Opinion
No. 5:02-CV-032-C
June 6, 2002
ORDER
On this day the Court considered John M. Hemandez's ("Petitioner") Petition for Writ of Habeas Corpus by a Person in State Custody filed pursuant to 28 U.S.C. § 2254. Respondent Cockrell has filed a Motion to Dismiss For Failure to Exhaust State Court Remedies with Brief in Support. Petitioner has not filed a response or objections to the answer.
Respondent has lawful custody of Petitioner pursuant to a judgment and sentence from the 364th Judicial District Court of Lubbock County, Texas, in Cause No. 92-415,340, styled The State of Texas v. John M. Hernandez. Although Petitioner originally pleaded not guilty to the felony offense of arson in that cause, he was found guilty of the offense. On March 5, 1999 he was sentenced to three (3) years' confinement in the Texas Department of Criminal Justice, Institutional Division ("TDCJ-ID"). Petitioner was subsequently released to mandatory supervision on November 5, 1999, but his mandatory supervision was revoked on February 1, 2002.
Petitioner complains in the instant petition that he is being denied credit for good conduct time and work time that he earned prior to the revocation of his mandatory supervision. Respondent does not address the merits of Petitioner's complaint; rather, Respondent argues that Petitioner has failed to exhaust his administrative remedies by filing an application for state habeas relief. Although Respondent stated that the relevant state court records would be forwarded to this Court, no records were ever received for filing in this case.
Respondent stated that he was "reserving the right to raise the statute of limitations" if the Motion to Dismiss for Failure to Exhaust was denied. The Court notes that in the Order to Show Cause, dated March 21, 2002, Respondent was given permission to file a motion to dismiss in lieu of an answer if raising issues of exhaustion, limitations, or successive petitions, but the Order clearly and specifically stated that "[a]ll applicable issues must be raised in the first responsive pleading filed by Respondent." Respondent is admonished that this language does not give Respondent permission "to reserve the right" to raise limitations at a later date.
Petitioner filed the instant petition on February 26, 2002; therefore, his petition is subject to review under the Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA"). See Lindh v. Murphy, 521 U.S. 320 (1997) (holding that all federal writs filed on or after April 24, 1996, are subject to AEDPA). Under 28 U.S.C. § 2254 (b)(1), as amended by the AEDPA, a state prisoner may not obtain federal habeas relief until he has exhausted the remedies available in the state courts; or he demonstrates the absence of state court remedies or circumstances rendering the state court remedies ineffective. See Whitehead v. Johnson, 157 F.3d 384, 387 (5th Cir. 1998) ("A fundamental prerequisite to federal habeas relief under § 2254 is the exhaustion of all claims in state court prior to requesting federal collateral relief."). A § 2254 petition for writ of habeas corpus may, however, "be denied on the merits, notwithstanding the failure of the applicant to exhaust the remedies available in the courts of the State." 28 U.S.C. § 2254 (b)(2).
A federal habeas petitioner must demonstrate that "he has been deprived of some right secured to him . . . by the United States Constitution or the laws of the United States" before he can obtain federal habeas relief, Allison v. Kyle, 66 F.3d 71, 73 (5th Cir. 1995).
A prisoner has no constitutional or inherent right to receive credit on his sentence for good behavior while incarcerated. See Wolff v. McDonnell, 418 U.S. 539, 557 (1974) ("[T]he Constitution itself does not guarantee good-time credit for satisfactory behavior while in prison."); Hamill v. Wright, 870 F.2d 1032, 1036 (5th Cir. 1989) (finding that there is no federal constitutional right to the award of good conduct time). Texas law provides that good time or work time credits only affect an inmate's eligibility for release on parole or mandatory supervision and do not affect the length of his sentence. Tex. Gov't Code Ann. § 498.003 (Vernon Supp. 1998); Ex parte Montgomery, 894 S.W.2d 324 (Tex.Crim.App. 1995). See Hallmark v. Johnson, 118 F.3d 1073, 1079 (5th Cir. 1997) (finding that since 1977 Texas law has provided that good conduct time is "a privilege and not a right"); Ex parte Morris, 626 S.W.2d 754, 757 (Tex.Crim.App. 1982) (holding that whether designated "work time" or "good time" credits, such credits do not become vested under Texas law).
Moreover, Texas law provides that good conduct time credits are automatically forfeited upon the revocation of parole or mandatory supervised release and such credits, at the discretion of prison officials, might or might not be reinstated following a revocation. Tex. Gov't Code Ann. § 497.004(b) (Vernon 1995). See Hallmark v. Johnson, 118 F.3d at 1079-80 (holding that when the authority for the restoration of good-time credits is in the discretion of prison authorities, there is no protected liberty interest in good time). Petitioner has failed to demonstrate that the failure by TDCJ-ID officials to give him credit for previously earned good conduct time or work time violates the Constitution or laws of the United States.
For the reasons stated above, this Court finds that Petitioner's Petition for Writ of Habeas Corpus should be DENIED and dismissed with prejudice.
All relief not expressly granted is denied and all pending motions are denied.