Williams v. Davis

Filing 21

MEMORANDUM OPINION AND ORDER denying 12 MOTION to Abate, denying 20 MOTION to Stay, granting 16 MOTION for Summary Judgment with Brief in Support. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)

United States District Court
Southern District of Texas

ENTERED
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

ALFRED DUANE WILLIAMS,
TDCJ #593465,
Petitioner,

v.
LORIE DAVIS, Director,
Texas Department of Criminal
Justice - Correctional
Institutions Division,
Respondent.

§
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§
§

March 15, 2018
David J. Bradley, Clerk

CIVIL ACTION NO. H-17-2807

MEMORANDUM OPINION AND ORDER

Alfred Duane Williams (TDCJ #593465) has filed a Petition for
a Writ of Habeas Corpus By a Person in State Custody ("Petition")
(Docket Entry No. 1) to challenge the calculation of his sentence.
Respondent Lorie Davis has filed a Motion for Summary Judgment With
Brief

in

arguing

Support
that

the

("Respondent's
claims

statute of limitations.

are

MSJ")

barred by

(Docket
the

Entry

governing

No.

16) ,

one-year

Although the court granted Williams an

extension of time, he has not filed a response.

Instead, Williams

has filed a Motion to Stay and Abate Habeas Corpus Proceedings
(Docket Entry No.

12)

and a Motion to Abort Extension of Time

Motion and Instead Stay and Abate Entire Habeas Corpus Proceeding
(Docket Entry No. 20), requesting leave to return to state court

and raise additional claims.

After considering the pleadings, the

state court records, and the applicable law, the court will grant
Respondent's

MSJ

and

will

dismiss

this

case

for

the

reasons

explained below.

I.

Background

Williams is currently incarcerated in the Texas Department of
Criminal Justice - Correctional Institutions Division ("TDCJ") as
the

result

Harris

of

County

a

conviction

Cause

No.

that

was

564636. 1

entered
Williams

against

in

charged

was

him

by

indictment with delivery of a controlled substance -- cocaine
and the state enhanced that indictment for purposes of punishment
with allegations

that Williams

had at

convictions for drug trafficking. 2
plea,

least

two

guilty

as

charged

and

felony

After Williams entered a guilty

the 174th District Court for Harris County,

Williams

prior

sentenced

him

Texas,
to

25

found
years'

imprisonment on July 26, 1991. 3
Williams does not complain of the validity of his conviction.
Instead,

Williams

challenges

the

calculation

of

the

25-year

sentence he received following his release from prison onto the
form of parole known as mandatory supervision and his return to

1

Petition, Docket Entry No. 1, p. 2.

2

Indictment, Docket Entry No. 17-4, p. 47.

3

Judgment on Plea of Guilty or Nolo Contendere Before CourtWaiver of Jury Trial, Docket Entry No. 17-4, p. 55.
-2-

prison following the revocation of his supervised release. 4
following

chronology

reflects

that

Williams

was

released

The
from

prison onto mandatory supervision and returned to TDCJ on three
occasions.
On January 6, 1995, Williams was released on parole for the
first time following his 1991 conviction in Cause No. 564636. 5

A

pre-revocation warrant issued for Williams on February 7, 2002, and
his parole was revoked shortly thereafter on March 25, 2002. 6
his return to TDCJ on April 18,

2002,

Upon

officials determined that

Williams was not entitled to credit for time spent out of custody
"street-time

(i.e.,

§ 508.283 (c)

credit")

7

pursuant

to

Tex.

Gov' t

Code

because the remaining portion of his sentence was

greater than the

time he had spent on parole. 8

As a

result,

4

Williams has not been convicted of an offense listed in Tex.
Gov't Code§ 508.149(a) and, as a result, he is eligible for early
release on the form of parole known as mandatory supervision.
Parole and mandatory supervision are separate forms of early
release in Texas, with different criteria for eligibility.
See
Tex. Gov't Code §§ 508.145,
508.147,
508.149. Because the
distinction does not make a difference in this case, the court uses
the terms parole and mandatory supervision interchangeably in this
Opinion.
5

Affidavit of Charley Valdez
Entry No. 17-3, p. 67.
6

("Valdez

Affidavit"),

Docket

Id.

7

See Ex parte Spann, 132 S.W.3d 390, 392 n.2 (Tex. Crim. App.
2004)
("Street-time credit refers to calendar time a person
receives towards his sentence for days spent on parole or mandatory
supervision.") .
8

Valdez Affidavit, Docket Entry No. 17-3, p. 67.
-3-

Williams forfeited 5 years,

8 months, and 26 days of street-time

credit towards his sentence. 9
On December 22, 2004, Williams was released on parole a second
time on the sentence that he received in Cause No. 564636. 10
several

pre-revocation

warrants

for

Williams

were

withdrawn, his parole was revoked on May 30, 2007. 11

After

issued

and

When Williams

returned to TDCJ on July 5, 2007, officials determined once again
that
§

he

was

not

508.283(c) . 12

eligible

for

street-time

credit

pursuant

to

Although Williams was given a substantial amount

of credit for time that he spent in jail, he forfeited 1 year, 8
months, and 19 days of street-time credit. 13
Williams was released on parole a third time on May 23, 2012. 14
A pre-revocation warrant
executed

on

that

date

Harris County Jail. 15

issued on December 10,

while

Williams

was

in

2013,
custody

and was
at

the

After his parole was revoked Williams was

transferred from a substance abuse treatment facility to TDCJ on
October 30, 2014. 16

9

Williams received credit for the time he spent

Id.

lord.
11

Id. at 67-68.

12

Id.

13

Id.

14

Id.

at 68.

15Id.
16

Id.
-4-

in jail, but forfeited 1 year, 6 months, and 17 days of street-time
credit pursuant to § 508.283 (c) . 17
The current calculation of the sentence that Williams received
in Harris

County Cause No.

564636

shows

that,

with credit for

"calendar flat time" served and credit that he has received for
good conduct ("good-time credit") , Williams has a projected release
date for purposes of mandatory supervision on April 26, 2018. 18

The

same calculation reflects that the sentence Williams received in
Cause No.

564636 now has a

"maximum discharge date"

of May 15,

2024. 19
On September 12, 2017, Williams executed the pending federal
habeas corpus Petition under 28 U.S.C. § 2254, 20 arguing that he is
entitled to relief in the form of immediate release from prison on
mandatory

supervision

because

prison

officials

calculated his sentence after each parole revocation. 21

improperly
Williams

contends that officials improperly denied him street-time credit
following each of his parole revocations in 2002, 2007, and 2014,
by denying him street-time credit through the application of a
statute, Tex. Gov't Code§ 508.283(c), which was not in effect when

17Id.
18

I d. at 6 8 , 6 9 .

19

Id.

20

Petition, Docket Entry No. 1, p. 10.

21

Id.

at 68.

at 6.
-5-

he

committed his

underlying

offense

in

1990. 22

As

a

result,

Williams argues that officials have calculated his release date in
violation of the Ex Post Facto Clause and improperly extended the
discharge date for the sentence that he received in Harris County
Cause No. 564636. 23
The respondent argues
because

it

is

limitations. 24

barred
Williams,

by

that the Petition must be dismissed
the

governing

one-year

statute

who has not filed a response,

of

asks the

court to stay and abate this proceeding while he raises additional
claims in state court concerning the calculation of his sentence. 25
Because the court concludes that the Petition is untimely and lacks
merit, Williams has not demonstrated that a stay is available.
Rhines v. Weber, 125 S. Ct. 1528, 1535
stay and abeyance is available

(2005)

See

(explaining that a

"only in limited circumstances"

where the petitioner shows "good cause" for failure to exhaust is
claims in state court and the claims are not "plainly meritless").
Accordingly, the petitioner's motions to stay and abate this case
will be denied without further discussion.
II.
A.

Discussion

The Petition is Untimely
The Petition is governed by the Antiterrorism and Effective

Death Penalty Act of 1996 (the "AEDPA"), Pub. L. No. 104-132, 110
22Id.
23

Id.

at 6, 7.

24

Respondent's MSJ, Docket Entry No. 16, pp. 5-14.

25

See Docket Entry Nos. 12, 2 0.
-6-

Stat.

1214

(1996),

limitations on all
April 24, 1996.
April 24,
See

which
federal

established

a

one-year

statute

of

habeas corpus petitions filed after

Because the pending Petition was filed well after

1996, the one-year limitations period clearly applies.

Flanagan

v.

Johnson,

154

F.3d

196,

198

(5th

Cir.

1998)

(citation omitted) .
Because Williams challenges the calculation of his sentence
following

three

limitations

separate

period

parole

began

to

revocation
run

proceedings,

pursuant

to

28

the

U.S. C.

§ 2244(d) (1) (D) when the factual predicate of the claims presented
"could have been discovered through the exercise of due diligence."
See Goodwin v. Dretke, 150 F. App'x 295, 298, 2005 WL 2404791 (5th
Cir. 2005)

(per curiam)

(explaining that"[§ 2244(d) (1) (D)] governs

the timeliness vel non of the filing of claims predicated on parole
decisions").
that

Williams

As the chronology of this case reflects, the sentence
received

in Harris

County

Cause

No.

564636

was

recalculated each time his parole was revoked and he returned to
TDCJ on April 18,

2002,

July 5,

2007,

and October 30,

2014. 26

Because Williams knew or should have known that his sentence was
recalculated each time he returned to prison, each of these dates
triggered a one-year statute of limitations period that expired on
April 18, 2003, July 5, 2008, and October 30, 2015.

Therefore, the

federal habeas Petition executed by Williams on September 12, 2017,

26

Valdez Affidavit, Docket Entry No. 17-3, pp. 67-68.
-7-

is untimely as to each of his sentence calculations, and his claims
are barred from federal review unless an exception applies.
Under

28

U.S.C.

§

2244(d) (2),

"properly filed application for
collateral

review"

is

the

time

during

which

a

[s]tate post-conviction or other

pending

shall

not

limitations period on federal habeas review.

count

toward

the

The record shows that

Williams filed an application for state post-conviction review to
challenge the calculation of his sentence on June 1, 2016, 27 which
the Texas Court of Criminal Appeals dismissed for failure to comply
with state law on December 7, 2016. 28

This proceeding does not toll

the statute of limitations because it was filed well after the
limitations periods expired. 29

See Scott v. Johnson, 227 F.3d 260,

263 (5th Cir. 2000).

27

Application for a Writ of Habeas Corpus Seeking Relief From
Final Felony Conviction Under Code of Criminal Procedure, Article
11.07
("State Habeas Application"), Docket Entry No.
17-3,
pp. 6-22.
28

Action Taken on Writ No. 85,959-01, Docket Entry No. 17-1,

p. 1.
29

The respondent argues in the alternative that the State
Habeas Application submitted by Williams was not "properly filed"
for purposes of§ 2244{d) (2) because it was summarily dismissed for
failure to comply with state procedures found in Tex. Gov't Code
§ 501.0081 (b)- (c)
(requiring inmates to pursue all sentence
calculation claims with the TDCJ time credit dispute resolution
tribunal before seeking state habeas review) . See Respondent's MSJ
Docket No. 16, pp. 8-10. Because the Application was dismissed for
procedural reasons and not adjudicated on the merits,
the
respondent also argues that Williams did not exhaust available
state court remedies by presenting his claims in a procedurally
proper manner. See id. at 14-16. Because the Petition is untimely
and subject to dismissal for other reasons, the court does not
address these arguments.
-8-

Williams
equitable

does

not

exception

Therefore,

the

establish

applies

Petition

to

is

that
toll

barred

any

other

the
by

statutory or

limitations

period.

limitations.

More

importantly, Williams is not entitled to relief because his claims
are without merit for reasons discussed briefly below.
B.

The Petitioner is Not Entitled to Relief

Williams

contends

that

prison

officials

calculated

his

sentence in error following the revocation of his parole in 2002,
2007, and 2014, by denying him street-time credit pursuant to Tex.
Gov't Code§ 508.283(c), which was not in effect when he committed
the underlying offense in 1990. 30

Williams argues, therefore, that

his sentence has been calculated unlawfully in violation of the
Ex Post Facto Clause. 31
A state violates the Ex Post Facto Clause found in Article I,
Section 10 of the United States Constitution when it "imposes a
punishment for an act which was not punishable at the time it was
committed;
prescribed."

or

imposes
Weaver

(citations omitted).

v.

additional
Graham,

punishment

101

S.

Ct.

to
960,

that
964

then
(1981)

For an ex post facto violation to occur, the

following conditions must be met:

"(1) a law must be retrospective,

that is, it must apply to events occurring before its enactment, and
(2)

the new law must create a sufficient risk of increasing the

30

Petition, Docket Entry No. 1, p. 6.

31Id.

-9-

punishment attached to the defendant's crimes."
230

F.3d 688,

Corrections v.
omitted)).

692

(5th Cir.

Morales,

2000)

115 S.

Ct.

Warren v. Miles,

(citing California Dep't of
1597,

1603

(1995)

(citation

In other words, to amount to an ex post facto violation

a change in the law "must be both retroactive and to a prisoner's
detriment."

Hallmark v. Johnson, 118 F.3d 1073, 1077-78 (5th Cir.

1997).
The

current

version of

amended in 2001

Tex.

Gov' t

Code

§

508.283 (c)

was

to make certain parole violators eligible for

street-time credit if certain criteria were met:
If the parole [or] mandatory supervision
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 the issuance of
the warrant or citation.
Tex. Gov't Code

§

508.283(c).

Observing that this provision is

worded in "a confusing manner," the Texas Court of Criminal Appeals
has construed the statute to establish a two-prong test for the
purpose of determining whether a parole violator is entitled to
street-time credit:
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1.

If, on the SUMMONS [] date, the "remaining
portion" of Applicant's sentence is greater
than the time spent on parole, Applicant
receives no street-time credit for the time
spent on parole.

2.

If,
however,
on the
SUMMONS
date,
the
"remaining portion" of Applicant's sentence is
less than the time spent on parole, Applicant
receives street-time credit for the amount of
time spent on parole.

Ex parte Spann,

132 S.W.3d 390,

392-93

(Tex.

Crim.

App.

2004)

(footnote omitted, emphasis in original); see also Ex parte Keller,
173 S.W.3d 492, 494 (Tex. Crim. App. 2005)

(repeating the two-prong

test for street-time credit outlined in Spann) .
It was not until this version of§ 508.283(c) went into effect
in 2001 that parole violators in Texas had any right to street-time
credit upon the revocation of their supervised release.

See Spann,

132 S.W.3d at 393 (citing a former version of§ 508.283(c), which
previously

"prescribed

that

any parole

violator

forfeited

the

benefit of street-time credit"); see also Whitley v. Dretke, 111
F. App'x 222,

223,

2004 WL 1895117,

curiam)

("Before September 2001,

Pardons

and

Paroles

to

at *1

(5th Cir.

2004)

(per

Texas law allowed the Board of

disregard

accumulated while on release.") .

the

street

time

a

prisoner

Because there was no right to

street-time credit under the law in effect before 2001, Williams
cannot demonstrate that a retroactive change in the law applied to
his detriment or that an ex post facto violation occurred when he
was denied street-time credit pursuant to the amended version of
-11-

§

508.283(c).

See McGregor v. Quarterman, Civil No. G-07-397, 2008

WL 2465342, at *7
petitioner

(S.D. Tex. June 17, 2008)

failed

to

show

that

§

(concluding that the

508.283(c)

constituted

a

retroactive change to his detriment for purposes of an ex post
facto violation because street-time was "completely unavailable"
before that statute went into effect in 2001)

Absent a showing

that his sentence was calculated in violation of a constitutional
right, Williams is not entitled to relief.

For this reason, the

Petition will be denied and this action will be dismissed.
III.

Certificate of Appealability

Rule 11 of the Rules Governing Section 2254 Cases requires a
district court to issue or deny a certificate of appealability when
entering a

final

order that

is adverse

to

the petitioner.

A

certificate of appealability will not issue unless the petitioner
makes

"a substantial showing of the denial of a

right,"

28 U.S.C.

demonstrate

"that

§

2253 (c) (2),

reasonable
of

the

constitutional

which requires a petitioner to

jurists

would

constitutional

find

claims

the

court's

assessment

wrong."

Tennard v. Dretke, 124 S. Ct. 2562, 2565 (2004)

Slack v. McDaniel, 120 S. Ct. 1595, 1604 (2000)).

district

debatable

or

(quoting

Where denial of

relief is based on procedural grounds, the petitioner must show not
only that "jurists of reason would find it debatable whether the
petition states a valid claim of the denial of a constitutional
right," but also that they "would find it debatable whether the
-12-

district court was correct in its procedural ruling."

Slack, 120

S. Ct. at 1604.
A district court may deny a

certificate of appealability,

sua sponte, without requiring further briefing or argument.

See

Alexander v.

For

reasons set

Johnson,

211 F.3d 895,

forth above,

this

898

(5th Cir.

court concludes

that

2000).

jurists of

reason would not debate whether any procedural ruling in this case
was correct or whether the petitioner states a valid claim for
relief.

Therefore, a certificate of appealability will not issue.
IV.

Conclusion and Order

Accordingly, the court ORDERS as follows:
1.

Respondent's Motion for Summary Judgment
Entry No. 16) is GRANTED.

(Docket

2.

The Petition for a Writ of Habeas Corpus By a
Person in State Custody filed by Alfred Duane
Williams (Docket Entry No. 1) is DISMISSED with
prejudice.

3.

Petitioner's motions to stay and abate this
proceeding (Docket Entry Nos. 12, 20) are DENIED.

4.

A certificate of appealability is DENIED.

The Clerk shall provide a copy of this Memorandum Opinion and
Order to the parties.
SIGNED at Houston, Texas, on this the 15th day of March, 2018.

UNITED STATES DISTRICT JUDGE
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