Opinion
3:01-CV-0023-X.
July 2, 2001
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the Court, this case has been referred to the United States magistrate judge. The findings, conclusions and recommendation of the magistrate judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS:
Type of Case: This is a petition for habeas corpus relief pursuant to 28 U.S.C. § 2254.
Parties: Petitioner is presently confined at the LeBlanc Unit of the Texas Department of Criminal Justice — Institutional Division (TDCJ-ID) in Beaumont, Texas. Respondent is the Director of the TDCJ-ID. The court has not issued process in this case. However, on January 8, 2001, the magistrate judge issue a questionnaire to Petitioner, who filed his answers on January 26, 2001.
Statement of Case: On December 1, 1993, the First Judicial District Court of Dallas County, Texas, sentenced Petitioner to six years in the TDCJ-ID for unlawful possession of a controlled substance. (Petition ¶¶ 1-4). Subsequently, Petitioner was released on mandatory supervision. He remained on mandatory supervision/parole until September 16, 1999, when the TDCJ Pardons and Parole Division revoked his parole and recommitted him to the TDCJ-ID. (Petition ¶ 13). As part of the parole revocation, the Pardons and Parole Division forfeited good-time and work-time credits earned prior to his release on parole and refused to give him credit for the time spent on parole — i.e., street-time credits. (See Answer to Question 2 of the Magistrate Judge's Questionnaire).
In four grounds for relief, Petitioner challenges the forfeiture of the good-time, work-time and street-time credits on due process and double jeopardy grounds. He also challenges the signing of the certificate of mandatory supervision on the ground that it was signed under duress and is, therefore, unconscionable. (Petition ¶ 20).
Insofar as Petitioner alleges that the forfeiture of his good-time and street-time credits amounts to an additional penalty, the court liberally construes his petition to raise a claim under the Ex Post Facto Clause as well as the Double Jeopardy Clause.
On February 8, 2000, Petitioner filed a state application for writ of habeas corpus pursuant to art. 11.07, TEX. CODE CRIM. P., raising the above claims. On July 12, 2000, the Texas Court of Criminal Appeals denied the application without a written order. (Petition ¶ 11).
Findings and Conclusions: Rule 4, of the Rules Governing Section 2254 Cases in the United States District Courts, provides that "[i]f it plainly appears from the face of the petition and any exhibit annexed to it that the petitioner is not entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the petitioner to be notified." The instant petition does not present any cognizable basis for habeas corpus relief.
Petitioner is not entitled to credit for the "flat time" or "street time" that he spent while on mandatory supervision or parole. See Morrison v. Johnson, 106 F.3d 127, 129 n. (5th Cir. 1997). Presently, Texas law expressly denies credit for "street time" to a person whose parole or mandatory supervision is revoked following his release from prison. Section 508.283(b), TEX. GOV'T CODE, which recently re-codified article 42.18 § 14(a), TEX. CODE CRIM. PROC., provides as follows:
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.
TEX. GOV'T CODE ANN. § 508.283(b) (West 2001) (effective September 1, 1997) (emphasis added). At the time of Petitioner's offense, conviction, and sentence, a virtually identical statutory provision governed such matters. See TEX. CODE CRIM. PROC. ANN. art. 42.18 § 14(a) (West 1993). In addition, it is well established in the United States Court of Appeals for the Fifth Circuit "that time spent on parole does not operate to reduce the sentence of a parole violator returned to prison."See Starnes v. Connett, 464 F.2d 524, 524 (5th Cir.), cert. denied, 409 U.S. 987 (1972); see also Cox v. State of Texas, 433 F.2d 982, 982 (5th Cir. 1970) (same); Betts v. Beto, 424 F.2d 1299, 1300 (5th Cir. 1970) (same); Ex parte Canada, 754 S.W.2d 660, 661-62 (Tex.Crim.App. 1988) (holding that defendant was entitled to flat time credit for period between execution of pre-revocation warrant and date on which parole was formally revoked, though statute denied credit for any time on parole).
Petitioner's reliance on the Double Jeopardy and Ex Post Facto Clauses is patently frivolous. The implementation of art. 42.18 § 14(a), TEX. CODE CRIM. P., or § 508.283(b), TEX. GOV'T CODE, has not caused Petitioner to be prosecuted twice for the same offense or to endure "a punishment more severe than that assigned by law when the criminal act occurred. . . ." Hallmark v. Johnson, 118 F.3d 1073, 1077 (5th Cir. 1997), cert. denied, 522 U.S. 1003 (1997) (citing Weaver v. Graham, 450 U.S. 24, 30, 101 S.Ct. 960, 964, 67 L.Ed.2d 17 (1981)). As noted above, Texas law has provided, at least since 1988, that a person is not entitled to credit for "street time" or "flat time" following revocation of his parole or mandatory supervision.
Similarly, Petitioner's claim for restoration of good-time credits does not raise a claim for deprivation of a federal constitutional right. At the time of Petitioner's conviction and sentence, Texas Government Code § 498.004(b) provided in part as follows:
Under Texas law work-time credits are treated as good-time credits. TEX. GOV'T CODE § 498.003(d) (West 2001).
(b) On the revocation of parole or mandatory supervision of an inmate, the inmate forfeits all good conduct time previously accrued. On return to the institutional division the inmate may accrue new good conduct time for subsequent time served in the division. The director of the institutional division may restore good conduct time forfeited on a revocation that does not involve a new criminal conviction after the inmate has served at least three months of good behavior in the institutional division subject to rules adopted by the division . . .See TEX. GOV'T CODE ANN. § 498.004(b) (West 1993) (emphasis added). On September 1, 1995, the Texas Legislature deleted the restoration provision from § 498.004(b). See TEX. GOV'T CODE ANN. § 498.004(b) (West 1996); see also Ex parte Hatcher, 894 S.W.2d 364, 365 and n. 1 (Tex.Crim.App. 1995). Presently § 498.004(b) reads as follows:
Prior to 1991, a similar provision governed the restoration of good time credits following parole revocation. Article 6181-1 § 4, of the Texas Revenue Civil Statute, provided in part as follows:
Upon revocation of parole or mandatory supervision, the inmate loses all good conduct time previously accrued, but upon return to the department may accrue new good conduct time for subsequent time served in the department. The director may, however, restore good conduct time forfeited upon revocations not involving new criminal convictions after an inmate has served a reasonable period of good behavior in the department, to be not less than three months, subject to rules and policies promulgated by the department.
TEX. REV. CIV. STAT. ANN. art. 6181-1, § 4 (West 1988) (emphasis added). See also TEX. GOV'T CODE ANN. § 497.004 (West 1990).
On the revocation of parole or mandatory supervision of an inmate, the inmate, forfeits all good conduct time previously accrued. On return to the institutional division the inmate may accrue new good conduct time for subsequent time served in the division. The department may not restore good conduct time forfeited on a revocation.
TEX. GOV'T CODE ANN. § 498.004(b) (West 2001) (emphasis added).
Liberally construed, the petition alleges that the retroactive application of § 498.004(b), as amended in 1995, increases the punishment attached to Petitioner's offense. "The imposition of a punishment more severe than that assigned by law when the criminal act occurred is a violation of the Constitution's ex post facto prohibition." Hallmark, 118 F.3d 1073, 1077 (citing Weaver, 450 U.S. at 30, 101 S.Ct. at 964). To amount to an ex post facto violation, a change must be both retroactive and to a prisoner's detriment. Id.
The 1995 amendment at issue here did not retroactively deny Petitioner's opportunity to reduce his sentence. Section 498.004(b), as amended in 1995, did not retract already accumulated good-time credits, nor did the Director deny Petitioner the opportunity to earn good-time credits. The only change from the 1995 amendment was that upon loss of good-time credits because of parole revocation or revocation of mandatory supervision, the director could no longer exercise discretion to restore those credits.
Likewise the 1995 amendment did not increase the punishment proscribed for Petitioner's offense. As noted above, Texas law has provided, at least since 1989, a possibility of losing earned good-time credits because of parole revocation and never having those credits restored. Moreover, since 1977, good-time credits have applied only to the eligibility for parole or mandatory supervision, and have not affected an inmate's sentence. See TEX. REV. CIV. STAT. ANN. art. 6181-1, § 4 (West 1988), currently TEX. GOV'T CODE ANN. § 498.003(a) (West 2001);see also Hallmark, 118 F.3d at 1079; Ex parte Montgomery, 894 S.W.2d 324, 328 (Tex.Crim.App. 1995). Once an inmate is paroled or released to mandatory supervision the period of parole is equal to the maximum term for which the person was sentenced less the calendar time actually served on the sentence; good-time credits do not reduce a person's sentence.See TEX. CODE CRIM. P. ANN. art. 42.18, § 8 (West 1997), currently TEX. GOV'T CODE ANN. § 508.142(c) (West 2001) (effective Sept. 1,1997). Therefore, removing the director's discretion to restore forfeited good-time credits did not increase Petitioner's punishment.
"`[T]here is a critical difference between a diminution of the ordinary rewards for satisfactory performance of a prisoner sentence . . . and an increase in sanctions for future misbehavior. . . .'" Hallmark, 118 F.3d at 1079 (quoted case omitted). Because § 498.004(b) did not amount to an ex post facto violation, the District Court should deny Petitioner's request for restoration of the forfeited good-time credits.Cf. id. at 1077-79 (directive removing director's discretion to restore good-time credits forfeited due to disciplinary infractions did not violate ex post facto prohibition, although, under previous scheme, possibility existed that inmates would have such credits restored); Ex parte Hallmark, 883 S.W.2d 672 (Tex.Crim.App. 1994) (same).
In grounds one and four, Petitioner asserts that the parole certificate is void because it relinquishes his right to good-time and work-time credits in the event of revocation of parole or mandatory supervision. He further asserts that he signed the parole certificate under duress. These claims are patently frivolous.
RECOMMENDATION:
For the foregoing reasons, it is recommended that the petition for a writ of habeas corpus be summarily dismissed pursuant to Rule 4 of the Rules Governing Section 2254 Cases.
A copy of this recommendation will be transmitted to Petitioner.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant to Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten-day period may bar a de novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.