Spadafora v. Dretke

Full title: DAVID ALLEN SPADAFORA, PETITIONER, v. DOUGLAS DRETKE, DIRECTOR, TEXAS…

Court: United States District Court, N.D. Texas, Fort Worth Division

Date published: Sep 22, 2004

Civil Action No. 4:04-CV-0288-A (N.D. Tex. Sep. 22, 2004)

Opinion

Civil Action No. 4:04-CV-0288-A.

September 22, 2004

FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER

CHARLES BLEIL, 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:

I. FINDINGS AND CONCLUSIONS A. NATURE OF THE CASE

This is a petition for writ of habeas corpus by a state prisoner under 28 U.S.C. § 2254.

B. PARTIES

Petitioner David Allen Spadafora #583819, is in custody of the Texas Department of Criminal Justice, Correctional Institutions Division.

Respondent Douglas Dretke is the Director of the Texas Department of Criminal Justice, Correctional Institutions Division.

C. FACTUAL AND PROCEDURE HISTORY

On January 5, 1988, Spadafora was convicted of first-degree burglary of a habitation with intent to commit theft in the 249^th District Court of Johnson County, Texas, and received a five-year sentence. (State Habeas R. at 18.) On March 7, 1991, Spadafora was convicted of third-degree burglary of a vehicle and received a fifteen-year sentence, which he is currently serving. (State Habeas R. at 14.) Spadafora was released on parole on May 6, 1992. ( Id. at 8.) On December 9, 2002, a warrant issued for his arrest due to violation of his parole, and he was arrested on May 20, 2003. ( Id.) Thereafter, Spadafora sought credit toward his sentence for the time he spent on parole — i.e., street time, through the prison's time dispute resolution process. ( Id. at 7.) TEX. GOV'T CODE ANN. § 501.0081 (Vernon Supp. 2004). The Texas Department of Criminal Justice, however, determined that there was no error in his time credit calculations. ( Id.)

On December 15, 2003, Spadafora filed a state application for writ of habeas corpus seeking credit toward his sentence for his street time pursuant to § 508.283(c) of the Texas Government Code. Id. § 508.283(c) (Vernon Supp. 2004). The state trial court entered findings of fact and conclusions of law and recommended that relief be denied. (State Habeas R. at 47-48, 52.) On February 11, 2004, the Texas Court of Criminal Appeals denied the state habeas application without written order. Ex parte Spadafora, Application No. 58,122-01, at cover. Spadafora filed this federal petition for writ of habeas corpus in the United States District Court for the Northern District of Texas, Fort Worth Division, on April 16, 2004. Spotville v. Cain, 149 F.3d 374, 377 (5^th Cir. 1998) (providing pro se habeas petition filed when petition is delivered to prison authorities for mailing).

D. ISSUES

In one ground, Spadafora contends he "is being denied jail time credit for street time served due to an offense that is mandatory supervision eligible, in violation of Tex. Gov't Code § 508.283." (Pet'r Memorandum at 2.)

E. RULE 5 STATEMENT

Dretke believes that Spadafora has sufficiently exhausted his state remedies on the issue presented as required by 28 U.S.C. § 2254(b) and (c) and, thus, does not move for dismissal on this ground.

F. DISCUSSION

As noted above, Spadafora contends, as he did in state court, that he "is being denied time credit for street time served due to an offense that is mandatory supervision eligible, in violation of" § 508.283(c) of the Texas Government Code. In support of his contention, he alleges the 77^th Legislature passed House Bill 1649, now codified at Texas Government Code § 508.283(c), which grants certain offenders, who have their parole or mandatory supervision revoked on or after September 1, 2001, credit for the portion of time they spent on parole or mandatory supervision — i.e., street time credit. (Memorandum in support at 2-4). Section 508.283 provides, in relevant part:

(b) If the parole, mandatory supervision, or conditional pardon of 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. The remaining portion is computed without credit for the time from the date of the person's release to the date of revocation.

(c) 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 of summons is subject to a sentence the remaining portion of which is less than the amount of time from the date of the persons 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.

TEX. GOV'T CODE ANN § 508.283(b), (c) (Vernon Supp. 2004) (emphasis added).

Section 508.149(a), entitled "Inmates Ineligible for Mandatory Supervision," provides, in relevant part:

(a) An inmate may not be released to mandatory supervision if the inmate is serving a sentence for or has been previously convicted of:

. . .

(13) a first degree felony under Section 30.02 [for burglary], Penal Code.

. . .

Id. § 508.149(a)(13) (emphasis added).

The state trial court determined that, although § 508.283 applies to Spadafora's case given that his parole revocation occurred after September 1, 2001, because he was previously convicted of a first-degree felony burglary under § 30.02 of the Texas Penal Code, he is "a person described by Section 508.149(a)," and, thus, he is not entitled to credit for the time he spent on parole under § 508.283(b). (State Habeas R. at 47-48.) Spadafora contends this interpretation of the statutory provisions "leads to disparate and absurd results because an offender who recently committed (post-Sept. 1, 1994) a simple burglary of a habitation with intent to commit theft would be eligible for street time credit on that offense, but would not be eligible under the exact same fact pattern if the burglary took place under the old laws."¹

1 Spadafora asserts that, effective September 1, 1994, the Texas legislature amended the relevant penal statute to provide that burglary of a habitation with intent to commit theft was a second degree felony. (Pet'r Memorandum in Support at 3.)

To the extent Spadafora contends his denial of street time violated state law, he fails to state a claim for federal habeas relief. When reviewing applications for habeas corpus relief, federal courts will only review allegations of deprivations of federal rights. 28 U.S.C. § 2254(a). Federal habeas relief does not lie for errors of state law. Estelle v. McGuire, 502 U.S. 62, 67 (1991).² It is well established that a Texas parole violator has no federal constitutional right to credit on his sentence for time spent on parole. Hallmark v. Johnson, 118 F.3d 1073, 1079-80 (5^th Cir. 1997); Newby v. Johnson, 81 F.3d 567, 569 (5^th Cir. 1996); Hamill v. Wright, 870 F.2d 1032, 1036-37 (5^th Cir. 1989); Starnes v. Cornett, 464 F.2d 524, 524 (5^th Cir. 1972).

2 It is possible that the state trial court's determination that Spadafora is disentitled to street time credit as "a person described by Section 508.149(a)" is erroneous. Historically, Texas courts have applied the law in effect when the offense was committed in determining an inmate's eligibility for mandatory supervision. Ex parte Mabry, 137 S.W.3d 58, 59-60 (Tex.Crim.App. 2004) (en banc); Ex parte Hall, 995 S.W.2d 151, 152 (Tex.Crim.App. 1999). The relevant statute in this case then would be former article 42.18, § 8(c) of the Texas Code of Criminal Procedure. See Act of May 29, 1989, 71^st Leg., R.S., ch. 785, § 5.01, 1989 Tex. Gen. Laws 3471, 3536-37 (repealed 1997). In 1991, an inmate convicted of burglary of a vehicle was eligible for mandatory supervision regardless of whether he had a prior first-degree felony conviction under § 30.02 for burglary because the language "or had been previously convicted of" was not added to the statutory provision until 1995. See Act of May 29, 1995, 74^th Leg., R.S., ch. 263, § 1, 1995 Tex. Gen. Laws 2592, 2592 (repealed 1997). Thus, at the time of the offense, Spadafora was eligible for mandatory supervision under former article 42.18, § 8(c) as to the holding conviction, and apparently remains so under the savings clause contained in the 1995 amendments. See Act of May 29, 1995, 74^th Leg., R.S., ch. 263, §§ 3,4, 1995 Tex. Gen. Laws 2592, 2593 (repealed 1997); Ex parte Mabry, 137 S.W.3d at 59-60. Spadafora's prior conviction under § 30.02 would not, therefore, appear to disqualify him for street time credit under § 508.283(c) as "a person described by Section 508.149(a). "Nevertheless, even if Spadafora has a state right to street time credit, there must a corresponding federal constitutional right to justify federal habeas intervention.

To the extent Spadafora contends the state's interpretation of § 508.283 discriminates against a certain "class of offenders," his claim is equally without merit. The equal protection clause requires that similarly situated persons be treated alike. Mayabb v. Johnson, 168 F.3d 863, 870 (5^th Cir. 1999). Spadafora argues that the combination of state law changes effective September 1, 1994 (reclassifying burglary of a habitation with the intent to commit theft as a second-degree felony), and September 1, 2001 (granting street time credit to certain offenders under certain circumstances), "created a class of offenders who were previously convicted on a mandatory eligible burglary of a habitation first degree (under subsection d(1)) who are now being denied street time credit due to being convicted of a non-mandatory eligible first degree burglary of a habitation." (Pet'r Memorandum in Support at 3.) As noted above, Spadafora asserts that the fact that "an offender who recently committed (post-Sept. 1, 1994) a simple burglary of a habitation with intent to commit theft would be eligible for street time credit, but would not be eligible under the exact same fact pattern if the burglary took place under the old laws," leads to disparate treatment of non-violent offenders, such as himself.

Spadafora cites to no legal authority in support of his equal protection claim, and none has been found. Furthermore, Spadafora is not similarly situated to offenders who were convicted of burglary of a habitation with intent to commit theft after September 1, 1994. He was convicted of the offense when it was classified as a first-degree felony and when Texas law precluded credit for time spent on parole to all offenders. See Act of May 25, 1989, 71^st Leg., R.S., ch. 785, § 5.01, 1989 Tex. Gen. Laws 3471, 3543-44 (formerly TEX. CODE CRIM. PROC. ANN. art. 42.18, § 14(a), currently TEX. GOV'T CODE ANN. § 508.283(b)-(c)). The fact that state statutes were subsequently amended reclassifying the offense and/or conferring a potential time-credit benefit does not present an equal protection violation. See, e.g., Franks v. Estelle, 543 F.2d 567, 568 (5^th Cir. 1976) (holding nonretroactive application of amended state statutue does not violate equal protection).

In sum, Spadafora has failed to prove that he has been denied any constitutionally protected right. Absent a claim that Spadafora has been deprived of some right secured to him by the United States Constitution or laws, habeas relief is not available. Thomas v. Torres, 717 F.2d 248, 249 (5^th Cir. 1983).

II. RECOMMENDATION

Based on the foregoing, it is recommended that Spadafora's petition for writ of habeas corpus be denied.

III. 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 in the United States District Court 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 extending the deadline within which to file specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation until October 13, 2004. The United States District Judge need only make a de novo determination of those portions of the United States Magistrate Judge's proposed findings, conclusions, and recommendation to which specific objection is timely made. See 28 U.S.C. § 636(B)(1). Failure to file by the date stated above a specific written objection to a proposed factual finding or legal conclusion will bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any such proposed factual finding or legal conclusion accepted by the United States District Judge. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1428-29 (5^th Cir. 1996) (en banc op. on reh'g); Carter v. Collins, 918 F.2d 1198, 1203 (5^th Cir. 1990).

IV. ORDER

Under 28 U.S.C. § 636, it is ORDERED that each party is granted until October 13, 2004, to serve and file 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, a 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.