Opinion
No. 4:02-CV-0500-Y
September 12, 2002
FINDINGS, CONCLUSIONS AND RECOMMENDATION AND NOTICE AND ORDER OF THE UNITED STATES MAGISTRATE JUDGE
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:
FINDINGS AND CONCLUSIONS
A. NATURE OF THE CASE
This is a petition for writ of habeas corpus by a state prisoner pursuant to 28 U.S.C. § 2254.
B. PARTIES
Petitioner Raymond Lynn Eaton, TDCJ-ID #291850, is in custody of the Texas Department of Criminal Justice, Institutional Division, in Tennessee Colony, Texas.
Respondent Janie Cockrell is the Director of the Texas Department of Criminal Justice, Institutional Division (TDCJ-ID).
C. PROCEDURAL HISTORY
In November 1978, Eaton was charged in state court with the murders of Virginia and John Muller. (State Habeas Records.) On April 30, 1979, pursuant to negotiated plea agreements, Eaton entered pleas of guilty to murder with a deadly weapon in each instance and was sentenced to consecutive life terms of incarceration. ( Id.; Pet. at 2.) Thereafter, Eaton began his quest for postconviction relief in the state courts. In addition, Eaton has filed two previous federal petitions for writ of habeas corpus. The instant petition was filed on June 5, 2002, in the United States District Court for the Northern District of Texas, Fort Worth Division.
The state court records reflect that Eaton has filed nine state applications for writ of habeas corpus since 1980. Ex Parte Eaton, Nos. 9,188-01 through 9,188-09. In his most recent state writ applications, one for each case, Eaton raised the claims presented herein. Ex parte Eaton, Nos. 9,188-08 9,188-09 (Tex.Crim.App. Jan. 30, 2002).
The court takes judicial notice from its own records of Eaton's two previous federal petitions for habeas corpus relief in civil action nos. 4:97-CV-0307 and 4:98-CV-0297, in which he challenged on substantive grounds his convictions and life sentences. The first petition was dismissed without prejudice for lack of exhaustion of state court remedies. Eaton v. Johnson, No. 4:97-CV-0307 (N.D. Tex. May 23, 1997). The second petition was dismissed as time barred. Eaton v. Johnson, No. 4:98-CV-0297-A (N.D. Oct. 15, 1998).
Generally, a pro se habeas petition is filed when the petition and any attachments are delivered to prison authorities for mailing. See Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998). Eaton's petition was neither signed nor dated. Thus, the court considers his petition filed on the date it was received and filed in the Clerk's Office on June 5, 2002.
D. RULE 5 STATEMENT
Cockrell believes Eaton has sufficiently exhausted his state remedies as required by 28 U.S.C. § 2254 (b) and does not move for dismissal on exhaustion grounds. (Resp't Answer at 3.) Instead, she contends this court should dismiss the petition as a successive writ, or, in the alternative, as time barred. ( Id. at 5-8.) In response, Eaton filed a reply.
E. ISSUES
In two grounds, Eaton asserts that TDCJ-ID has denied him release to mandatory supervision and yearly parole review in violation of his federal constitutional rights. (Pet'r Mem. of Law at 1-4.)
F. SUCCESSIVE PETITION AND STATUTE OF LIMITATIONS
As a preliminary matter, the court must address the issues of whether the instant petition is an improper successive petition warranting dismissal pursuant to 28 U.S.C. § 2244 (b), and whether the petition is time barred pursuant to 28 U.S.C. § 2244 (d). Eaton filed a request with TDCJ-ID seeking a mandatory release date calculated pursuant to the law in effect before 1987. (Pet'r Mem. of Law at App. E.) See TEX. GOV'T CODE ANN. § 501.0081 (Vernon Supp. 2002). In response, TDCJ-ID issued written responses on February 15, 2001 and April 4, 2001, informing Eaton that an inmate sentenced to life is not eligible for release to mandatory supervision. ( Id.) Eaton's previous petitions challenged the merits of his underlying murder convictions and life sentences and not his release to mandatory supervision. His current petition does not present claims that were or could have been raised in his earlier petitions; thus, the instant petition is not impermissibly successive. See 28 U.S.C. § 2244 (a)-(b); In re Cain, 137 F.3d 234, 235-37 (5th Cir. 1998).
Cockrell also asserts that the petition is barred by the one-year statute of limitations. 28 U.S.C. § 2244 (d). However, the factual predicate for the claims presented arose no sooner than February 15, 2001, when the TDCJ-ID first informed Eaton in writing that he was ineligible for mandatory release from his life sentences. See 28 U.S.C. § 2244 (d)(1)(D); TEX. GOV'T CODE ANN. §§ 501.0081, 508.149(d); Morris v. Cockrell, No. 4:01-CV-245-Y, 2002 WL 66798, at *2 (N.D. Tex. Jan. 11, 2002); Randall v. Cockrell, No. 3:01-C V-530-X, 2001 WL 1597829, at *2 (N.D. Tex. Dec. 11, 2001). Thus, absent any applicable tolling, Eaton's petition was due by February 15, 2002. Applying the tolling provision of 28 U.S.C. § 2244 (d)(2) for the period of time Eaton's state writ applications were pending, Eaton had an additional 250 days within which to file his federal petition. As such, his petition filed on June 5, 2002 was timely.
G. LEGAL ANALYSIS
1. Standard of Review
Having determined that this court has jurisdiction to consider Eaton's petition, the court turns to the merits of the claims. Under 28 U.S.C. § 2254 (d), a writ of habeas corpus on behalf of a person in custody pursuant to the judgment of a state court shall not be granted with respect to any claim that was adjudicated on the merits in state court proceedings unless he shows that the prior adjudication: (1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established federal law, or (2) resulted in a decision that was based on an unreasonable determination of the facts in light of the evidence presented in the state court. 28 U.S.C. § 2254 (d). A decision is contrary to clearly established federal law if the state court arrives at a conclusion opposite to that reached by the Supreme Court of the United States on a question of law or if the state court decides a case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 405-06 (2000); see also Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000), cert. denied, 532 U.S. 1039 (2001). A state court decision will be an unreasonable application of clearly established federal law if it correctly identifies the applicable rule but applies it unreasonably to the facts of the case. Williams, 529 U.S. at 407-08.
Further, federal courts give great deference to a state court's factual findings. Hill, 210 F.3d at 485. Section 2254(e)(1) provides that a determination of a factual issue made by a state court shall be presumed to be correct. 28 U.S.C. § 2254 (e)(1). The applicant has the burden of rebutting the presumption of correctness by clear and convincing evidence. Id. When the Texas Court of Criminal Appeals denies relief in a state habeas corpus application without written order, as in the instant case, it is an adjudication on the merits, which is entitled to this presumption. Ex parte Torres, 943 S.W.2d 469, 472 (Tex.Crim.App. 1997).
2. Discussion
Eaton contends in his first ground that, having served more than 20 years imprisonment, he is entitled to release to mandatory supervision from his life sentences under the law in effect at the time of his convictions, and, thus, his continued incarceration violates his federal constitutional rights. The Texas Court of Criminal Appeals considered and rejected Eaton's claim. Ex parte Eaton, Nos. 9,188-08 9,188-09, at cover.
A state prisoner does not have a federal constitutional right to obtain release prior to the expiration of his sentence. Board of Pardons v. Allen, 482 U.S. 369, 378 n. 10 (1987); Orellana v. Kyle, 65 F.3d 29, 31 (5th Cir. 1995), cert. denied, 516 U.S. 1059 (1996). However, former article 42.12, § 15(c) of the Texas Code of Criminal Procedure in effect at the time Eaton was convicted and sentenced provided, in relevant part:
A prisoner who is not on parole, except a person under sentence of death, shall be released to mandatory supervision by order of the Board when the calendar time served plus any accrued good conduct time equal the maximum term to which he was sentenced.
Act of May 30, 1977, 65th Leg., R.S., ch. 347, § 2, 1977 Tex. Gen. Laws 922, 927-28 (current version at TEX. GOV'T CODE ANN. §§ 508.147 (a) (Vernon 1998)). The Fifth Circuit has interpreted this statute to create, as a matter of constitutional due process, an expectancy of early release to those inmates whose calendar time combined with good time credits equal the sentence imposed. See Malchi v. Thaler, 211 F.3d 953, 957-58 (5th Cir. 2000) (citing Wolff v. McDonnell, 418 U.S. 539, 557 (1974)). Under Texas law, however, "a life-sentenced inmate is not eligible for release to mandatory supervision" under the statutory provision. Ex parte Franks, 71 S.W.3d 327, 327-28 (Tex.Crim.App. 2001). The Texas Court of Criminal Appeals has concluded the plain language of the mandatory supervision statute indicates that "it is mathematically impossible to determine a mandatory supervision release date on a life sentence because the calendar time served plus any accrued good conduct time will never add up to life." Id. at 328. See also Barnes v. Cockrell, No. 3:01-CV-823-J, 2002 WL 1878548, at *2 (N.D. Tex. Aug. 12, 2002); Morris, No. 4:01-CV-245-Y, 2002 WL 66798, at *3; Randall, No. 3:01-CV-530-X, 2001 WL 1597829, at *2-3; Derry v. Johnson, No. 3:01-CV-762-P, 2001 WL 1029520, at *1-2 (N.D. Tex. Aug. 27, 2001); Elliott v. Johnson, No. 3:00-CV-1415-R, 2001 WL 456354, at *2 (N.D. Tex. Apr. 26, 2001), adopted, 2001 WL 493173 (N.D. Tex. May 9, 2001). But see Govan v. Johnson, No. 1:97-241-C (N.D. Tex. July 20, 1998). This court must defer to state court on matters of state statutory interpretation. See Weeks v. Scott, 55 F.3d 1059, 1063 (5th Cir. 1995); Fierro v. Lynaugh, 879 F.2d 1276, 1278 (5th Cir. 1989).
Eaton contends in his second ground that he is entitled to annual parole review under the parole laws in effect at the time he was convicted and sentenced and that the parole board is applying changes in the parole laws retroactively in violation of the Ex Post Facto Clause. (Pet. at 7; Pet'r Mem. of Law at 2.) The proper vehicle for raising this claim, however, is by way of 42 U.S.C. § 1983. Allison v. Kyle, 66 F.3d 71, 73 (5th Cir. 1995). The claim is not cognizable under § 2254 because a favorable determination on the issue would not automatically entitle Eaton to accelerated release. Id.
RECOMMENDATION
Eaton's petition for writ of habeas corpus should be DENIED.
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 written objections 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 hereby extending the deadline within which to file, not merely place in the mail, written objections to the United States Magistrate Judge's proposed findings, conclusions and recommendation until October 3, 2002. Failure to file written objections within the specified time shall bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any unobjected-to proposed factual findings and legal conclusions accepted by the district court. Douglass v. United Services Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc); Carter v. Collins, 918 F.2d 1198, 1203 (5th Cir. 1990).
ORDER
Pursuant to Section 636, Title 28 of the United States Code, it is hereby ORDERED that each party is granted until October 3, 2002, to serve and file, not merely place in the mail, written objections to the United States Magistrate Judge's proposed findings, conclusions and recommendation. 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.