Opinion
Civil Action No. 4:04-CV-0174-Y.
July 2, 2004
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 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 pursuant to 28 U.S.C. § 2254.
B. PARTIES
Petitioner William Clifford Vest, TDCJ-ID #1078685, is in custody of the Texas Department of Criminal Justice, Correctional Institutions Division, and is currently confined at a pre-parole release facility in Mineral Wells, Texas.
Respondent Douglas Dretke is the Director of the Texas Department of Criminal Justice, Correctional Institutions Division (TDCJ).
C. PROCEDURAL HISTORY
Vest is serving a five-year state sentence for felony driving while intoxicated. (State Habeas R. at 46.) By way of the instant petition, he appears to challenge the decision of the Texas Board of Pardons and Paroles (the Board) to deny him mandatory supervision release on November 6, 2003. (State Habeas R. at 78; Federal Petition at 3, 7; Resp't Answer, Exhibit B.) Vest filed a state habeas application for writ of habeas corpus raising one or more of the issues presented, which was denied by the Texas Court of Criminal Appeals without written order on January 14, 2004. See Ex parte Vest, Application No. 57,893-01, at cover. Vest filed his federal petition for writ of habeas corpus on January 26, 2004, in the United States District Court for the Northern District of Texas, Fort Worth Division.
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).
D. ISSUES
Vest raises the following grounds for relief:
(1) His sentence is "illegal" because the Board "has mandated a way to invoke slave labor by taking away accrued good time and work time by default of flat time"; and
(2) The Board "has double sentenced [him] by adding to [his] sentence by way of rejecting good time earned" in violation of the double jeopardy clause. (Federal Pet. at 7-8.)
E. RULE 5 STATEMENT
Dretke asserts that one or more of Vest's claims are unexhausted because they have not been presented to TDCJ's time credit dispute resolution process and are procedurally barred. (Resp't Answer at 2, 6-8.) See 28 U.S.C. § 2254(b)(1), (b)(3); TEX. GOV'T CODE ANN. § 501.0081 (Vernon Supp. 2004). The court, however, construes Vest's claims more as a challenge to the Board's denial of mandatory supervision, rather than a time credit dispute. Moreover, if exhaustion of administrative remedies via the prison time credit dispute resolution process was required in this instance, arguably, the Texas Court of Criminal Appeals would have dismissed Vest's state habeas application for failure to do so. Thus, the court considers the claims presented on the merits. See also 28 U.S.C. § 2254(b)(2) (providing that, notwithstanding petitioner's failure to exhaust, federal court may deny petition on the merits).
F. LEGAL ANALYSIS
1. Standard of Review
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). 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
Although Vest's claims are vague and indecipherable, he appears to argue that the Board's denial of mandatory supervision release somehow results in "slave labor," a "taking away" of accrued good time and work time credits, and constitutes double jeopardy. (Federal Petition at 7.)
A habeas corpus applicant under 28 U.S.C. § 2254 must claim violation of a federal constitutional right to be entitled to relief. Narvaiz v. Johnson, 134 F.3d 688, 695 (5th Cir. 1998). To the extent Vest contends the denial of mandatory supervision results in "slave labor," the Constitution does not forbid a prison inmate's being required to work without pay or other compensation. See Ali v. Johnson, 259 F.3d 317, 318 n. 2 (5th Cir. 2001); Moody v. Baker, 857 F.2d 256, 257 (5th Cir. 1998). To the extent he contends the Board is "taking away" his "accrued good time and work time by default of flat time," his claim is not supported by the record, which reflects that Vest has not lost any good or work time credits. (Resp't Answer, Exhibit C.) Finally, the denial of mandatory supervision release does not implicate a double jeopardy violation. As a matter of state law, good and work time credits apply only to eligibility for parole or mandatory supervision and do not actually reduce, extend, or otherwise have any effect on the length of sentence imposed on an inmate. See Ex parte Hallmark, 883 S.W.2d 672, 674 (Tex.Crim.App. 1994); TEX. GOV'T CODE ANN. § 498.003(a) (Vernon Supp. 2004). Consequently, any good or work time Vest has accrued does not discharge any part of his five-year sentence. "A Texas inmate cannot compute his sentence by adding good time credits to the time he has actually served (flat time) — it merely reflects when he is eligible for mandatory supervision, not that he is absolutely entitled to immediate release." Cordova v. Johnson, No. 3:00-CV-1622-P, 2001 WL 493179, at *3 (N.D. Tex. May 8, 2001) (not designated for publication).
In his state habeas application, Vest also raised various due process claims, including a claim that he has a "vested" liberty interest in mandatory supervision release and that the Board did not hold a hearing and give him notice before denying release. (State Habeas R. at 12-19.) To the extent Vest attempts to raise a due process claim herein, a state prisoner does not have a federal constitutional right to obtain release prior to the expiration of his sentence. See Bd. of Pardons v. Allen, 482 U.S. 369, 378 n. 10 (1987). Nevertheless, the Fifth Circuit has held that the Texas mandatory supervision scheme in place prior to September 1, 1996 created a constitutional 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)). Effective September 1, 1996, however, the Texas mandatory supervision law was revised to provide for a discretionary mandatory supervision scheme. See Tex. Gov't Code Ann. § 508.149(b) (Vernon Supp. 2004). The Fifth Circuit has yet to rule on whether a federal constitutional expectancy of early release exists under Texas's revised statute, but the Texas Court of Criminal Appeals has held that the statute "vests a liberty interest in the eligible inmate." Ex parte Geiken, 28 S.W.2d 553, 558 (Tex.Crim.App. 2000). In light of the liberty interest created by the statute, the state court determined that constitutional due process requires that an eligible inmate be provided timely notice that he will be considered for mandatory supervision release and a meaningful opportunity to be heard — i.e., an opportunity to tender or have tendered to the Board information in support of release. Id. at 559-60. Further, if release is denied, the inmate must be informed in what respects he falls short of qualifying for early release. Id. at 560.
Here, Vest was notified on September 16, 2002 that he was denied parole but that, if eligible for mandatory supervision, the Board would review his case to determine if he would be released within six months before his projected release date. (State Habeas R. at 27.) Thereafter, on November 6, 2003, the Board decided not to grant discretionary mandatory supervision release, and it notified Vest of its decision and the reasons for its decision. ( Id. at 28.) It further notified him that his next review date was set for November 2004. Thus, Vest was afforded all the due process he was entitled. It is recognized, however, that since the Board's November 6, 2003 denial, the Texas Court of Criminal Appeals has determined that, as a matter of due process, an inmate is entitled to notice of the specific month and year in which he will be reviewed for release on mandatory supervision. Ex parte Retzlaff, 135 S.W.3d 45, 50 (Tex.Crim.App. 2004). However, the undersigned Magistrate Judge finds no support for the proposition that the decision in Ex parte Retzlaff is to be applied retroactively under state law.
In sum, Vest has failed to prove that a federal constitutional violation has occurred. The state court's determination on the claims presented does not appear to be contrary to or involve an unreasonable application of clearly established federal law nor does it appear to be based on an unreasonable determination of facts in light of the evidence presented in the state court proceedings. The state court's determination is thus entitled to a presumption of correctness. 28 U.S.C. § 2254(d), (e)(1).
II. RECOMMENDATION
Vest's petition for writ of habeas corpus should 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 July 23, 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 (5th Cir. 1996) (en banc op. on reh'g); Carter v. Collins, 918 F.2d 1198, 1203 (5th Cir. 1990).
IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until July 23, 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.