Opinion
Civil Action No. 4:02-CV-460-Y
August 7, 2002
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 Title 28, United States Code, Section 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 Title 28 of the United State Code, Section 2254.
B. PARTIES
Petitioner Spencer C. Parker, TDCJ-ID #627599, is in the custody of the Texas Department of Criminal Justice, Institutional Division and is presently incarcerated in the Powledge Unit in Palestine, Texas.
Respondent Janie Cockrell is the Director of the Texas Department of Criminal Justice, Institutional Division.
C. PROCEDURAL HISTORY
On November 17, 1992, Parker entered a negotiated plea of guilty in Cause #0476331 in Criminal District Court No. 3 of Tarrant County, Texas to the offense of burglary of a building. The state trial court accepted his plea and sentence him to ten (10) years' confinement in the Institutional Division of the Texas Department of Criminal Justice. Parker did not pursue a direct appeal from his conviction. (Pet. at 2-3).
Parker was released on mandatory supervision on April 30, 1996. (Resp. Ans., Ex. A). The Board of Pardons and Paroles ("the Board") issued an arrest warrant for Parker on March 12, 2001 based on his commission of another offense while on mandatory supervision release. (Resp. Ans., Exs, B, D). A revocation hearing was held March 28, 2001, and on April 3, 2001, the Board voted to revoke Parker's release on mandatory supervision. (Resp. Ans., Exs. C, E).
Parker has filed two state applications for writ of habeas corpus. The first was dismissed so that Parker could pursue administrative remedies. Ex parte Parker, No. 51,693-01 (Tex.Crim.App. March 20, 2002). See generally TEX. GOV'T CUDE ANN. § 501.0081(b) (Vernon Supp. 2001). The Texas Court of Criminal Appeals denied Parker's second application without written order. Ex parte Parker, No. 51,693-02 (Tex.Crim.App. April 17, 2002). Parker filed his Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. § 2254 in the United States District Court for the Eastern District of Texas on April 22, 2002. This action was transferred to the United States District Court for the Northern District of Texas, Fort Worth Division, on May 6, 2002.
For purposes of this habeas corpus proceeding, the federal petition is deemed filed on the date the petitioner executed his petition and presumably deposited it in the prison mailing system. Spotville v. Cain, 149 F.3d 374 (5th Cir. 1998).
D. ISSUES
Petitioner presents the following as grounds for relief
1. The forfeiture of his street time following revocation of his mandatory supervision release is unconstitutional.
2. He has been erroneously denied credit for his street time.
3. It violates double jeopardy to restore time credits to other prisoners who have been returned to prison following revocation proceedings, but to refuse to do so in his case.
4. His mandatory supervision release was improperly revoked.
Although Parker refers to the prohibition against double jeopardy in framing his argument, the court finds the argument is better construed as a complaint brought under the Equal Protection Clause.
E. RULE 5 STATEMENT
Respondent believes Petitioner has sufficiently exhausted available state remedies on the issues presented, and therefore, does not move for dismissal on grounds of failure to exhaust.
F. LEGAL STANDARD FOR GRANTING HABEAS CORPUS RELIEF
The standards codified in 28 U.S.C. § 2254 guide our review of a petition for writ of habeas corpus filed by a state prisoner:
(d) An application for 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 the adjudication of the claim —
(1) resulted in a decision that was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States; 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 proceeding.28 U.S.C. § 2254(d). See also Lindh v. Murphy, 521 U.S. 320, 117 S.Ct. 2059, 138 L.Ed.2d 481 (1997). Relief is authorized if a state court arrives at a conclusion opposite to that reached by the Supreme Court 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, 120 S.Ct. 1495, 1523, 1518, 146 L.Ed.2d 389 (2000). Relief is also available if the state court identifies the correct legal principle but unreasonably applies that principle to the facts of the prisoner's case or reaches a decision based on an unreasonable factual determination. See 28 U.S.C. § 2254(d)(1)-(2); Montoya v. Johnson, 226 F.3d 399, 404 (5th Cir. 2000). Mere disagreement with the state court is not enough: The standard is one of objective reasonableness. Montoya, 226 F.3d at 404. State court determinations of underlying factual issues are presumed correct, and the petitioner has the burden to rebut the presumption with clear and convincing evidence. 28 U.S.C. § 2254(e)(1).
G. DISCUSSION
1. Forfeiture of Time Credits
Parker asserts that the forfeiture of his street time is unconstitutional and that he is entitled to restoration of the lost time credits under a recent change in Texas law, which he refers to by its legislative identifier, "H.B. 1649." Effective September 1, 2001, Texas law provides:
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.
Section 508.149 of tile Texas Government Code is not applicable to Parker as it pertains to violent offenders who are ineligible for mandatory supervision release. TEX. GOV'T CODE ANN. § 508.149 (Vernon Supp. 2002).
TEX. GOV'T CODE ANN. § 508.283(c) (Vernon Supp. 2002). Parker contends that, because he is a non-violent offender who had completed more than half his sentence by the date he was arrested, H.B. 1649 applies and requires restoration of his forfeited street time. This change in the law applies to revocations occurring on or after September 1, 2001. See id. historical notes [Act of May 21, 2001, 77th Leg., R.S., ch. 856, § 11,2001 Tex. Gen. Laws 1607]. As Parker was informed when he pursued his administrative remedies in the state penal system, the change in the law does not apply to him because his mandatory supervision release was revoked April 3, 2001. 569 (5th Cir. 1996); Betts v. Beto, 424 F.2d 1299, 1300 (5th Cir. 1970) (per curiam). Parker's loss of time credit was in conformity with the statute in effect when his mandatory supervision was revoked.
Parker complains that he has not been given a satisfactory explanation why his request for restoration of his street time credit has been denied, but his own exhibits include letters and memoranda that inform him he is ineligible because he was returned to custody before the change in the law took effect. (Plf. Supp., filed July 22, 2002).
Before the legislative change effective September 1, 2001, the law read:
If a person's parole, mandatory supervision, or conditional pardon 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.
Act of April 23, 1999, 76th Leg., R.S., ch. 62, § 10.34, 2001 Tex. Gen. Sess. Laws ___ (former version codified as Tex. Code Crim. Proc. Ann. art. 42.18, § 14). See also Morrison v. Johnson, 106 F.3d 127, 129 n. 1 (5th Cir. 1997).
Moreover, it is well-established that a convicted prisoner does not have a constitutional right to be released before the expiration of a valid sentence. See Greenholtz v. Inmates of the Nebraska Penal Correctional Complex, 442 U.S. 1, 7, 99 S.Ct. 2100, 2103, 60 L.Ed.2d 668 (1979); Wottlin v. Fleming, 136 F.3d 1032, 1037 (5th Cir. 1998). A parole violator has no federal constitutional right to credit on his sentence for time spent on parole. See Newby v. Johnson, 81 F.3d 567, 569 (5th Cir. 1996); Betts v. Beto, 424 F.2d 1299, 1300 (5th Cir. 1970) (per curiam).
But Parker asserts that it is unfair to credit later offenders with their street time, but refuse to restore his forfeited time merely because he missed the effective date of the amended state statute by mere months. The Equal Protection Clause requires that similarly situated persons be treated alike. Mayabb v. Johnson, 168 F.3d 863, 870 (5th Cir. 1999) (quoting City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432 (1985)). When this occurs without adequate justification, equal protection may be violated even though the different treatment does not relate to a substantial constitutional right. Hilliard v. Board of Pardons and Paroles, 759 F.2d 1190, 1193 (5th Cir. 1985).
Where no suspect classification or fundamental right is implicated, as in this case, a rational basis test is applied to allegations of an equal protection violation. See Tigner v. Cockrell, 264 F.3d 521, 526 (5th Cir. 2001). See also Green v. Johnson, 160 F.3d 1029, 1044 (5th Cir. 1998) (holding that Texas law does not confer a fundamental right to parole). Under a rational basis test, we must uphold a governmental classification if it rationally promotes a legitimate government objective. See Tigner, 264 F.3d at 526; Green, 160 F.3d at 1044. The claimant who alleges an equal protection violation has the burden of proof Mayabb, 168 F.3d at 870. Parker makes no attempt to show that the state had no rational basis for applying the change in the law prospectively only.
Parker has not demonstrated that the state courts acted unreasonably in rejecting his arguments related to the forfeiture of his time credits. Parker does not satisfy the criteria set forth in 28 U.S.C. § 2254 for federal habeas corpus relief.
2. Revocation of Mandatory Supervision
Parker alleges that his mandatory supervision was improperly revoked on the basis of a misdemeanor theft charge. He notes that he had successfully completed his sentence (a 65-day jail term) for the theft offense before the revocation hearing was held.
The terms of Parker's mandatory supervision release instructed him to obey all municipal, county, state and federal laws. (Resp. Ans., Ex. A). Parker also signed the written rules and conditions of his release indicating that he understood that any violation of the conditions of his release would be sufficient cause for revocation. Id. Parker does not dispute that he was subsequently convicted of committing theft, albeit a misdemeanor offense, while on mandatory supervision release. (Resp. Ans., Exs., B, C). Nor does he dispute that the decision to revoke his mandatory supervision was within the discretion of the Texas Board of Pardons and Paroles. Parker does not demonstrate that he is entitled to relief under 28 U.S.C. § 2254.
RECOMMENDATION
The 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 specific 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, specific written objections to the United States Magistrate Judge's proposed findings, conclusions and recommendation until August 28, 2002. Pursuant to Carter v. Collins, 918 F.2d 1198 (5th Cir. 1990) and Douglass v. United Services Auto Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc), failure to file specific written objections within the specified time shall bar a de novo determination by the district court of any finding of fact or conclusion of law and 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.
ORDER
Pursuant to Section 636, Title 28 of the United States Code, it is hereby ORDERED that each party is granted until August 28, 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 if objections are filed and the opposing party chooses to file a response, the 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.