Opinion
NO. 4:00-CV-0056-A
May 8, 2001
ORDER
Came on for consideration the above-captioned action wherein Mackiel Billingsley is petitioner and Gary L. Johnson is respondent. This is a petition for writ of habeas corpus filed pursuant to 28 U.S.C. § 2254. On February 15, 2001, the United States Magistrate Judge issued his findings, conclusion, and recommendation that the writ be denied, and ordered that the parties be granted until March 8, 2001, in which to serve and file their written objections thereto. Respondent has not made any further response. Petitioner filed his objections on March 12, 2001, which was four days past the deadline ordered by the Magistrate Judge. By order and final judgment signed March 14, 2001, the court (a) determined that because timely objections had not been filed, further appeal was waived pursuant to Thomas v. Arn, 474 U.S. 140, 150 (1985), (b) accepted the findings, conclusions, and recommendation of the United States Magistrate Judge, and (c) ordered that the petition for writ of habeas be denied. On March 28, 2001, petitioner filed a motion to set aside the above-mentioned order and final judgment asserting that his objections were timely pursuant to Thompson v. Rasberry, 993 F.2d 513 (5th Cir. 1993), because he handed them over to prison officials on March 5, 2001. After reviewing this motion, the court ordered on April 9, 2001, that petitioner, in addition to providing his unsworn declaration, file with the court by 4:30 p.m. on April 23, 2001, a record of the prison demonstrating that he delivered his written objections to the appropriate prison officials on March 5, 2001, for mailing to the court.
On April 23, 2001, petitioner filed a motion titled "MOTION TO FILE A RECORD OF THE PRISON AND A [sic] AFFIDAVIT WITH THE COURT," in which he alleges Exhibits A and B are attached to said motion. Petitioner alleges that Exhibit A is a prison record demonstrating that he timely delivered his objections to the appropriate prison officials on March 5, 2001, and that Exhibit B is an unsworn declaration stating same. However, no Exhibit A was attached to, or accompanying, said motion. Nevertheless, on May 8, 2001, the court accepted petitioner's unsworn declaration and set aside and vacated its order and final judgment denying the petition for writ of habeas corpus. Therefore, the court now reviews de novo those portions of the Magistrate Judge's findings and conclusions to which specific objections have been made.
Petitioner makes several objections to the Magistrate Judge's conclusion that the holding in Malchi v. Thaley, 211 F.3d 953 (5th Cir. 2000), does not entitle petitioner to the restoration of his previously earned good time credits. In Malchi, the Fifth Circuit reviewed the Texas mandatory supervision scheme in the context of a prison disciplinary proceeding. The Malchi court held that prisoners entitled to release on mandatory supervision have a constitutional expectancy of early release under the Texas mandatory supervision scheme in place prior to September 1, 1996, for earned good time credits, and that, therefore, the due process standards enunciated in Wolff v. McDonnell, 418 U.S. 539 (1974), apply to prison disciplinary proceedings resulting in the forfeiture of such credits. However, Malchi is distinguishable from petitioner's case. Here, petitioner's good time credits were not forfeited subject to a prison disciplinary proceeding during confinement; rather, his good time credits were forfeited upon revocation of his parole. And, the forfeiture of good time credits upon parole revocation does not violate federal due process standards. Newby v. Johnson, 81 F.3d 567, 569 (5th Cir. 1996); Starnes v. Cornett. 464 F.2d 524 (5th Cir. 1972), cert. denied, 409 U.S. 987 (1972). Further, even if Malchi's holding could be extended to the forfeiture of good time credits upon parole revocation, petitioner has not challenged the procedural safeguards surrounding the revocation of his parole, presumably his revocation hearing, which resulted in the forfeiture of his good time credits. Accordingly, petitioner has not demonstrated a constitutional deprivation with respect to the forfeiture of his good time credits.
The court has reviewed de novo the remaining portions of the findings and conclusions of the Magistrate Judge to which petitioner has specifically objected and is satisfied that the Magistrate Judge made the appropriate recommendation. Accordingly, the court adopts, and accepts, the findings, conclusions, and recommendation of the Magistrate Judge.
Therefore,
The court ORDERS that the petition for writ of habeas corpus be, and is hereby, denied.