Workman v. Cockrell

Full title: JAMES E. WORKMAN, JR., Petitioner, v. JANE COCKRELL, Director, Texas…

Court: United States District Court, N.D. Texas, Amarillo Division

Date published: Jan 15, 2003

2:00-CV-0054 (N.D. Tex. Jan. 15, 2003)

Opinion

2:00-CV-0054

January 15, 2003

REPORT AND RECOMMENDATION TO DENY PETITION FOR A WRIT OF HABEAS CORPUS

CLINTON E. AVERITTE, United States Magistrate Judge.

Petitioner JAMES E. WORKMAN, JR. has filed with this Court a pleading entitled "Application for Writ of Habeas Corpus." By his pleading, petitioner advises he is serving an 8-year sentence, assessed upon a conviction for the offense of robbery out of the 4^th Judicial District Court of Dallas County, Texas. Petitioner further advises he was released from confinement on conditional release, but that such release was subsequently revoked. By this application, petitioner appears to challenge the forfeiture of good time credits upon the revocation of his conditional release, as well as respondent's failure to credit petitioner's sentence with time served for the period of time he was released from confinement on conditional release. On March 31, 2000, the undersigned ordered petitioner to file an amended petition, utilizing the form habeas application adopted by this district. Petitioner was warned that failure to properly supplement within the time allowed could result in a recommendation for the dismissal of this case without further notice. Petitioner failed to properly supplement his petition. Nonetheless, for the reasons hereinafter expressed, the undersigned United States Magistrate Judge is of the opinion petitioner's federal habeas application should be denied.

I. 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 good time credits accrued prior to each conditional release; and

2. Petitioner is constitutionally entitled to calendar (flat) time credit toward his 10-year sentence for time he spent out-of-prison on conditional release.

A. Good Time

Petitioner contends respondent is unconstitutionally denying him credit for 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. 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).² 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.

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's first ground should be denied.

B. Street Time as Calendar Time

In his second ground, petitioner maintains he is constitutionally entitled to flat time, or calendar time, for the period of time he was out-of-prison on conditional release, and that respondent's failure to credit his sentence with such time is in violation of his federal constitutional rights. 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. See United States v. Newton, 698 F.2d 770, 772 (5th Cir. 1983); Starnes v. Connett, 464 F.2d 524 (5th Cir. 1972); Betts v. Beto, 424 F.2d 1299, 1300 (5th Cir. 1970). Likewise, Texas statutory law in effect at the time of petitioner's conditional release³ 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 423, 426 (5th Cir. 1999) ( 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 in this ground so as to entitle him to federal habeas relief. Petitioner's claim should be denied.

3 Petitioner advises he was granted conditional release on February 29, 1992.

Petitioner makes the further argument that he is entitled to his street time because the "parole certificate [was] void ab initio because it contain[ed] the essential condition that in the event of parole revocation, time spent on parole will not be credited to the sentence," thereby violating Texas's "one continuous period of discharge" rule, and because the parole contract was unconscionable. Petitioner also argues he is entitled to his street time because the parole certificate is voidable because petitioner signed the certificate "under duress" because petitioner's "only alternative to entering into the agreement at the time was to refuse to sign the contract and accept further incarceration."

The undersigned finds that whether the standard parole certificate issued by respondent is violative of any state law is a matter of state concern and not an issue proper in a proceeding seeking federal habeas relief. Further, the undersigned finds respondent's standard parole certificate is not void ab initio as being unconscionable or voidable as being signed under duress. 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. Petitioner has not presented any evidence whatsoever to support his allegation of undue coercion or duress. Consequently, petitioner's claim is conclusory and will not support federal habeas relief. Moreover, the undersigned finds any complaint of coercion in this instance, even if successful, would not amount to a constitutional deprivation of a protected right. Petitioner's second ground should be DENIED.

II. 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 JAMES E. WORKMAN, JR. be DENIED.

III. 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.

Any party may object to this Report and Recommendation within fourteen (14) days from the "FILED" date indicated on the first page. See 28 U.S.C. § 636(b); Fed.R.Civ.P. 5(b), 6(e). Any such objections shall be in the form of a written pleading entitled "Objections to the 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 the Magistrate Judge and 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.