Opinion
CIVIL ACTION NO. 4:02-CV-556-Y
November 1, 2002
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER
This cause of action was referred to the United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b), as implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusions, and Recommendation of the United States Magistrate Judge are as follows:
I. FINDINGS AND CONCLUSIONS A. NATURE OF THE CASE
This is a petition for writ of habeas corpus by a state prisoner under 28 U.S.C. § 2254.
B. PARTIES
Petitioner Raymond Duane Spring, #502588, is in custody of the Texas Department of Criminal Justice, Institutional Division (TDCJ).
Respondent Janie Cockrell is the Director of the TDCJ.
C. FACTUAL AND PROCEDURAL HISTORY
In September 1988, Spring was convicted of possession of methamphetamine and sentenced as an habitual offender to life imprisonment. (2 Habeas R. at 13.) He was released on parole in March 1994. (Resp't Answer at Exh. B.) Thereafter, his parole was revoked on June 3, 2001, and his accrued good time credits were forfeited. (Pet. at 5.) Spring has filed two state applications for writ of habeas corpus challenging TDCJ's failure to restore his good time credits, both of which were denied without written order by the Texas Court of Criminal Appeals. Ex parte Spring, Nos. 23,285-01 23,285-02, at cover (Tex.Crim.App. March 13, 2002 and July 31, 2002) (not designated for publication). Spring filed this federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Fort Worth Division, on June 20, 2002. Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998) (providing pro se habeas petition filed when petition is delivered to prison authorities for mailing).
Apparently, Spring is also confined as a result of two other 1988 convictions in state court for unauthorized use of a motor vehicle and aggravated assault of a police officer. (Resp't Answer at Exh. A.)
D. Issues
In five grounds, Spring argues (1) that the Texas Board of Criminal Justice (TBCJ) divested him of a constitutionally protected property and liberty interest in violation of his due process rights by directing TDCJ to cease restoration of good conduct credits and to stop releasing parole violators after 90 days, without a finding that prison overcrowding had decreased, (2) that he has a vested property right to restoration of good conduct time that was refused by TDCJ in violation of his due process rights, (3) that the TBCJ failed to comply with the notice provisions of the open meetings act, or other rules, when it changed the policy regarding restoration of good time credits and re-release, (4) that the state courts did not "seriously consider" his state writ applications or allow him a hearing to make findings of fact and conclusions of law, and (5) that the policy change regarding restoration of good time credits violated the ex post facto clause.
E. EXHAUSTION
As a preliminary matter, Cockrell contends that Spring's fourth ground has not been exhausted and that it is procedurally barred. (Resp't Answer at 4.) See 28 U.S.C. § 2254(b)(1); Fisher v. Texas, 169 F.3d 295, 302 (5th Cir. 1999). In his fourth ground, Spring claims that the state courts did not "seriously consider" and adjudicate the merits of his claims and that he was not given an opportunity to present his claims or "to make findings of fact and conclusions of law." (Pet. at 10.)
The court notes, however, that when the Texas Court of Criminal Appeals denies relief in a state habeas corpus application without written order, as in this case, it is an adjudication on the merits, which is entitled to a presumption of correctness in this federal habeas proceeding. Ex parte Torres, 943 S.W.2d 469, 472 (Tex.Crim.App. 1997). Moreover, a long line of cases from our circuit dictates that infirmities in state habeas proceedings do not constitute grounds for relief in federal court. See Rudd v. Johnson, 256 F.3d 317, 319-20 (5th Cir.), cert. denied, 122 S.Ct. 477 (2001); Trevino v. Johnson, 168 F.3d 173, 180 (5th Cir.), cert. denied, 527 U.S. 1056 (1999); Hallmark v. Johnson, 118 F.3d 1073, 1080 (5th Cir.), cert. denied, 522 U.S. 1033 (1997); Nichols v. Scott, 69 F.3d 1255, 1275 (5th Cir. 1995), cert. denied, 518 U.S. 1022 (1996); Duff-Smith v. Collins, 973 F.2d 1175, 1182 (5th Cir. 1992), cert. denied, 507 U.S. 1056 (1993); Millard v. Lynaugh, 810 F.2d 1403, 1410 (5th Cir.), cert. denied, 484 U.S. 838 (1987); see also Vail v. Procunier, 747 F.2d 277, 277 (5th Cir. 1984). That is because an attack on the state habeas proceeding is an attack on a proceeding collateral to the detention and not the detention itself. See Rudd, 256 F.3d at 320; Nichols, 69 F.3d at 1275. Accordingly, notwithstanding the exhaustion requirement, Spring's challenge to the state courts' acts or omissions during the state proceedings is merely an attack on infirmities in the state habeas proceedings and is foreclosed by our circuit precedent.
F. DISCUSSION
As to the remainder of Spring's claims, prior to April 1, 1995, pursuant to Senate Bill 1167, former article 6181-1, § 4 of the Texas Revised Civil Statutes, and former § 498.004(b) of the Texas Government Code, the Director of TDCJ could, in his or her discretion, restore forfeited good time credits on a revocation that did not involve a new criminal conviction after the prisoner had served at least three months of good behavior. (Resp't Answer at 7.) The parties allege that effective April 1, 1995, the TBCJ altered TDCJ's policy by eliminating the discretion of the Director to restore good time credits forfeited upon revocation of parole. (Pet. at 7-12.) See former TEX. GOV'T CODE ANN. § 498.005. Apparently, this policy was later codified in the current version of § 498.004(b) of the Texas Government Code. TEX. GOV'T CODE ANN. § 498.004(b) (Vernon 1998). Spring argues that Senate Bill 1167 and the former statutory provisions created a property and liberty interest in the restoration of good conduct time and re-release until prison overcrowding was shown to have decreased, and, thus, the TBCJ's 1995 directive violates his constitutional rights under the due process and ex post facto clauses.
Senate Bill 1167, which was codified as former TEX. REV. CIV. STAT. ANN. art. 6181-1, § 4, provided:
Good conduct time applies only to eligibility for parole or mandatory supervision as provided in Section 15, Article 42.12, Code of Criminal Procedure, 1965, as amended, and shall not otherwise affect the inmate's term. Good conduct time is a privilege and not a right. . . . 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. . . .
Act of May 25, 1985, 69th Leg., R.S., ch. 835, § 1, 1985 Tex. Gen. Laws 6196, 6196-97.
At the time Spring was convicted, former article 6181-1, § 4 provided, in relevant part:
Good conduct time applies only to eligibility for parole or mandatory supervision as provided in Section 8, Article 42.18, Code of Criminal Procedure, and shall not affect the inmate's term. Good conduct time is a privilege and not a right. . . . 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. . . . At least annually, the Texas Board of Corrections shall review the department's rules and policies relating to restoration of good conduct time that has been forfeited and in awarding additional good conduct time review whether the inmate overcrowding in the department has decreased and whether it is necessary for purposes of decreasing overcrowding to restore good conduct time or award additional good conduct time retroactively to inmates who have been reclassified. If the board determines that overcrowding has decreased and it is not necessary to restore good conduct time or award additional good conduct time, it shall direct the department to discontinue those practices.
Act of June 1, 1987, 70th Leg., R.S., ch. 1049, § 15, 1987 Tex. Gen. Laws 3517, 3523.
Former § 498.004(b) provided:
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 restore good conduct time forfeited on a revocation that does not involve a new criminal conviction after the inmate has served at least three months of good behavior in the institutional division, subject to policies established by the division.
Act of March 21, 1991, 72nd Leg., R.S., ch. 16, § 10.01, 1991 Tex. Gen. Laws 244, 298.
Former § 498.005 provided:
At least annually, the TBCJ shall review the institutional division's rules relating to restoration of good conduct time that has been forfeited, the manner in which inmates are reclassified, and the mariner in which additional good conduct time is awarded retroactively to inmates who have been reclassified. The TBCJ shall consider in its review whether the inmate overcrowding in the institutional division has decreased and whether it is necessary for purposes of decreasing overcrowding to classify inmates according to Section 498.002, to restore good conduct time under Section 498.004, or to award additional good conduct time retroactively to inmates who have been reclassified. If the TBCJ determines that the overcrowding has decreased and it is not necessary to restore good conduct time or award additional good conduct time, it shall direct the institutional division to discontinue those practices.Id. at 298.
Spring relies on Bohannan v. Texas Bd. Of Criminal Justice, 942 S.W.2d 113 (Tex.App.-Austin 1997, writ denied), for the proposition that a vested property right was created by former § 498.004(b) allowing discretionary restoration of good time credits and that the TBCJ exceeded its authority by ceasing the practice without a finding that prison overcrowding had decreased. However, because we are not bound by a state court's interpretation of the federal Constitution, we make our own determination of whether Spring had a protected property or liberty interest in the reinstatement of his good time credits after revocation of parole. See Thompson v. Cockrell, 263 F.3d 423, 429 (5th Cir. 2001).
First, the court notes that the TBCJ has express authority under state law to govern TDCJ, which includes the Director's policies regarding restoration of forfeited good time credits. See TEX. GOV'T CODE ANN. § 492.001 (Vernon 1998). Second, as a matter of federal due process, Texas inmates have no constitutionally protected right to restoration of any forfeited time credits following revocation of parole or to a sentence reduction based on forfeited credits. Wolff v. McDonnell, 418 U.S. 539, 557 (1974); Hallmark, 118 F.3d at 1079-80; Newby v. Johnson, 81 F.3d 567, 569 (5th Cir. 1996); Hamill v. Wright, 870 F.2d 1032, 1036-37 (5th Cir. 1989); Starnes v. Cornett, 464 F.2d 524, 524 (5th Cir. 1972), cert. denied, 409 U.S. 987 (1972); Reynolds v. Johnson, No. 4:00-CV-391-Y, 2001 WL 180165, at *3 (N.D. Tex. Feb. 20, 2001), adopted, 2001 WL 215945 (N.D. Tex. Mar. 2, 2001). A state prisoner does not have a federal constitutional right to obtain release prior to the expiration of his sentence. See Greenholtz v. Inmates of Neb. Penal Correctional Complex, 442 U.S. 1, 7 (1979). Time credit is not a vested right, but rather a privilege established by the Texas legislature that may be forfeited. See Ex parte Henderson, 645 S.W.2d 469, 472 (Tex.Crim.App. 1983).
Similarly, as a matter of state law, good conduct time is a privilege and not a right. See TEX. GOV'T CODE ANN. § 498.003(a) (Vernon Supp. 2002). Even at the time of Spring's conviction, Texas law did not mandate the restoration of good time credits forfeited upon revocation of parole. See former TEX. REV. CIV. STAT. ANN. art. 6181-1. Thus, there is no constitutionally protected property or liberty interest in the restoration of Spring's forfeited good time credits under the facts set forth in the case at bar.
Third, with regard to Spring's ex post facto claim, the appropriate inquiry is whether the TBCJ's directive effectively increased Spring's punishment. See Hallmark, 118 F.3d at 1078. Guided by the decision in Hallmark, the court finds that TDCJ's refusal to reinstate Spring's good time credits did not prolong the punishment imposed for his crime. Texas law expressly provides that good time applies only to the eligibility for parole and does not affect the length of an inmate's sentence. TEX. GOV'T CODE ANN. § 498.003(a). Because TDCJ's refusal to restore Spring's forfeited good time credits does not increase Spring's life sentence, he is not entitled to habeas relief on his ex post facto claim. See Portley v. Grossman, 444 U.S. 1311, 1312-13 (1980); Hallmark, 118 F.3d at 1079.
Finally, the court finds that Spring was not entitled to notice prior to the TBCJ's 1995 directive. Based on former § 498.004(b), the Director had the power to decline to restore, at his or her discretion, good time credits forfeited upon revocation of parole, so there was indeed fair warning of the possibility of forfeiture of good time credits and the consequences thereof. See, e.g., Hallmark, 118 F.3d at 1079.
In sum, the TBCJ had authority under state law to change TDCJ policy regarding restoration of good time credits following revocation of parole, and its actions did not violate Spring's constitutional rights. See id. at 1077-81; Newby, 81 F.3d at 569. Absent a claim that Spring 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 (1984).
II. RECOMMENDATION
Spring's petition for writ of habeas corpus should be denied.
III. NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSIONS AND RECOMMENDATION AND CONSEQUENCES OF FAILURE TO OBJECT
Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation within ten (10) days after the party has been served with a copy of this document. The court is extending the deadline within which to file, not merely place in the mail, specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation until November 21, 2002. Failure to file specific written objections within the specified time shall bar a de novo determination by the district court of any finding of fact or conclusion of law and shall bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any unobjected-to proposed factual findings and legal conclusions accepted by the district court. See Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc op. on reh'g); Carter v. Collins, 918 F.2d 1198, 1203 (5th Cir. 1990).
IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until November 21, 2002, to serve and file, not merely place in the mail, written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation. It is further ORDERED that if objections are filed and the opposing party chooses to file a response, a response shall be filed within seven (7) days of the filing date of the objections.
It is further ORDERED that the above-styled and numbered action, previously referred to the United States Magistrate Judge for findings, conclusions, and recommendation, is returned to the docket of the United States District Judge.