Opinion
2:01-CV-0174.
March 11, 2003
REPORT AND RECOMMENDATION TO DENY PETITION FOR A WRIT OF HABEAS CORPUS
Petitioner EARL RAY WHITE, JR. has filed with this Court a Petition for a Writ of Habeas Corpus by a Person in State Custody challenging respondent's failure to credit petitioner's sentence with time served for the period of time he was on conditional release, commonly referred to as "street time," as well as the forfeiture of petitioner's good time accumulated prior to his conditional release. For the reasons hereinafter expressed, the undersigned United States Magistrate Judge is of the opinion petitioner's federal habeas application should be denied.
I. PROCEDURAL HISTORY
In his habeas application, petitioner advises he was convicted of the offense of possession of a controlled substance on September 16, 1992 out of the 251st Judicial District Court of Randall County, Texas, and was assessed a 15-year sentence of confinement in the Texas Department of Criminal Justice, Institutional Division. See State v. White, No. 8176-C. Petitioner does not indicate whether he sought a direct appeal of his conviction or sentence.
It appears that after serving approximately 4 1/2 years of his 15-year sentence, petitioner was released from confinement to conditional release. According to petitioner such release was revoked on August 24, 2000 in Randall County. Petitioner states that on February 20, 2001, he filed a state application for a writ of habeas corpus challenging the State's failure to credit petitioner's 15-year sentence with the time he spent on conditional release, the State's revocation of petitioner's good time credits, and the validity of the parole certificate itself. Petitioner advises the state habeas application was denied without written order by the Texas Court of Criminal Appeals on April 11, 2001. See Ex parte White, No. 49,014-01.
TDCJ-ID verified petitioner was released to parole on March 4, 1997.
TDCJ-ID confirms petitioner was returned to custody on September 26, 2000.
On April 27, 2001, petitioner filed the instant federal habeas application with the United States District Court for the Northern District of Texas, Lubbock Division, the district in which petitioner was confined. On May 2, 2001, that Court, construing petitioner's application to be a challenge to his conviction, transferred the petition to this Court.
Since the filing of the instant application, petitioner was transferred to the Telford Unit in New Boston, Texas, located in the Texarkana Division of the Eastern District of Texas. Petitioner also advises the Court of his new address in the Potter County Detention Center in Amarillo, Texas.
II. PETITIONER'S ALLEGATIONS
In support of his contention that he is being held in violation of the Constitution and laws of the United States, petitioner appears to present the following grounds:
1. Petitioner is constitutionally entitled to calendar (flat) time credit toward his 15-year sentence for time he spent out-of-prison on conditional release, commonly referred to as "street time," because failure to so credit his sentence with such time:
a. imposes a second punishment on petitioner thereby violating the constitutional prohibition against double jeopardy; and
b. results in a petitioner's sentence being extended or served in installments; and
2. Petitioner is constitutionally entitled to good time credits accrued prior to his conditional release because:
a. petitioner's good time inhered into the punishment assessed, thereby becoming a part of his judgment, and petitioner was not conditionally pardoned; and
b. petitioner signed the parole certificate under duress.
A. Street Time as Calendar Time
In his first ground, petitioner complains of respondent's failure to credit petitioner's 15-year sentence with "street time," the time he was released from confinement on conditional release. The undersigned notes that any failure and/or refusal on respondent's part to credit petitioner's sentence with street time does not violate petitioner's federal constitutional rights. A state prisoner does not have a federal constitutional right to obtain release prior to the expiration of his sentence. See Board of Pardons v. Allen, 482 U.S. 369, 378 n. 10, 107 S.Ct. 2415, 2421 n. 10, 96 L.Ed.2d 303 (1987); Orellana v. Kyle, 65 F.3d 29, 31-32 (5th Cir. 1995), cert. denied, 116 S.Ct. 736 (1996). If allowed early release, the "street time" accumulated while on conditional release does not operate to reduce the sentence of a parole violator returned to prison. See Starnes v. Connett, 464 F.2d 524 (5th Cir.), cert. denied, 93 S.Ct. 341 (1972). Under federal law, a prisoner does not receive credit toward his calendar time for time spent on conditional release if the prisoner violates the conditions of his release. Thompson v. Cockrell, 263 F.3d 423, 426 (5th Cir. 2001). Likewise, Texas statutory law in effect at the time of petitioner's conditional release provided that an inmate serving the remainder of his sentence after the revocation of his conditional release did not receive credit for the time from the date of the person's release to the date of revocation. See Tex. Gov't Code Ann. §§ 508.283(b) (previously Tex. Code Crim. Proc. Ann. art. 42.18 § 14(a)). The Texas and federal laws do not raise constitutional concerns. Thompson v. Cockrell, 263 F.3d at 426 ( citing Morrison v. Johnson, 106 F.3d 127, 129 n. 1 (5th Cir. 1997)). Petitioner therefore does not have a liberty interest grounded in either a state law or the federal Due Process Clause itself that would require respondent to credit petitioner with the street time he spent on parole. Petitioner has failed to state a federal constitutional violation so as to entitle him to federal habeas relief. Therefore, this claim should be denied.Petitioner also appears to claim he is constitutionally entitled to flat time, or calendar time, for the period of time he was out-of-prison on conditional release prior to the revocation of his parole because failure to so credit such time violates the constitutional prohibition against double jeopardy. This claim is meritless. The Fifth Circuit has declined to extend the protections of the Double Jeopardy Clause to parole revocation proceedings. Morrison v. Johnson, 106 F.3d 127, 129 n. 1 (5th Cir. 1997) (citing Cortinas v. United States Parole Comm'n, 938 F.2d 43, 46-47 (5th Cir. 1991), and United States v. Whitney, 649 F.2d 296, 298 (5th Cir. Unit B 1981)). Cf. United States v. Pettus, 303 F.3d 480, 482 (2nd Cir. 2002) (federal statute permitting judges to impose renewed terms of supervised release without crediting street time does not run afoul of the Double Jeopardy Clause).
Petitioner also appears to argue the failure to credit his sentence with flat time for the time spent on parole has resulted in "extending" his 15-year sentence to a 17-year sentence. In order for petitioner to present a federal constitutional issue, he must show he is being detained or held in custody longer than the length of his sentence.
In this case, it appears petitioner went into custody on his 15-year sentence sometime in 1992. Petitioner has not shown he has been physically confined in prison for fifteen (15) years, the length of his sentence. Consequently, petitioner has not completely discharged his 15-year sentence. Since petitioner is not being forced to serve more than a total of fifteen (15) years, then no federal constitutional violation has been shown and no federal habeas relief is warranted.
To the extent petitioner also claims the failure to credit his sentences with flat time for his "street time" results in his being forced to serve his sentence in installments, petitioner's claim is without merit. Petitioner apparently is relying on the State of Texas rule stated in Ex Parte Morris: "A sentence must be continuous and a prisoner or inmate cannot be required to serve his sentence in installments, unless it is shown that a premature or unlawful release of the prisoner or inmate resulted or occurred through some fault on the part of the prisoner or inmate." See Morris, 626 S.W.2d at 757-58. Under Texas law, if a prisoner or inmate is released through no fault of his own, he is entitled to credit on his sentence for the time spent at liberty. Initially noting this is an argument under state law rather than federal constitutional law as required by federal habeas corpus procedure, the undersigned finds such case law is not applicable to petitioner's circumstances. Petitioner's claims are without merit and should be denied.
B. Good Time
Petitioner also contends he is constitutionally entitled to the good time he accrued during the time he was incarcerated on his sentence prior to his early conditional release from prison on parole or mandatory supervision. Petitioner refers, in passing, to several bases as support for his argument that he should receive credit for his previously accrued good time. Said bases are mostly incoherent and not supported by authority. However, it appears the main thrust of petitioner's argument is that his good conduct time became a part of his judgment and the forfeiture of, and failure to credit his sentence with, said good time credits amounts to a denial of petitioner's due process rights.
For example, petitioner makes several arguments concerning mandatory supervision release, however, petitioner received early release to parole, not mandatory supervision.
Texas law is clear that good conduct time applies only to eligibility for parole or mandatory supervision and does not otherwise affect an inmate's term. Tex. Gov't Code Ann. § 498.003 (Vernon 2002). It is also clear that upon revocation of parole or mandatory supervision, an inmate loses all good conduct time previously accrued. See Tex. Gov't Code Ann. § 498.004 (Vernon 2002) (previously section 497.004 and Tex. Rev. Civ. Stat. art. 6181-1). Upon return to the institutional division, the inmate may accrue new good conduct time for subsequent time served in the division. Id. Current Texas law does not allow the restoration of good conduct time forfeited on a revocation. Id. Respondent is not violating Texas law by denying petitioner credit for previously accrued good time and, thus, petitioner is not being denied any constitutional right to due process by a failure of respondent to abide by state law.
Texas statutes have provided for the forfeiture of good conduct time upon revocation of conditional release since 1977. See Thompson v. Cockrell 263 F.3d 423, 428 (5th Cir. 2001) (citing Ex Parte Henderson, 645 S.W.2d 469, 471 (Tex.Crim.App. 1983) (en banc) (citing Article 6181-1, Sec. 4, V.A.C.S. (effective August 29, 1977)).
To the extent, if any, petitioner claims he has a protected liberty interest in his pre-parole good time credits, neither current or prior Texas law has created a protected liberty interest in such good time credits. Since 1977, Texas law has provided that good conduct time credits are a "privilege and not a right." See Tex. Rev. Civ. Stat. Ann. art. 6181-1, § 4 (West 1987) (now Tex. Gov't Code Ann. § 498.003 (Vernon 2002)). Texas case law has clarified that "good-time is not a vested right, but rather is a privilege which may be forfeited . . . by violating the guidelines of a conditional release program." Ex parte Henderson, 645 S.W.2d 469, 472 (Tex.Crim.App. 1983). This determination was made on the basis that the statutes have vested complete discretion with the state correctional authorities on the issue of whether good time credits forfeited upon revocation of parole or mandatory supervision were to be restored. ("The director of the institutional division 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 rules adopted by the division." Tex. Gov't Code § 498.004 (Vernon 1995)). Specifically, the discretion to restore or not to restore forfeited good conduct time eliminated any valid expectation of restoration as restoration of good conduct time was not mandatory. Consequently, there was no protected liberty interest in the restoration of these good time credits. See Hallmark v. Johnson, 118 F.3d 1073, 1079-80 (5th Cir. 1997) (determining there is no protected liberty interest in the restoration of good time credits forfeited for disciplinary infractions because the state statutes vest complete discretion with the state correctional authorities on the issue of restoration). On September 1, 1995, Texas law was amended and removed from prison authorities any authority to restore good time credits forfeited on a revocation. (The department may not restore good conduct time forfeited on a revocation.") There is no protected liberty interest in the good time credits accrued prior to conditional release but forfeited upon revocation of conditional release.
Petitioner also argues he is constitutionally entitled to the reinstatement of his good time credits because he was not afforded a separate hearing specifically addressing whether said good time credits should be forfeited. Texas statute mandates that upon revocation of conditional release, an inmate forfeits all good conduct time previously accrued. Tex. Gov't Code § 498.004 (Vernon's 2002). The statute does not allow for discretion. Therefore, a hearing on the issue of forfeiture of good time credits would involve only the issue of whether there were grounds upon which conditional release could be revoked. Due process concerns are not implicated in this situation and do not require a separate hearing on the forfeiture of good conduct time. Petitioner's claim is without merit and should be denied.
To the extent petitioner argues the standard parole certificate is void ab initio as being unconscionable or is voidable because petitioner signed such certificate under duress, such claims do not warrant relief. It is entirely within respondent's prerogative to require that an inmate accept conditions of early release prior to actual release from incarceration. Petitioner has not shown he was opposed to signing the conditions of release at the time of his early release, nor has he shown he was induced to agree to the conditions of release contrary to his will. It appears petitioner, after weighing his options, elected to agree to the conditions of release of his own free will and did not have a basis on which to complain until after violating such conditions, having his early release revoked, and being returned to prison. Moreover, to the extent petitioner claims the parole certificate was voidable because he signed said certificate under duress or as a result of undue coercion, petitioner has not presented any evidence whatsoever to support his allegations. Petitioner's only support for his allegation is by way of his statement that he "reluctantly signed away all commutation time and agreed to forfeit all street time upon parole revocation in exchange for [his] liberty." The fact that petitioner contends he reluctantly signed the parole certificate provides him no basis for federal habeas corpus relief.
III. RECOMMENDATION
It is the RECOMMENDATION of the United States Magistrate Judge to the United States District Judge that the federal habeas corpus application filed by petitioner EARL RAY WHITE, JR. 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 utilizing the inmate correspondence card, and to respondent by regular U.S. Mail.
Any party may object to these proposed findings, conclusions, and recommendation by filing such objections within fourteen (14) days after the filing date indicated on the first page of this Report. See Fed.R.Civ.P. 5(b) (service by mail is complete upon mailing); Fed.R.Civ.P. 6(e) (allowing a 3-day service by mail extension). Any such objections shall be made in a written document entitled "Objections to 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. Objecting parties shall file the written objections with the United States District Clerk and serve a copy of such objections on all other parties. A party's failure to timely file written objections to the proposed findings, conclusions, and recommendation contained in this report shall bar an aggrieved party, 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.