Todd v. Thaler

Filing 13

REPORT AND RECOMMENDATIONS; RECOMMENDS that Petitioner's 1 Application for Writ of Habeas Corpus be Dismissed With Prejudice as Time-Barred... Alternatively Recommends that Petitioner's Applicaiton for Writ of Habeas Corpus be Denied. FUTHER RECOMMENDS Denial of Certificate of Appealability. Signed by Judge Andrew W. Austin. (td)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
JOHN TODD,
V.
RICK THALER, Director, Texas Dept. of
Criminal Justice- Correctional Institutions
Division,

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A-12-CA-048-SS

REPORT AND RECOMMENDATION
OF UNITED STATES MAGISTRATE JUDGE
TO:

THE HONORABLE SAM SPARKS
UNITED STATES DISTRICT JUDGE
The Magistrate Judge submits this Report and Recommendation to the District Court

pursuant to 28 U.S.C. §636(b) and Rule 1(e) of Appendix C of the Local Court Rules of the United
States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to
United States Magistrates, as amended, effective December 1, 2002.
Before the Court are Petitioner’s Application for Habeas Corpus Relief under 28 U.S.C.
§ 2254 (Document 1) and Respondent’s Answer (Document 12). Petitioner, proceeding pro se, has
been granted leave to proceed in forma pauperis. For the reasons set forth below, the undersigned
finds that Petitioner’s application for writ of habeas corpus should be dismissed. Alternatively, the
undersigned finds that Petitioner’s application should be denied.
I. STATEMENT OF THE CASE
A.

Petitioner’s Criminal History
According to Respondent, the Director has custody of Petitioner pursuant to a judgment and

sentence of the 167th Judicial District Court of Travis County, Texas. Petitioner was convicted of
burglary of a building and was sentenced to ten years in prison on September 15, 1988. Petitioner

does not challenge his holding conviction. Rather, Petitioner argues he was wrongfully denied
“street time” sentence credits upon his return to TDCJ custody as a parole violator.
Petitioner was released on parole on October 24, 1989. A warrant initiating parole revocation
proceedings was issued on January 23, 1990. The warrant was not executed until January 5, 2008.
Following a parole revocation hearing, on February 19, 2008, the hearing officer concluded that
Petitioner had violated four conditions of his parole. Consequently, Petitioner’s parole was revoked
on February 28, 2008. Respondent asserts Petitioner’s return to TDCJ custody caused him to forfeit
eighteen years, two months, and eleven days of “street time” accrued during his release on parole.
Petitioner filed a time dispute resolution (“TDR”) form with the Classification and Records
Department (“CRD”) of TDCJ on March 4, 2009. The CRD responded on August 28, 2009, that
there was no error in Petitioner’s time calculation.
On April 28, 2010, Petitioner filed an application for state writ of habeas corpus, asserting
a time credit dispute related to his parole revocation. Ex parte Todd, Appl. No. 74,148-01 at 8. The
Texas Court of Criminal Appeals denied the application without written order on the findings of the
trial court without a hearing on June 30, 2010. Id. at cover.
On November 10, 2011, Petitioner filed a second application for state writ of habeas corpus,
again asserting a time credit dispute related to his parole revocation. Ex parte Todd, Appl. No.
74,148-02 at 6. The Texas Court of Criminal Appeals dismissed the application pursuant to Section
501.0081(b)-(c) of the Texas Government Code on December 21, 2011.1

A Texas prison inmate may not file an application for a writ of habeas corpus in state court
in order to exhaust his state habeas corpus remedies regarding time credit disputes until he has
complied with the requirements of Texas Government Code § 501.0081, requiring him to first file
a time credit dispute resolution form with prison officials. The Texas Court of Criminal Appeals will
dismiss any application for a writ of habeas corpus about time credit issues where an inmate failed
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B.

Exhaustion of State Court Remedies
Respondent does not contest that Petitioner has exhausted his state court remedies regarding

the claims brought in this application. A review of the state court records submitted by Respondent
shows that Petitioner has properly raised these claims in previous state court proceedings. However,
Respondent does argue Petitioner’s application is time-barred.
II. DISCUSSION AND ANALYSIS
A.

Statute of Limitations
The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) establishes a one-

year statute of limitations for state inmates seeking federal habeas corpus relief. See 28 U.S.C.
§ 2244(d). That section provides, in relevant part:
(d)(1) A 1-year period of limitation shall apply to an application for a writ of habeas
corpus by a person in custody pursuant to the judgment of a State court. The
limitation 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 State action;
(C) the date on which the constitutional right asserted was initially recognized
by the Supreme Court, if the 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.

to comply with the statute. Ex parte Shepherd, 65 S.W.2d 673, 674 (Tex. Crim. App. 2002); Ex
parte Stokes, 15 S.W.3d 532 (Tex. Crim. App. 2000).
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(2) The time during which a properly filed application for State post-conviction or
other collateral review with respect to the pertinent judgment or claim is pending
shall not be counted toward any period of limitation under this subsection.
Subsection 2244(d)(1)(D) governs the timeliness of claims predicated on parole decisions.
Goodwin v. Dretke, 118 F. App’x 817, 818 (5th Cir. 2004). The limitations period begins on “the
date on which the factual predicate of the claim or claims presented could have been discovered
through the exercise of due diligence.” § 2244(d)(1)(D). Petitioner could have discovered the
factual predicate of his claims on February 28, 2008, the date his parole was revoked. Therefore,
Petitioner had until February 28, 2009, to timely file his federal application. Petitioner did not
execute his federal application until December 30, 2011, more than two years after the limitations
period had expired. Petitioner’s time-credit dispute filed March 4, 2009, and his two state
applications for habeas corpus relief filed April 28, 2010, and November 10, 2011, did not operate
to toll the limitations period, because they were filed after the limitations period had already expired.
Scott v. Johnson, 227 F.3d 260, 263 (5th Cir. 2000).
The record does not reflect that any unconstitutional state action impeded Petitioner from
filing for federal habeas corpus relief prior to the end of the limitations period. Furthermore,
Petitioner has not shown that he did not know the factual predicate of his claims earlier. Finally, the
claims do not concern a constitutional right recognized by the Supreme Court within the last year
and made retroactive to cases on collateral review. Accordingly, Petitioner’s application should be
dismissed as time-barred.
B.

The Claims Lack Merit
Alternatively, Petitioner’s application should be denied. The Supreme Court recently had

the opportunity to summarize the basic principles that have grown out of the Court’s many cases
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interpreting the 1996 Antiterrorism and Effective Death Penalty Act. See Harrington v. Richter, –
U.S. –, 131 S. Ct. 770, 783-85 (2011). The Court noted that the starting point for any federal court
in reviewing a state conviction is 28 U.S.C. § 2254, which states in part:
An application for 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 the adjudication of
the claim–
(1)

resulted in a decision that was contrary to, or involved an
unreasonable application of, clearly established Federal law, as
determined by the Supreme Court of the United States; 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 proceeding.

28 U.S.C. § 2254(d). The Court noted that “[b]y its terms § 2254(d) bars relitigation of any claim
‘adjudicated on the merits’ in state court, subject only to the exceptions in §§ 2254(d)(1) and (d)(2).”
Harrington, 131 S. Ct. at 784.
One of the issues Harrington resolved was “whether § 2254(d) applies when a state court’s
order is unaccompanied by an opinion explaining the reasons relief has been denied.” Id. Following
all of the Courts of Appeals’ decisions on this question, Harrington concluded that the deference due
a state court decision under § 2554(d) “does not require that there be an opinion from the state court
explaining the state court’s reasoning.” Id. (citations omitted). The Court noted that it had
previously concluded that “a state court need not cite nor even be aware of our cases under
§ 2254(d).” Id. (citing Early v. Packer, 537 U.S. 3, 8 (2002) (per curiam)). When there is no
explanation with a state court decision, the habeas petitioner’s burden is to show there was “no
reasonable basis for the state court to deny relief.” Id. And even when a state court fails to state

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which of the elements in a multi-part claim it found insufficient, deference is still due to that
decision, because “§ 2254(d) applies when a ‘claim,’ not a component of one, has been adjudicated.”
Id.
As Harrington noted, § 2254(d) permits the granting of federal habeas relief in only three
circumstances: (1) when the earlier state court’s decision “was contrary to” federal law then clearly
established in the holdings of the Supreme Court; (2) when the earlier decision “involved an
unreasonable application of” such law; or (3) when the decision “was based on an unreasonable
determination of the facts” in light of the record before the state court. Id. at 785 (citing 28 U.S.C.
§ 2254(d); Williams v. Taylor, 529 U.S. 362, 412, 120 S. Ct. 1495, 1523 (2000)). The “contrary to”
requirement “refers to the holdings, as opposed to the dicta, of . . . [the Supreme Court’s] decisions
as of the time of the relevant state-court decision.” Dowthitt v. Johnson, 230 F.3d 733, 740 (5th Cir.
2000) (quotation and citation omitted).
Under the “contrary to” clause, a federal habeas court may grant the writ if the state
court arrives at a conclusion opposite to that reached by . . . [the Supreme Court] 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.
Id. at 740-41 (quotation and citation omitted). Under the “unreasonable application” clause of
§ 2254(d)(1), a federal court may grant the writ “if the state court 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.” Id. at 741 (quotation and citation omitted). The provisions of
§ 2254(d)(2), which allow the granting of federal habeas relief when the state court made an
“unreasonable determination of the facts,” are limited by the terms of the next section of the statute,
§ 2254(e). That section states that a federal court must presume state court fact determinations to

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be correct, though a petitioner can rebut that presumption by clear and convincing evidence. See 28
U.S.C. § 2254(e)(1). But absent such a showing, the federal court must give deference to the state
court’s fact findings. Id.
1.

Street-Time Credits

Petitioner argues he is entitled to credit for the time he spent on parole, also known as “street
time.” The law in this Circuit firmly establishes that time spent on parole or mandatory supervision
does not operate to reduce the sentence of a parole or mandatory supervision violator returned to
prison. The courts have consistently held that by violating parole or mandatory supervision a
prisoner forfeits all credit of good conduct time accumulated prior to release and all credit for time
on parole or mandatory supervision before the violation. See Cortinas v. United States Parole
Comm’n, 938 F.2d 43 (5th Cir. 1991); Munguia v. United States Parole Comm’n, 871 F.2d 517, 521
(5th Cir.), cert. denied, 493 U.S. 856, 110 S. Ct. 161 (1989); United States v. Newton, 698 F.2d 770,
772 (5th Cir. 1983); Starnes v. Cornett, 464 F.2d 524 (5th Cir.), cert. denied, 409 U.S. 987, 93 S. Ct.
341 (1972); Betts v. Beto, 424 F.2d 1299 (1970). Thus, Petitioner has no federal constitutional right
to reduction of his sentence for time spent on parole. Additionally, the Court notes parole and
mandatory supervision conditions are not additional to, but rather part of, the original sentence. See
Coronado v. United States Board of Parole, 540 F.2d 216, 218 (5th Cir. 1976); Sturgis v. United
States, 419 F.2d 390 (5th Cir. 1969). Petitioner is not being forced to serve more than his ten-year
sentence. Petitioner violated the terms of his supervision, and as a result, lost any credit for the time
he spent on parole.

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Petitioner is also not entitled to his street-time credit under Texas law. The Texas parole
statute in effect at the time the controlling offense was committed (August 5, 1988) provides in
relevant part:
When a person’s parole, mandatory supervision, or conditional pardon is revoked,
that person may be required to serve the portion remaining of the sentence on which
he was released, such portion remaining to be calculated without credit for the time
from the date of his release to the date of revocation.
TEX . CODE CRIM . PROC. art. 42.18 § 15(a) (West 1988) (currently TEX . GOV ’T CODE ANN .
§ 508.156(e) (West 2012). Accordingly, Petitioner was never entitled to receive a reduction of his
sentence for the time he spent on parole. In addition, Petitioner does not deny he received notice
prior to his release on parole that he would not receive credit for the time spent on parole if his
parole was revoked.
Finally, even under the Texas statute addressing street-time credit in effect at the time of
Petitioner’s revocation in 2008, Petitioner is not entitled to credit. That statute read in pertinent
part:
(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 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 to time equal to the
remaining portion of the sentence on the date of issuance of the warrant or
citation.

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TEX . GOV ’T CODE ANN . § 508.283(West 2008). Under this section, Petitioner would have been
entitled to credit for street time if on the date his warrant issued, he was “subject to a sentence the
remaining portion of which [was] less than the amount of time from the date of the person’s release
to the date of issuance of the warrant or summons.” According to Respondent, Petitioner’s midpoint
calculation date was March 18, 1994. Because the pre-revocation warrant for Petitioner’s arrest was
issued on January 23, 1990, Petitioner failed to make it to his midpoint calculation date. As a result,
Petitioner is not entitled to receive street-time credit under Section 508.283. Having independently
reviewed the entire state court record, this Court finds nothing unreasonable in the state court’s
application of clearly established federal law or in the state court’s determination of facts in light of
the evidence.
III. RECOMMENDATION
It is recommended that Petitioner’s application for writ of habeas corpus be dismissed with
prejudice as time-barred. It is alternatively recommended that Petitioner’s application for writ of
habeas corpus be denied.
IV. CERTIFICATE OF APPEALABILITY
An appeal may not be taken to the court of appeals from a final order in a habeas corpus
proceeding “unless a circuit justice or judge issues a certificate of appealability.” 28 U.S.C.
§ 2253(c) (1)(A). Pursuant to Rule 11 of the Federal Rules Governing Section 2254 Cases, effective
December 1, 2009, the district court must issue or deny a certificate of appealability when it enters
a final order adverse to the applicant.
A certificate of appealability may issue only if a petitioner has made a substantial showing
of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). The Supreme Court fully explained
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the requirement associated with a “substantial showing of the denial of a constitutional right” in
Slack v. McDaniel, 529 U.S. 473, 484, 120 S. Ct. 1595 (2000). In cases where a district court
rejected a petitioner’s constitutional claims on the merits, “the petitioner must demonstrate that
reasonable jurists would find the district court’s assessment of the constitutional claims debatable
or wrong.” Id. “When a district court denies a habeas petition on procedural grounds without
reaching the petitioner’s underlying constitutional claim, a COA should issue when the petitioner
shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim
of the denial of a constitutional right and that jurists of reason would find it debatable whether the
district court was correct in its procedural ruling.” Id.
In this case, reasonable jurists could not debate the dismissal or denial of the Petitioner’s
section 2254 petition on substantive or procedural grounds, nor find that the issues presented are
adequate to deserve encouragement to proceed. Miller-El v. Cockrell, 537 U.S. 322, 327, 123 S. Ct.
1029 (2003) (citing Slack, 529 U.S. at 484). Accordingly, it is respectfully recommended that the
Court shall not issue a certificate of appealability.
V. OBJECTIONS
The parties may file objections to this Report and Recommendation. A party filing
objections must specifically identify those findings or recommendations to which objections are
being made. The District Court need not consider frivolous, conclusive, or general objections.
Battles v. United States Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987).
A party’s failure to file written objections to the proposed findings and recommendations
contained in this Report within fourteen (14) days after the party is served with a copy of the Report
shall bar that party from de novo review by the district court of the proposed findings and
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recommendations in the Report and, except upon grounds of plain error, shall bar the party from
appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the
district court. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150-153, 106 S. Ct.
466, 472-74 (1985); Douglass v. United Servs. Auto. Assoc., 79 F.3d 1415 (5th Cir. 1996)(en banc).
To the extent that a party has not been served by the Clerk with this Report and
Recommendation electronically, pursuant to the CM/ECF procedures of this District, the Clerk is
ORDERED to mail such party a copy of this Report and Recommendation by certified mail, return
receipt requested.
SIGNED this 30th day of May, 2012.

_____________________________________
ANDREW W. AUSTIN
UNITED STATES MAGISTRATE JUDGE

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