Opinion
No. 3-02-CV-2550-N
March 6, 2003
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Kenneth Wayne Story, appearing pro se, has filed an application for writ of habeas corpus pursuant to 28 U.S.C. § 2254. For the reasons stated herein, the application should be denied.
I.
Petitioner was released to mandatory supervision after serving part of a 10-year sentence for rape of a child and a 30-year sentence for aggravated sexual assault. While out on release, petitioner was charged with driving while intoxicated and failing to maintain a valid driver's license. His supervision was revoked based on those infractions and petitioner lost accumulated good time credits upon his return to prison. Petitioner challenged this action in two applications for state post-conviction relief. The applications were denied without written orders. Ex parte Story, No. 18,968-04 (Tex.Crim.App. Sept. 18, 2002); Ex parte Story, No. 18,968-05 (Tex.Crim.App. Oct. 2, 2002). Petitioner then filed this action in federal court.
II.
In three grounds for relief, petitioner argues that: (1) his good time credits were revoked without a hearing; (2) his parole contract was signed under duress and contains a stipulation prohibited by Texas law; and (3) he was denied counsel at his revocation hearing.
A.
Petitioner first contends that he was denied a hearing prior to the forfeiture of his good time credits. The relevant statute in effect at the time petitioner was sentenced provided for the automatic forfeiture of good time credits "[u]pon the revocation of parole or mandatory supervision of an inmate . . ." Acts 1985, 69th Leg. ch. 835, § 1, now TEX. GOV'T CODE ANN. § 498.004(b) (Vernon Supp. 2002). See also Ex parte Henderson, 645 S.W.2d 469, 472 (Tex.Crim.App. 1983) (good time credit is not a right, but a privilege which may be forfeited). This statute is mandatory. Under current law, prison officials have no authority to restore good time forfeited on a revocation. See TEX. GOV'T CODE ANN. § 498.004; Leos v. Cockrell, 2002 WL 318338 at *2 (N.D. Tex. Feb. 26, 2002). Therefore, petitioner had no right to a hearing.
The Fifth Circuit has held that the Texas mandatory supervision statute creates an expectancy of early release when the calendar time of eligible inmates, combined with good time credits, equals the sentence imposed. See Malchi v. Thaler, 211 F.3d 953, 957-58 (5th Cir. 2000), citing Wolff v. McDonnell, 418 U.S. 539, 557, 94 S.Ct. 2963, 2975, 41 L.Ed.2d 935 (1974). However, petitioner does not challenge the denial of his release to mandatory supervision. Instead, he seeks credit on his sentence for previously earned good time credits. No court has ever held that such a claim implicates a federal constitutional right.
B.
Petitioner also maintains that his parole contract was signed under duress and contains a stipulation prohibited by Texas law. The Certificate of Mandatory Supervision provides, in pertinent part:
This permit to be at liberty on mandatory supervision is granted upon condition that the said inmate shall observe and perform all the rules and conditions shown on the reverse of this certificate and any Special Conditions listed which are imposed shall be indicated below by listing their corresponding letter(s) . . .
BE IT FURTHER KNOWN THAT ANY VIOLATION OF SUCH RULES OR CONDITIONS SHALL BE SUFFICIENT CAUSE FOR REVOCATION OF THIS MANDATORY SUPERVISION, AND THAT ALL TIME SERVED ON MANDATORY SUPERVISION SHALL BE FORFEITED.
(Resp. App. at 10) (emphasis in original). According to petitioner, the stipulation providing for the automatic forfeiture of "street time" while out on supervision violates Texas law because it requires him to serve his sentence in installments. Petitioner also claims that the parole contract is unconscionable and was signed under duress because he "reluctantly signed away all commutation time and agreed to forfeit all street time upon parole revocation in exchange for his liberty" (St. Hab. Tr-I at 32).
The court initially observes that this claim, which is founded on principles of state contract law, is not cognizable in a federal habeas proceeding. See Leos, 2002 WL 318338 at *4, citing Spina v. Aaron, 821 F.2d 1126, 1128 (5th Cir. 1987). Moreover, the forfeiture of street time upon the revocation of parole or mandatory supervision is specifically authorized by Texas law. See TEX. GOV'T CODE ANN. § 508.156 (Vernon Supp. 2002) ("When the Governor revokes a person's parole . . . that person may be required to serve the portion remaining of the sentence on which he was released, such portion to be calculated without credit for the time from the date of his release to the date of revocation."). Petitioner is not entitled to relief on this ground.
C.
Finally, petitioner complains that he was denied counsel at his revocation hearing. Respondent counters that this claim is barred from review because it was never presented to the highest available state court and any attempt to do so at this juncture would be futile.
1.
A federal court may not consider the merits of a habeas claim if a state court has denied relief due to a procedural default. Sawyer v. Whitley, 505 U.S. 333, 338, 112 S.Ct. 2514, 2518, 120 L.Ed.2d 269 (1992). Only procedural rules that are firmly established and regularly followed by state courts can prevent habeas review of federal constitutional rights. Hathorn v. Lovorn, 457 U.S. 255, 262-63, 102 S.Ct. 2421, 2426, 72 L.Ed.2d 824 (1982). Article 11.07 of the Texas Code of Criminal Procedure prohibits a second habeas petition if the petitioner urges grounds therein that could have been, but were not, raised in his first habeas petition. See TEX. CODE CRIM. PROC. ANN. art. 11.07, § 4 (Vernon Supp. 2002). This statute constitutes an adequate state procedural bar for purposes of federal habeas review. Fearance v. Scott, 56 F.3d 633, 642 (5th Cir.), cert. denied, 115 S.Ct. 2603 (1995). The procedural bar doctrine also applies to unexhausted claims if the state court would likely dismiss a successive habeas petition under article 11.07. See Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111 S.Ct. 2546, 2557 n. 1, 115 L.Ed.2d 640 (1991) (procedural default occurs when prisoner fails to exhaust available state remedies and "the court to which the petitioner would be required to present his claims in order to meet the exhaustion requirement would now find the claims procedurally barred").
The statute provides, in relevant part, that:
(a) If a subsequent application for writ of habeas corpus is filed after final disposition of an initial application challenging the same conviction, a court may not consider the merits of or grant relief based on the subsequent application unless the application contains sufficient specific facts establishing that:
(1) the current claims and issues have not been and could not have been presented previously in an original application or in a previously considered application filed under this article because the factual or legal basis for the claim was unavailable on the date the applicant filed the previous application; or
(2) by a preponderance of the evidence, but for a violation of the United States Constitution no rational juror could have found the applicant guilty beyond a reasonable doubt . . .
TEX. CODE CRIM. PROC. ANN. art. 11.07, § 4(a).
2.
Although petitioner challenged the revocation of his mandatory supervision in two applications for state post-conviction relief, he never complained that he was denied counsel at his revocation hearing. No explanation is offered to excuse this procedural default. The court finds that a Texas court, presented with this claim in a successive habeas petition, would likely find it barred under article 11.07. Consequently, federal habeas relief is not proper. See Coleman, 111 S.Ct. at 2557 n. 1; see also Nobles v. Johnson, 127 F.3d 409, 422-23 (5th Cir. 1997).
RECOMMENDATION
Petitioner's application for writ of habeas corpus should be denied.