Opinion
CIVIL ACTION NO. 4:02-CV-997-Y
April 24, 2003
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 William Joseph White, #638734, is in custody of the Texas Department of Criminal Justice, Institutional Division (TDCJ-ID), in Bridgeport, Texas.
Respondent Janie Cockrell is the Director f the TDCJ-ID.
C. FACTUAL AND PROCEDURAL HISTORY
On February 22, 1993, in Dallas County, White was sentenced to three ten-year prison terms for possession of cocaine, attempted kidnapping, and indecency with a child younger than 17 years, in cause numbers F8975483-SM, F-9202412-IM, and F-9225584-VM. (2State Habeas R. at 71; 3State Habeas R. at 67; 4State Habeas R. at 68) He was released to mandatory supervision on March 7, 1996. (2State Habeas R. at 54.) Thereafter, his mandatory supervision was revoked on November 29, 2001, and his various time credits were forfeited. ( Id.) White has filed three state applications for writ of habeas corpus, one for each case, challenging TDCJ's forfeiture of his time credits, all three of which were denied without written order by the Texas Court of Criminal Appeals. Exparte White, Nos. 53,293-02, 53,293-03 53,293-04, at cover (Tex.Crim.App. Oct. 16, 2002 and Nov. 20, 2002) (not designated for publication). White 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 December 6, 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). Cockrell has filed an answer with supporting affidavit and documentary exhibits, to which White has filed a reply.
"2State Habeas R.," "3State Habeas R.," and "4State Habeas R." refer to the record in White's state writ Application Nos. 53,293-02, 53,293-03, and 53,293-04, respectively.
D. ISSUES
In four grounds, White argues that (1) the unlawful forfeiture of his time credits was the result of an "unconstitutional forced agreement to the parole contract . . . w/out due process, w/out any infractions of any rules within T.D.C.J.-I.D., or w/out any advice of counsel," (2) the forfeiture of his time credits extends his ten-year sentence beyond that which the trial court ordered to a fifteen-year sentence, (3) the "additional prison sentence" constitutes cruel and unusual punishment and violates the prohibition against bills of attainder, the separation of powers, and the due process and double jeopardy clauses, and (4) the denial of his "street time" is contrary to "new law." (Pet. at 7-8; Pet'r Mem. in Support at 18-29.)
E. EXHAUSTION
Although Cockrell does not address the issue of exhaustion, it appears White has sufficiently exhausted his state remedies on all the issues presented. See 28 U.S.C. § 2254(b)(1).
F. DISCUSSION
When reviewing applications for habeas corpus relief, federal courts will only review allegations of deprivations of federal rights. 28 U.S.C. § 2254(a). A Texas 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 Corr. Complex, 442 U.S. 1, 7 (1979). Similarly, there is no constitutionally protected right to restoration of any forfeited time credits or to a sentence reduction based on forfeited credits. See Wolff v. McDonnell, 418 U.S. 539, 557 (1974); Hallmark v. Johnson, 118 F.3d 1073, 1079-80 (5th Cir. 1997); Newby v. Johnson, 81 F.3d 567, 569 (5th Cir. 1996); Starnes v. Cornett, 464 F.2d 524, 524 (5th Cir. 1972). Time credit is not a vested right, but rather a privilege established by the Texas legislature that maybe forfeited. See Ex parte Henderson, 645 S.W.2d 469, 472 (Tex.Crim.App. 1983).
Under his first ground, White argues that his release to mandatory supervision was governed by an unlawful contract. (Pet'r Mem. in Support at 18.). In Texas, only inmates released from incarceration on parole are required, as a precondition of release, to accept, sign, and execute a contract as a precondition to release. See Act of May 28, 1989, 71st Leg., R.S., ch. 785, § 5.01, 1989 Tex. Gen. Laws 3471, 3540 (formerly TEX. CODE CRIM. PROC. ANN. art. 42.18 § 8(g), currently TEX. GOV'T CODE ANN. § 508.154) (Vernon 1998)). As is required by state law, before his release White was provided with a written statement, stating the rules and conditions of mandatory supervision. The purpose of the document is to advise the releasee of the general terms and conditions of his release and any special conditions, and advise him that he must abide by all the rules and conditions of his release or suffer revocation of his mandatory supervision release. (Resp't Answer at Ex. B.) See Godaire v. Cockrell, No. 4:00-CV-1912-A, 2001 WL 1408387, at *2 n. 8 (N.D. Tex. Nov. 8, 2001). Thus, White was not required to sign any contract before release on mandatory supervision, and he would have been released regardless of his execution of the subject document. See id. He also would have suffered the forfeiture of his previously earned credits regardless of whether he had executed the document. Id. White's claim that he was released pursuant to an unlawful contract therefore lacks merit.
Next, under grounds two and three, White claims that forfeiture of his time credits violates various constitutional protections. Texas law in effect at the time of the offenses and convictions expressly provides for automatic forfeiture of previously earned good time upon revocation of mandatory supervision. See Act of May 26, 1989, 71st Leg., R.S., ch. 212, § 2.01, 1989 Tex. Gen. Laws 918, 944 (formerly TEX. GOV'T CODE ANN. § 497.004, currently TEX. GOV'T CODE ANN. § 498.004 (Vernon 1998)). Similarly, state law in effect at the time of the offenses and convictions expressly denies credit for street time to a person whose mandatory supervision is revoked following his release from prison. See Act of May 25, 1989, 71st Leg., R.S., ch. 785, § 5.01, 1989 Tex. Gen. Laws 3471, 3543-44 (formerly TEX. CODE CRIM. PROC. ANN. art. 42.18, § 14(a), currently TEX. GOV'T CODE ANN. § 508.283(b)-(c) (Vernon Supp. 2003)). The Fifth Circuit has held that Texas statutory law allowing the Board of Pardons and Paroles to disregard the time a prisoner spends on mandatory supervision does not raise a constitutional concern and that a prisoner does not have a liberty interest in accrued calendar time spent on mandatory supervision. See Thompson v. Cockrell, 263 F.3d 423, 426 (5th Cir. 2001). See also Campos v. Johnson, 958 F. Supp. 1180, 1192 (N.D. Tex. 1997); Hill v. Cockrell, No. 3:02-CV-0419-L, 2002 WL 1268020, at *2 (N.D. Tex. May 30, 2002). Thus, White does not have a liberty interest in street time credits grounded in the due process clause. See Thompson, 263 F.3d at 426. On the other hand, the Fifth Circuit has held that Texas's mandatory supervision scheme in place prior to September 1, 1996 for earned good time credits does create a liberty interest in good time credits so as to entitle a prisoner to certain procedural safeguards in order to satisfy due process. See Malchi v. Thaler, 211 F.3d 953, 956 (5th Cir. 2000). See also Wolff, 418 U.S. at 557. Review of the revocation hearing report in the instant case indicates that White received all procedural process to which he was due. (Resp't Answer at Ex. C.) See Morrissey v. Brewer, 408 U.S. 471, 489 (1972).
Furthermore, contrary to White's contention, forfeiture of his various time credits does not unlawfully lengthen or prolong his sentences beyond the original terms imposed by the trial court, even though his maximum sentence discharge date may have been extended due to the forfeiture. See Sanchez v. Cockrell, No. 4:00-CV-1803-Y, 2001 WL 1297677, at *3 (N.D. Tex. Oct. 11, 2001); 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). As a matter of Texas law, time credits have no effect on the length of sentence imposed. Consequently, an inmate's punishment is not increased by the forfeiture of time credits. Moreover, White was informed upon his release to mandatory supervision that in the event of revocation, time spent on mandatory supervision release would not be credited to his sentence. (Resp't Answer at Ex. B.) Thus, neither the ex post facto or double jeopardy clauses are implicated. See Morrison v. Johnson, 106 F.3d 127, 129 n. 1 (5th Cir. 1997); Hallmark, 118 F.3d at 1078.
Finally, White's arguments that forfeiture of his time credits also violates the separation of powers doctrine and the ban on bills of attainder and constitutes cruel and unusual punishment are equally without merit. See id.; Leos v. Cockrell, No. 3:00-CV-2343-P, 2002 WL 318338, at *4 (N.D. Tex. Feb. 26, 2002); Jackson v. Johnson, No. 3:01-CV-1553-D, 2001 WL 1478789, at *3 (N.D. Tex. Nov. 16, 2001); Galindo v. Cockrell, No. 4:00-CV-1802-Y, 2001 WL 1057982, at *4 (N.D. Tex. Aug. 31, 2001).
Under his forth ground, White argues that under "new" § 598.283(c) of the Texas Government Code he has a liberty interest in and is entitled to street time for the time he spent on mandatory supervision in "constructive custody" and that failure to allow street time credit forces him to serve his sentence in installments. (Pet. at Pet'r Mem. in Support at 27.) TEX. GOV'T CODE ANN. § 508.283(c) (Vernon Supp. 2003). Section 508.283, applicable to any revocation that occurs on or after September 1, 2001, provides, in relevant part:
(b) If the parole, mandatory supervision, or conditional pardon of a person described by Section 508.149(a) ( which includes a person convicted of indecency with a child) is revoked, the person may be required to serve the remaining portion of the sentence on which the person was released. The remaining portion is computed without credit for the time from the date of the person's release to the date of revocation.
(c) If the parole, mandatory supervision, or conditional pardon of a person other than a person described by Section 508.149(a) is revoked, the person may be required to serve the remaining portion of the sentence on which the person was released. For a person who on the date of issuance of a warrant or summons initiating the revocation process is subject to a sentence the remaining portion of which is greater than the amount of time from the date of the person's release to the date of issuance of the warrant or summons, the remaining portion is to be served without credit for the time from the date of the person's release to the date of revocation. For a person who on the date of issuance of the warrant or summons is subject to a sentence the remaining portion of which is less than the amount of time from the date of the person's release to the date of issuance of the warrant or summons, the remaining portion is to be served without credit for an amount of time equal to the remaining portion of the sentence on the date of issuance of the warrant or citation.
White stands convicted of indecency with a child, a crime listed in § 508.149(a). TEX. GOV'T CODE ANN. § 508.149(a) (Vernon Supp. 2003). Since his parole was revoked after September 1, 2001, § 508.283(b) controls whether he is entitled to credit for the time he spent on mandatory supervision. Under that provision, he is not entitled to credit for the time he spent on mandatory supervision, at least with respect to the indecency conviction. Furthermore, to the extent White attempts to rely on the law in effect at the time of the offenses and convictions, his claim also fails. As previously noted, Texas law at that time provided that a person was not entitled to credit for street time following revocation of mandatory supervision. See Act of May 25, 1989, 71st Leg., R.S., ch. 785, § 5.01, 1989 Tex. Gen. Laws 3471, 3543-44 (formerly TEX. CODE CRIM. PROC. ANN art. 42.18, § 14(a), currently TEX. GOV'T CODE ANN. § 508.283(b)-(c) (Vernon Supp. 2003)). Thus, the denial of street time does not raise a federal constitutional issue. See Thompson, 263 F.3d at 426.
White argues that § 508.283(b) does not apply to him because it applies only to those convicted of indecency after September 1, 1997, the effective date of § 508.149(a). (Pet'r Reply at 9.) He fails, however, to cite to any authority in support of his proposition, and none has been found.
In conclusion, forfeiture of White's good time and street time credits following revocation of mandatory supervision does not violate his constitutional rights. See id. at 1077-81; Newby, 81 F.3d at 569. Absent a claim that White 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).
II. RECOMMENDATION
White'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 in the United States District Court 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 specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation until May 15, 2003. The United States District Judge need only make a de novo determination of those portions of the United States Magistrate Judge's proposed findings, conclusions, and recommendation to which specific objection is timely made. See 28 U.S.C. § 636(B)(1). Failure to file by the date stated above a specific written objection to a proposed factual finding or legal conclusion will bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any such proposed factual finding or legal conclusion accepted by the United States District Judge. 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 May 15, 2003, to serve and file 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, be and hereby is returned to the docket of the United States District Judge.