Opinion
NO. 3-03-CV-2796-D
January 22, 2004
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Petitioner Stephen Wynn Tipping, 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.
On June 19, 2000, petitioner was released on parole after serving part of a 25-year prison sentence for burglary of a habitation. Less than two years later, his parole was revoked for multiple violations, including failure to report, failure to participate in a substance abuse treatment program, and failure to pay supervision fees. Petitioner was sent back to prison without credit for the time spent on parole. He also forfeited all good time credits earned prior to his release. Petitioner challenged this action in an application for state post-conviction relief. The application was denied without written order. Ex parte Tipping, No. 54, 305-02 (Tex.Crim.App. Feb. 12, 2003). Petitioner then filed this action in federal court.
Petitioner originally brought this action in the Tyler Division of the Eastern District of Texas. Tipping v. Dretke, No. 6-03-CV-459. The case was transferred to the Dallas Division pursuant to 28 U.S.C. § 2254(d). See ORDER, 10/23/03.
II.
In three related grounds, petitioner contends that the denial of sentence credit for the time he was on parole and the forfeiture of previously earned good time credits violate the double jeopardy clause, the due process clause, and the equal protection clause of the Fifth and Fourteenth Amendments to the United States Constitution.A.
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 Nebraska Penal and Correctional Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 2104, 60 L.Ed.2d 668 (1979); Orellana v. Kyle, 65 F.3d 29, 31-32 (5th Cir. 1995); cert. denied, 116 S.Ct. 736 (1996) (no constitutional right to early release on parole). This includes credit for "street time" while out on parole and the forfeiture of accrued good time credits. See Thompson v. Cockrell, 263 F.3d 423, 429 (5th Cir. 2001) (good time credits); Newby v. Johnson, 81 F.3d 567, 569 (5th Cir. 1996) (street time). However, a state may not apply the parole laws retroactively. See Weaver v. Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 964, 67 L.Ed.2d 17 (1981). The critical inquiry is whether the law changes the legal consequences of an act completed before the effective date of the legislation. Id., 101 S.Ct. at 965; Story v. Collins, 920 F.2d 1247, 1251 (5th Cir. 1991).B.
Petitioner seeks credit on his sentence for the time he was on parole and good time credits earned prior to his release. However, the relevant statutes in effect at the time the underlying offense was committed provide otherwise. Article 42.12 of the Texas Code of Criminal Procedure provides, in relevant part, that "[w]hen the Governor revokes a person's parole . . . he maybe required to serve the portion remaining of the sentence on which he was released on parole, such portion to be calculated without credit for the time from the date of his release on parole to the date of his revocation" TEX. CODE CRIM. PROC. ANN. art. 42.12, § 22 (Vernon 1979), now TEX. Gov'T CODE ANN. § 508.156(e) (Vernon 1998) (emphasis added), In addition, state law allows for the forfeiture of previously earned good time credits "[u]pon revocation of parole or mandatory supervision." See TEX. REV. Civ. STAT. ANN. art. 6181-1 (Vernon 1977), now TEX. GOV'T CODE ANN. § 498.004(b). 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). There is no evidence that these statutes have been applied retroactively to deprive petitioner of any right under state or federal law. Consequently, petitioner is not entitled to federal habeas relief. See Blair v. Dretke, 2003 WL 22244647 at * 1-2 (N.D. Tex. Sept. 18, 2003).RECOMMENDATION
Petitioner's application for writ of habeas corpus should be denied.