release on mandatory supervision when other prisoners are allowed such release. (Mem. at 5-6.) Petitioner has been denied release on mandatory supervision because he is serving a sentence for robbery under TEX. PENAL CODE ANN. § 29.02(a). All prisoners convicted under § 29.02 in 1990, regardless of race or other impermissible factor, are ineligible for release on mandatory supervision. The State does not violate the tenants of equal protection by precluding release on mandatory supervision to prisoners who have committed certain enumerated offenses. Making certain classes of prisoners ineligible for release on mandatory supervision based upon the nature of their underlying criminal offense does not offend the notion of equal protection. This portion of his equal protection claim fails.
3. Denial of a Parole Hearing and Setting Off Release Date
Petitioner alleges that the Board of Pardons and Paroles has violated his right to equal protection by denying him a hearing and setting off his parole release date. (Pet. at 8.) He has provided nothing that shows that the parole board denied him a hearing or set off his parole release date because of purposeful discrimination. He has alleged nothing to indicate that he has been treated differently from those situated similarly — the crux of an equal protection claim. See City of Clebume v. Clebume Living Ctr., 473 U.S. 432, 439 (1985). Nothing of record shows that petitioner was denied parole or a hearing for parole or received a set-off for any impermissible reason.
4. Unconstitutionality of 1987 Amendments to Mandatory Supervision Law
Petitioner claims that the 1987 amendments to the law of mandatory supervision are unconstitutional because they deny him equal protection under the law. (Id. at 5.) Because petitioner has shown no violation of his right to equal protection, this claim also fails. For all of these reasons, petitioner's claims of equal protection entitle him to no habeas relief.
E. Double Jeopardy
Petitioner asserts that the State is requiring him to "serve the same time twice" in violation of the Double Jeopardy Clause of the United States Constitution. (Mem. at 2.) He contends that he has "earned" good-time credits which are not being used to reduce his sentence. ( Id. at 7.) He argues that "earned" time equates to "served" time. ( Id. at 7, 9.) He further argues that because he has served over one-fourth of his sentence when one counts actual time served and good time earned, he "is now serving the same time again which by law is double jeopardy and illegal." ( Id. at 8.) He suggests that he is receiving "multiple punishments for the same offense." ( Id.)
"[T]he double jeopardy clause serves three interests, protecting against: (1) prosecution of the same offense after acquittal; (2) prosecution of the same offense after conviction; and (3) multiple punishments for the same offense." United States v. Berry, 977 F.2d 915, 918 (5th Cir. 1992). The arguments of petitioner implicate the third protected interest. Despite his arguments, however, petitioner has not received multiple punishments for the same offense. See Deaver v. Johnson, No. CIV. A. 4:00-CV-1024-Y, 2001 WL 611162, at *4 (N.D. Tex. May 30, 2001) (adopting recommendation that found no double jeopardy violation when petitioner's forfeited good-time credits were not re-instated). He has received one punishment for each of his offenses. That he is ineligible for release on mandatory supervision due to the nature of one of his offenses does not violate the double jeopardy clause. Furthermore, a denial of release on parole does not equate to a successive punishment. As has been previously stated, there is no constitutional right to early release on parole. The Fifth Circuit has declined to extend the protections of the double jeopardy clause to parole revocation. Morrison v. Johnson, 106 F.3d 127, 129 n. 1 (5th Cir. 1997) (per curiam). Such protections likewise do not extend to denials of release on mandatory supervision or parole. This claim thus entitles petitioner to no habeas relief.
F. Slavery or Involuntary Servitude
Petitioner argues that by ignoring his accumulated good-time credits and denying him release on mandatory supervision, respondent violates petitioner's right to be free from slavery and involuntary servitude. ( See Mem. at 6.) The Thirteenth Amendment of the United States Constitution provides that "[n] either slavery nor involuntary servitude, except as punishment for crime whereof the party shall have been duly convicted shall exist within the United States, or any place subject to their jurisdiction." The Fifth Circuit Court of Appeals has specifically held that "[t]he Constitution does not forbid an inmate's being required to work." Ali v. Johnson, 259 F.3d 317, 318 n. 2 (5th Cir. 2001). Consistent with the language of the Thirteenth Amendment, it held that there is no viable issue of peonage, slavery, or involuntary servitude, when a person has been "duly tried, convicted and sentenced in accordance with the law." Id. at 318 (quoting Draper v. Rhay, 315 F.2d 193, 197 (9th Cir. 1963)); see also, Mendoza v. Lynaugh, 989 F.2d 191, 194 n. 4 (5th Cir. 1993) (recognizing that "inmates can be required to work" and that a "work assignment alone does not rise to a constitutional violation").
In this instance, petitioner pled guilty and was duly convicted and sentenced in accordance with the law. He has provided nothing to indicate otherwise. Accordingly, this claim has no merit and should also be dismissed.
G. Denial of Flat Time
In his final claim, petitioner claims that respondent has denied him "flat-time credit for time spent in confinement following the execution of parole revocation warrants." (Answer to Question 2 of MJQ.) Respondent contends that this claim is barred by the statute of limitations. (Answer at 11.) For the reasons that follow, the claim is time-barred.
The AEDPA contains a one-year statute of limitations that applies to the instant case. See 28 U.S.C. § 2244(d)(1). The one-year period is calculated from the latest of either (A) the date on which the judgment of conviction became final; (B) the date on which an impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such State action; (C) the date on which the Supreme Court initially recognizes a new constitutional right and makes the right retroactively applicable to cases on collateral review; or (D) the date on which the facts supporting the claim became known or could have become known through the exercise of due diligence. See id.
Petitioner has alleged no state-created impediment under subparagraph (B) that prevented him from filing his federal petition. Nor does he base his petition on any new constitutional right under subparagraph (C). Due to the nature of his claim, furthermore, subparagraph (A) is immaterial. Thus, as § 2244(d)(1) relates to this case, the one-year statute of limitations is calculated from (D) the date on which petitioner knew or should have known with the exercise of due diligence the facts supporting his claim. It appears that petitioner knew the factual basis for the claim in December 1993 and was in fact making efforts to remedy the denial of flat-time credits at that time. (See Answer to Question 4 of MJQ.) Nevertheless, to the extent that petitioner somehow did not know the factual basis for this claim in December 1993 as stated in his Answer to Question 4 of MJQ, he undoubtedly should have known the factual basis through the exercise of due diligence by April 24, 1997 — the date the grace period discussed below expired.
Petitioner's conviction became final before the April 24, 1996 enactment of the AEDPA. He thus had one year following the effective date of the Act in which to file a federal petition for a writ of habeas corpus. Williams v. Cain, 217 F.3d 303,304 n. 1 (5th Cir. 2000). "[W] hen computing the one year time period applicable to petitions raising claims that would otherwise be time-barred as of . . . April 24, 1996, that date must be excluded from the computation and petitions filed on or before April 24, 1997 are timely." Flanagan v. Johnson, 154 F.3d 196, 202 (5th Cir. 1998). The one-year period of limitations does not apply prior to its effective date. Thus, no time may be counted against an inmate prior to April 24, 1996, the date the AEDPA was signed into law. Petitioner is entitled to the one-year grace period which would end, in the absence of tolling, on April 24, 1997.
A literal application of § 2244(d)(1) renders petitioner's July 2001 filing untimely, as it was presented to the Court well past the expiration of one-year period on April 24, 1997. The clear language of § 2 2244(d)(2) and a prior holding of this Court mandate that petitioner's time calculation be tolled during the period in which his state habeas application was pending before the Texas state courts. See Henderson v. Johnson, 1 F. Supp.2d 650, 652 (N.D. Tex. 1998) (holding that the filing of a state habeas application stops the one-year period until ruling on state application).
The AEDPA expressly and unequivocally provides that "[t]he time during which a properly filed application for State post-conviction or other collateral review with respect to the pertinent judgment or claim is pending shall not be counted toward any period of limitation under this subsection." 28 U.S.C. § 2244(d)(2) (emphasis added). When petitioner filed his first state petition in February 2001, the April 24, 1997 statutory limitations period and grace-period had already expired. Accordingly, the statutory tolling provision does not save the petitioner's federal petition. The filing falls outside the statutory period and should be deemed untimely. Nothing in the petition, furthermore, indicates that rare and exceptional circumstances warrant equitable tolling. See Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000) (recognizing that statute of limitations is subject to equitable tolling). Accordingly, this claim is time-barred.
IV. RECOMMENDATION
For the foregoing reasons, the undersigned Magistrate Judge RECOMMENDS that the Court DENY with prejudice the request for habeas corpus relief brought pursuant to 28 U.S.C. § 2254. Petitioner's denial of flat time credit claim is barred by the statute of limitations. The other claims lack merit.