Opinion
Civil Action No. 4:OO-CV-0391-Y
February 20, 2001
FINDINGS, CONCLUSIONS AND RECOMMENDATIONS 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 Recommendations 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 Randy D. Reynolds, TDCJ-ID #502565, is currently incarcerated in the T.L Roach Trustee Camp of the Texas Department of Criminal Justice, Institutional Division, in Childress, Texas.
Respondent Gary L. Johnson is the Director of the Texas Department of Criminal Justice, Institutional Division.
C. PROCEDURAL HISTORY
On December 29, 1988, Reynolds was convicted upon a negotiated plea of guilty entered in Cause No. 0361193W in Criminal District Court Number One of Tarrant County, Texas of the offense of burglary of a habitation, for which he received a sentence of confinement of eight years. Ex Parte Reynolds, No. 42, 481-01 at 29-33. Pursuant to the terms of the plea agreement, Reynolds was permitted in accordance with TEX. CODE CRIM. PROC. art. 12.45 to enter a plea in bar in Cause No 0361192W, in which he was charged with committing the offense of burglary of a building Id. at 23-7, 32-3. Reynolds did not prosecute a direct appeal from his conviction or sentence. (Petition at ¶ 8). Reynolds was granted release on parole on September 23, 1993, and he was released from confinement on October 7, 1993. (Exhibit A to Respondent's Partial Motion to Dismiss and Partial Answer). He subsequently violated the conditions of his release, and Reynolds' parole was revoked on June 1, 1999. Ex Parte Reynolds, No 42, 481-01 at 18. As a result of the revocation, all of Reynolds' street time and earlier earned good time credits were forfeited.
Reynolds challenged his confinement in a state application for writ of habeas corpus filed on July 20, 1999. Ex Parte Reynolds, No. 42, 481-01 at 2-20. The state did not file a response. Id. at 22. The application was denied without written order by the Texas Court of Criminal Appeals on September 8, 1999. Id at Cover. Reynolds then filed this federal Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2254 on April 6, 2000. In response, the respondent has filed a Partial Motion to Dismiss as Time Barred Pursuant to 28 U.S.C. § 2244 (d) and a Partial Answer with attached documentary exhibit, supported by a brief. The petitioner has not filed a reply.
For purposes of this habeas corpus proceeding, Reynolds' federal petition is deemed filed when he handed over his executed petition to prison authorities for mailing on April 6, 2000, and not this Court's file-stamp date of May 8, 2000. Spotville v. Cain, 149 F.3d 374 (5th Cir. 1998)
D. RULE 5 STATEMENT
Respondent believes that Petitioner has sufficiently exhausted his state remedies on the issues presented and does not move for dismissal on this ground.
E. ISSUES
Petitioner raises the following grounds for relief:
1. The forfeiture of his previously earned street time and good time credits upon the revocation of his parole unlawfully extended his sentence beyond the original term imposed by the court in violation of his protection against double jeopardy.
2. His release onto parole was unlawful, because it was premised upon an invalid contract which was voidable at its inception in that it was signed under duress.
3. The forfeiture of his previously earned street time credits, in addition to his earlier earned goodtime credits, upon the revocation of his parole violates the principles of due process.
F. CLAIMS ONE AND THREE — FORFEITURE OF STREET TIME AND GOOD TIME CREDITS
1. LEGAL STANDARD FOR GRANTING HABEAS CORPUS RELIEF
This habeas corpus proceeding is controlled by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA"). The AEDPA's compelled deference to decisions of state courts is now familiar. 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. See Williams v. Taylor, 529 U.S. 362, 412-13 (2000). See also Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000). An "unreasonable application" of clearly established federal law is one in which the state court language identifies the correct governing legal principle from the Supreme Court's decisions but unreasonably applies that principle to the facts of the prisoner's case. Williams v. Taylor, 529 U.S. 362; Hill v. Johnson, 210 F.3d at 485. The Act further requires that federal courts give great deference to a state court's factual findings. Hill v. Johnson, 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. The applicant now has the burden of rebutting the presumption of correctness by clear and convincing evidence. Id.
2. EXAMINATION OF THE ISSUES
The petitioner is challenging as unlawful his current incarceration, which is the result of the revocation of his parole with the resultant loss of previously accrued street time and good time credits. Reynolds maintains that such forfeiture of credits improperly extended his sentence beyond the term imposed by the trial court in violation of his various constitutional protections. A prisoner's potential Fourteenth Amendment due process liberty claims are limited to freedom from restraints which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical and significant hardship on the inmate. Sandin v. Conner, 515 U.S. 472, 483 (1995).
The interest at issue in this case is restoration of Petitioner's lost street-time and good time credits. Reynolds' claim that he is entitled to credit toward his sentence for the time he spent on parole must fail There is no federal constitutional right to the reduction of the sentence of a parole violator for the time spent on parole. 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). See also Munguia v. United States Parole Commission, 871 F.2d 517, 521 (5th Cir. 1989), cert. denied, 493 U.S. 856 (1989). Moreover, Texas has not created a right to such credits. In Texas, when a person's parole is revoked, that person may be required to serve the portion remaining of the sentence on which he was released. See TEX. CODE CRIM. PROC. art. 42.18 § 15(a), currently TEX. GOV'T CODE § 508.156(e). The portion remaining is to be calculated without credit for the time from the date of the release to the date of revocation. Id. Moreover, a releasee is clearly advised in the Certificate of Parole that in the event his parole was to be revoked for a violation of the conditions of his release, all time served on parole would be forfeited. See TEX. GOV'T CODE § 508.154. Thus, Petitioner has failed to prove that he has been denied a constitutionally protected liberty interest as to the forfeiture of his street time credits.
Since 1947, Texas has denied credit for the time spent on parole after the revocation of parole. See Ex Parte Adams, 941 S.W.2d 136, 137-8 (Tex.Crim.App. 1997).
In Texas, inmates released from incarceration on parole are required, as a precondition of release, to accept, sign, and execute a certificate of parole. See TEX. GOV'T. CODE § 508.154. Texas law requires that, before his release, the releasee must be provided with a written statement, stating the conditions and rules of parole. See TEX. GOV'T. CODE § 508.154(a). The purpose of the document is to advise the releasee of the general terms and conditions of his release and any special conditions, and advise him that he must abide by all the rules and conditions of his release or suffer revocation of his parole. Id. By executing the parole certificate, the parolee indicates that he fully understood all the conditions of his release, and that he agreed to abide by all conditions of his release. The document further includes the provision that in the event that the parolee violates the conditions of his release, his parole could be revoked and the time spent on parole would not be credited towards his sentence, Id. Thus, when Reynolds executed the certificate of parole he was clearly advised that if he violated the conditions of his release, his parole would be revoked and he would suffer the consequences attendant to revocation and he affirmed that he understood such conditions. See certificate of Parole executed by Reynolds on October 7, 1993. (Exhibit A to Respondent's Partial Motion to Dismiss and Partial Answer).
Reynolds' claim that his earlier earned good time credits were unlawfully revoked upon the revocation of his parole must also fail. Under Texas law good-time credit is not a vested right, but rather, a privilege that may be forfeited, either by violating disciplinary rules while in prison, or by violating a condition of parole. Exparte Henderson, 645 S.W.2d 469, 472 (Tex.Crim.App. 1983). Texas law does not give an inmate a constitutional right to restoration of good-time credits forfeited upon revocation of parole. See Ex Parte Montgomery, 894 S.W.2d 324, 327 (Tex.Crim.App. 1995). The statute in effect when the crime occurred provided that upon revocation of parole, the inmate would lose all previously accrued good-conduct time, but the director had the discretion to restore forfeited good time upon revocations that did not involve new convictions. TEX. REV. CIV. STAT. ANN. art. 6181-1 § 4.
Similarly, a Federal inmate who has violated parole conditions has no constitutional right to the reinstatement of previously accrued good-time credits or to credit on his sentence for the time spent on parole. 18 U.S.C. § 4205; Frick v. Quinlin, 631 F.2d 37, 39 (5th Cir. 1980); Ganville v. Hogan, 591 F.2d 323, 323 (5th Cir. 1979); Lambert v. Warden, U.S. Penitentiary, 591 F.2d 4, 8 (5th Cir. 1979); Lazard v. U.S, 583 F.2d 176, 177 (5th Cir. 1978); Henning v. U.S. Bureau of Prisons, 472 F.2d 1221, 1222 (5th Cir. 1973).
See Acts 1985, 69th Leg., pp. 2900-01, ch. 835, § 1. Compare the present law. The terms of TEX. GOV'T. CODE § 498.004(b) (Vernon Supp. 1996) (eff. Sept. 1, 1996) provide, . . . On the revocation of parole . . . the inmate forfeits all good conduct time previously accrued. . . . The department may not restore good conduct time forfeited on a revocation. Thus, the discretion to reinstate forfeited good time to parole or mandatory supervision violators was subsequently statutorily abolished. The abolishment of this discretionary provision has been upheld as not violative of the Ex Post Facto Clause or due process principles. See Hallmark v. Johnson, 118 F.3d 1073 (5th Cir.), cert. denied sub nom., Johnson v. Monroe, 522 U.S. 1003 (1997). The Court in Hallmark held that the state directive removing corrections official's discretion to restore forfeited good time credits did not violate ex post facto prohibition, although, under previous scheme, possibility existed that inmates would have such credits restored, because directive did not effectively increase or make more burdensome inmate's punishment, and the inmate had fair warning that forfeited credits might not be restored at all since the restoration of credits was completely discretionary. Id. at 1077-79. The Court farther held that no due process violation resulted, because good time credits were a privilege, not a right, and the decision to restore credits was discretionary. Id. at 1079-80.
Further, the Texas statutes that govern good time and forfeiture have, since 1977, specifically stated that good-conduct time applies only to eligibility for parole. TEX. REV. CIV. STAT. art. 6181-1, § 4; TEX. GOV'T. CODE § 497.003(a). Once an inmate is paroled, the period of parole is equal to the maximum term for which the person was sentenced less calendar time actually served on the sentence. A person's sentence is not reduced by good-time credit. TEX. CODE GRIM. P. art. 42.18 § 8. Unlike the laws of some other states in which good time decreases the actual sentence, Texas good-time credit applies only to eligibility for parole and does not otherwise affect an inmate's term. TEX. REV. CIV. STAT. art. 6181-1, § 4; TEX. GOV'T. CODE § 497.003(a). Since goodtime credit has no effect on the length of sentence imposed, an inmate's punishment is not increased by the forfeiture of good-conduct time. Ex pate Hallmark, 883 S.W.2d 672, 674 (Tex.Crim.App. 1994). These automatic forfeiture provisions were in effect at the time Reynolds committed his underlying offense, and he therefore had notice that once forfeited his credits may never be reinstated. TEX. CODE GRIM. PROC. art. 42.18 § 15(a) (West Supp. 1988).
The terms of TEX GOV'T. CODE § 497.003(a) (Vernon Supp. 1990) provide in pertinent part:
Good conduct time applies only to eligibility for parole . . . and does not otherwise affect an inmate's term. Good conduct time is a privilege and not a right.
See Miller v. Florida, 482 U.S. 423, 435 (1987) (law violates ex post facto clause because it makes more onerous the punishment for crimes committed before its enactment). See also Beebe v. Phelps, 650 F.2d 774, 776 (1981) (Louisiana statutory provision authorized diminution of sentence for good behavior; hence, statutory forfeiture of 180 days' good-time by inmates returned to an institution for parole violation was an unconstitutional ex post facto law).
Since good-time credit has no effect on the length of sentence imposed, and an inmate's punishment is not increased by the forfeiture of good-conduct time, Reynolds has also not demonstrated that he suffered any double jeopardy violation. See North Carolina v. Pearce, 395 U.S. 711, 717 (1969), overruled in part on other grounds by Alabama v. Smith, 490 U.S. 794 (1989) (the Fifth Amendment, applicable to the States through the Fourteenth Amendment, protects against prosecution for the same offense after an acquittal; prosecution for the same offense after conviction; and multiple punishments for the same offense); United States v. Berry, 977 F.2d 915, 918 (5th Cir. 1992). The forfeiture of Petitioner's street time and good time credits did not unlawfully extend his sentence beyond the original term imposed by the trial court, although Reynolds' maximum sentence discharge date may have been extended due to the forfiture of these credits. Also, as indicated above, he has no constitutional right to street time or good time credits, and they may be lawfully forfeited upon the revocation of parole.
In conclusion, Reynolds is lawfully confined in that he has failed to prove that he has been denied a constitutionally protected liberty interest or that the forfeiture of his street time and good time credits is violative of double jeopardy principles or any constitutional protection. Accordingly, the state court's determination during the state habeas corpus proceeding that Reynolds was not entitled to post-conviction relief is not in conflict with clearly established federal law or based on an unreasonable determination of the facts in light of the evidence presented in the state court proceeding. Relief should therefore be denied pursuant to 28 U.S.C. § 2254 (d) as to claims one and three.
The Texas Court of Criminal Appeals' denial of Reynolds' state application for writ of habeas corpus without written order constitutes an adjudication on the merits. See Ex Parte Torres, 943 S.W.2d 469, 472 (Tex.Crim.App. 1997).
G. CLAIM TWO-UNLAWFUL PAROLE CONTRACT
Reynolds alleges that his release on parole was unlawful, and apparently the subsequent revocation of parole with resultant loss of various credits, because it was premised upon an invalid contract which was voidable at its inception in that it was signed under duress. Respondent asserts in his Partial Motion to Dismiss that this ground is barrel by the one-year statute of limitations.
1. RELEVANT FACTS
Reynolds was granted release on parole on September 23, 1993. (Exhibit A to Respondent's Partial Motion to Dismiss and Partial Answer) Reynolds executed the parole certificate on October 7, 1993, and he was then released from confinement. Id. After violating the conditions of his release, Reynolds' parole was revoked on June 1, 1999. ExParte Reynolds, No 42, 481-01 at 18. As a result of the revocation, all of Reynolds' street time and earlier earned good time credits were forfeited. Reynolds filed state application for writ of habeas corpus on July 20, 1999, and the application was denied without written order on September 8, 1999. Id. at Cover.
2. LEGAL ANALYSIS
The Antiterrorism and Effective Death Penalty Act of 1996 ("AEDPA") imposed for the first time a one-year statute of limitations on petitions for writ of habeas corpus filed by state prisoners. See Antiterrorism and Effective Death Penalty Act, Pub.L. 104-132, 110 Stat. 1214 (1996). In most cases, the limitations period begins to run when the judgment becomes final after direct appeal or the time for seeking such review has expired. 28 U.S.C. § 2244 (d)(1)(A). This period is tolled while a properly filed motion for state post-conviction relief or other collateral review is pending. 28 U.S.C. § 2244 (d)(2). Prisoners who are attacking a conviction or sentence that became final prior to the enactment of the AEDPA must be accorded a reasonable time after the AEDPA's effective date within which to file petitions for collateral relief under section 2255 or petitions for habeas relief pursuant to section 2254. United States v. Flores, 135 F.3d 1000, 1004-5 (5th Cir. 1998). In this context one year has been held to be a reasonable time, and therefore petitioners attacking convictions or sentences that became final before the AEDPA's effective date will be accorded the one-year post AEDPA period, commencing on the Act's effective date, within which to file for section 2255 or 2254 relief Id. at 1006. Moreover, the one-year reasonableness period following the effective date of AEDPA is subject to AEDPA's express tolling provision for time spent pursuing state post-conviction relief or other collateral review. Fields v. Johnson, 159 F.3d 914 (5th Cir. 1998). The one-year limitations period is also subject to equitable tolling in "rare and exceptional cases." Davis v. Johnson, 158 F.3d 806, 811 (5th Cir. 1998), cert. denied, 526 U.S. 1074 (1999); see also Henderson v. Johnson, 1 F. Supp.2d 650, 652 (N.D. Tex. 1998).
The statute provides that the limitations period shall run from the latest of —
(A) the date on which the judgment became final by the conclusion of direct review or the expiration of the time for seeking such review;
(B) the date on which the impediment to filing an application created by State action in violation of the Constitution or laws of the United States is removed, if the applicant was prevented from filing by such action;
(C) the date on which the constitutional right asserted was initially recognized by the Supreme Court, if that right has been newly recognized by the Supreme Court and made retroactively applicable to cases on collateral review; or
(D) the date on which the factual predicate of the claim or claims presented could have been discovered through the exercise of due diligence.28 U.S.C. § 2244 (d)(1).
Although the Act did not contain an effective date provision for the foregoing amendment, it is presumed to have become effective on April 24, 1996, the date the law was enacted. Gozlon-Peretz v. United States, 498 U.S. 395, 404 (1991) (citations omitted) (absent a clear direction by the Congress to the contrary, a law takes effect on the date of its enactment). See also Hatch v. Oklahoma, 92 F.3d 1012, 1014 n. 2, citing Bradshaw v. Story, 86 F.3d 164, 166 (10 Cir. 1996).
Although Flores arose in the context of a motion to vacate and dealt with the analogous statutory period of limitations governing motions to vacate under 28 U.S.C. § 2255, tie Court's decision was not limited to § 2255 motions. See Flores, 135 F.3d at 1002 n. 7. The holding in Flores, therefore, applies to § 2255 motions to vacate and § 2254 habeas corpus petitions. See Flanagan v. Johnson, 154 F.3d 196, 200 n. 2 (5th Cir. 1998) (the holding in Flores on the statute of limitations issue was intended to apply to both § 2254 and § 2255 cases).
Thus, Section 2244(d)(1) sets forth the general rule that a federal habeas petition must be filed within one year after the petitioner's conviction and/or sentence become final. 28 U.S.C. § 2244 (d)(1)(A). In rare instances, the limitation period may run from a date later than the date on which the judgment became final, see 28 U.S.C. § 2244(d)(1)(B)-(D). This case presents such an instance with § 2244(d)(1)(D) being the applicable subsection. Respondent asserts in his Partial Motion to Dismiss that October 7, 1993, the date Reynolds executed the parole certificate is the latest possible date on which the factual predicate of Reynolds' second claim could have been discovered through the exercise of due diligence. See Exhibit A to Respondent's Partial to Dismiss and Partial Answer. Since the federal petition for writ of habeas corpus challenging the subject confinement was not filed until April 6, 2000, more than six years after the ate on which the factual predicate of the claim presented could have been discovered through the exercise of due diligence, and more than one year after the effective date of the AEDPA, the Respondent argues that the petition is time-barred pursuant to 28 U.S.C. § 2244 (d)(1)(D) unless the limitations period was extended by properly filed applications for state post-conviction or other collateral review proceedings. 28 U.S.C. § 2244 (d)(2).
The record reveals that Reynolds did file one application for state post-conviction relief challenging his confinement. However, the limitations pen d was not tolled during the pendency of the state proceedings, because the application was not file until afer the one-year grace period had already expired. Reynolds, therefore, had until April 24, 1997, the date upon which the grace-period expired, to timely file his federal § 2254 petition in compliance with 28 U.S.C. § 2244 (d)(1) and (d)(2). Flanagan v. Johnson, 154 F.3d 196, 203 (5th Cir. 1998); United States v. Flores, 135 F.3d 1000 (5th Cir. 1998). As correctly contended by Respondent, Reynolds' petition for writ of habeas corpus filed on April 6, 2000, is therefore untimely.
Reynolds has asserted no valid justification for his failure to timely file his federal habeas corpus petition challenging his confinement on this ground. The record does not indicate that Reynolds was in any way impeded by any unconstitutional State action in filing this federal petition for writ of habeas corpus, nor does this case present extraordinary circumstances beyond the petitioner's control that made it impossible for him to timely file a federal petition for writ of habeas corpus. Finally, Reynolds may not rely on his status as an unskilled layperson to excuse the delay. The time-bar is ultimately the result of Reynolds' failure to properly and timely prosecute his state habeas corpus application and this federl habeas corpus proceeding. Thus, claim two of this petition for writ of habeas corpus is time-barred pursuant to 28 U.S.C. § 2244 (d)(1)-(2), and the claim should not be considered on the merits. Flanagan v. Johnson, 154 F.3d 196, 203 (5th Cir. 1998); United States v. Flores, 135 F.3d 1000 (5th Cir. 1998), cert. denied, 525 U.S. 1091 (1999). The Respondent's motion to dismiss should be ranted as to claim two.
It is well settled that ignorance of the law and lack of legal assistance, even for an incarcerated prisoner, generally do not excuse prompt filing. Felder v. Johnson, 204 F.3d 168, 171 (5th Cir. 2000); Fisher v. Johnson, 174 F.3d 710, 714 (5th Cir. 1999); Davis v. Johnson, 158 F.3d 806, 808-12 (5th Cir. 1998); Barrow v. S.S. Ass'n, 932 F.2d 473, 478 (5th Cir. 1991). See United States v. Flores, 981 .2d 231, 236 (5th Cir. 1993) (neither an inmate's pro se status, illiteracy, deafness, or lack of legal training counts to factors external to the inmate to excuse an abuse of the writ); Saahir v. Collins, 956 F.2d 115, 118-19 (5th Cir. 1992) (holding that neither prisoner's pro se status nor ignorance of the law constitutes "cause" for failing include legal claim in prior petition). See also Worthen v. Kaiser, 952 F.2d 1266, 1268-68 (10th Cir. 1992) (petitioner's failure to discover the legal significance of the operative facts does not constitute cause); Raynor v. Dufrain, 28 F. Supp.2d 896, 900 (S.D.N.Y. 1998). Further, actual ignorance of the existence of the one-year limitations period, even if attributable to the newly-enacted statute's complete unavailability to inmates, does not serve as a basis for equitable tolling. Felder, 204 F.3d at 171-73.
Even if this Court were to find claim two not time barred, Reynolds is not entitled to relief on his claim in this federal proceeding. Specifically, Reynolds essentially contends that the parole certificate is void because it states that all time served while on parole and all good time credits will be forfeited if a parolee violates the conditions of his parole. He claims that this amounts to coercion in that signing the certificate is a precondition to release and his only alternative was not to sign the certificate and remain incarcerated. Federal habeas corpus review encompasses errors of constitutional magnitude. 28 U.S.C. § 2254 (a) This claim is not cognizable in a federal habeas corpus petition. Moreover, in Texas, parole means the discretionary and conditional release of an eligible prisoner. TEX. CODE CRIM. P. ANN. Art 42.18 § 2 (West Supp. 1988). Texas inmates have no constitutionally protected right to parole, because the relevant Texas statutes do not create an expectation of release which would implicate due process considerations. Orellana v. Kyle, 65 F.3d 29 (5th Cir. 1995), cert. denied, 516 U.S. 1059 (1996), citing, Creel v. Keene, 928 F.2d 707, 712 (5th Cir.), cert. denied, 501 U.S. 1210 (1991); Allison v. Kyle, 66 F.3d 71 (5th Cir. 1995). Such release is entirely speculative. Madison v. Parker, 104 F.3d 765, 768 (5th Cir. 1997). Because Reynolds has no liberty interest in obtaining parole in Texas, he cannot complain of the constitutionality of procedural devices attendant to parole decisions. Orellana, 65 F.3d at 32. Also, as indicated above, street time and good time credits may lawfully be forfeited upon the revocation of parole. Moreover, there is absolutely no evidence whatever that Reynolds was in any way coerced into executing the Certificate of Parole or was in fact under duress at the time of the execution.
The terms of 28 U.S.C. § 2254 (a) provide that a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to the judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.
RECOMMENDATIONS
It is therefore recommended as follows: (1) as to claims one and three, since the petitioner has failed to make a substantial showing of the denial of a federal right, the petition for writ of habeas corpus should be denied; and (2) as to claim two, Respondent's Partial Motion to Dismiss should be granted, and claim two of this petition for writ of habeas corpus should be dismissed with prejudice as time-barred pursuant to 28 U.S.C. § 2244 (d)(1)-(2).
NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS. CONCLUSIONS AND RECOMMENDATIONS 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 recommendations 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 recommendations until March 13, 2001. Pursuant to 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 SETTING DEADLINE FOR OBJECTIONS TO PROPOSED FINDINGS. CONCLUSIONS AND RECOMMENDATIONS
Pursuant to Section 636, Title 28 of the United States Code, it is hereby ORDERED that each party is granted until March 13, 2001, to serve and file, not merely place in the mail, written objections to the United States Magistrate Judge's proposed findings, conclusions and recommendations. It is further ORDERED that if objections are filed and the opposing party chooses to file a response, a response shall be filed within seven (7) lays 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 recommendations, be and hereby is returned to the docket of the United States District Judge.