Jones v. Stephens

Filing 31

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 20 Report and Recommendations. Signed by Judge Sam Sparks. (dm)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

r
2915

JUL

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P11 3:

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MICHAEL T. JONES,
Petitioner,
-vs-

Case No. A-14-CA-802-SS

WILLIAM STEPHENS,
Respondent.

ORDER
BE IT REMEMBERED on this day the Court reviewed the file in the above-styled cause, and

specifically Petitioner Michael T. Jones's Petition for Writ of Habeas Corpus [#1], the Report and

Recommendation of the United States Magistrate Judge [#20], Petitioner's Objection [#23],
Supplemental Objection [#24], and Second Supplemental Objection [#26] to the Report and

Recommendation, Petitioner's Motion for Certificate of Appealability [#27], and Petitioner's
Motions for Leave to File a Writ of Mandamus [##22, 28, 29].
All matters in this case were referred to United States Magistrate Judge Andrew Austin for

report and recommendation pursuant to 28 U.S.C. § 636(b) and Rule 1 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 Magistrate Judges. Jones is entitled to de novo review

of the portions of the Magistrate Judge's report to which he filed specific objections. 28 U.S.C.
§

636(b)(1). All other review is for plain error.

Starns

v.

Andrews,

524 F.3d 612, 617 (5th Cir.

2008). Nevertheless, this Court has reviewed the entire file de novo, and agrees with the Magistrate

Judge's recommendation.

I

Background
A.

Jones's Criminal History
Stephens avers he has lawful custody of Jones pursuant to two judgments and sentences of

the 331st Judicial District Court of Travis County, Texas. On April 9, 1986, a jury sentenced Jones
to 30 years' imprisonment following his open guilty plea to aggravated robbery with a deadly

weapon. On December 8, 2011, Jones was released from confinement and placed on mandatory
supervision. While on mandatory supervision, Jones was arrested for burglary of a building,
enhanced, and his mandatory supervision was revoked on October 3, 2013.

Following the

revocation, Jones forfeited a credit against his original sentence for the time he spent on mandatory
supervision, or "street-time credit," and his sentence expiration date was recalculated. Additionally,
on November 19, 2013, Jones was sentenced to two years' imprisonment for the burglary offense.
B.

Jones's Alleged Grounds for Relief
Jones does not challenge either of his convictions. Instead, Jones complains the change in

the expiration date of his sentence following his robbery conviction violates (1) the Double Jeopardy

Clause of the Fifth Amendment and (2) separation of powers.
C.

Exhaustion of Remedies
There is no dispute Jones has exhausted his state remedies. The record reflects the Texas

Court of Criminal Appeals denied Jones's application for habeas corpus relief without written order
on July 16, 2014.

1See Ross

See Exparte Jones,

v.

Cockrell, No. Civ. A.

Appl. No. WR-16,561-18 at cover [#12-14].

3:02-CV-1131-L, 2002 WL 31415979, at *2 (ND. Tex. Oct. 17, 2002)

(defining "street-time credit").

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Analysis
I.

Legal Standard
Federal habeas corpus relief is governed primarily by the Antiterrorism and Effective Death

Penalty Act of 1996, colloquially known as AEDPA. Section 2254 permits the granting of federal
habeas relief where a state court denies a prisoner's habeas claim in only three circumstances:
(1) when the state court's decision "was contrary to" clearly established federal law as decided by

the Supreme Court; (2) when the state court's 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. Harrington v. Richter,
U.S.C.

§

131 S. Ct. 770, 785 (2011) (citing 28

2254(d); Williams v. Taylor, 529 U.S. 362, 412 (2000)). The obligation to defer to state

court decisions created by § 2254(d) "does not require that there be an opinion from the state court

explaining the state court's reasoning"; in that scenario, deference remains afforded, and the habeas

petitioner has the burden to show there was "no reasonable basis for the state court to deny relief."

Harrington, 131 S. Ct. at 784.
II.

Application
As previously noted, Jones argues the recalculation of his sentence expiration date following

his burglary conviction violates (1) the Double Jeopardy Clause and (2) separation of powers.
Neither argument has merit.
First, the Court agrees with the Magistrate Judge that Jones's purported "double jeopardy"

complaint is, in reality, a complaint Jones has been denied street-time credit against his original
sentence, despite Jones's urging to the contrary. Jones's argument is rejected for two reasons:

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(1) under Texas law, having violated the terms of his mandatory supervision, Jones is no longer

entitled to street-time credit; and (2) Jones has no colorable constitutional claim.
Because revocation of Jones's mandatory supervision occurred in 2013, Texas Government
Code § 508 .283 controls the effect of the revocation on Jones's original sentence. Rhodes v.

Thaler,

713 F.3d 264,267 & n.17 (5th Cir. 2013) (citingExparteNoyola, 215 S.W.3d 862, 864 (Tex. Crim.

App. 2007) (Section 508.283 "applies to all revocations of parole and mandatory supervision that

occur on or after September 1, 2001.")). Section 508.283(b) provides:

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.
TEX. Gov"r

CODE § 508.283(b). Section 508.283 thus excludes from street-time credit an offender

described in § 508.149(a) whose parole or mandatorysupervision is revoked. Jones, who committed
aggravated robbery, is described in

§

508.149(a).

See

id.

§

508.149(a)(12) (describing an offender

convicted of aggravated robbery); State Court Records [#1 1-1] at 26 (Judgment on Jury Verdict of
Guilty) (stating Jones is convicted of "Aggravated Robbery with a Deadly Weapon to-wit: a

firearm," a "1st degree felony"). Because Jones violated the terms ofhis supervision by committing
a burglary, under

§

508.283(b), Jones lost his entitlement to street-time credit for the period of time

he spent under mandatory supervision.
Jones has not been subjected to double jeopardy. Mandatory supervision "does not add to
a prisoner's sentence but allows him to serve part

restrictions.

.

.

.

of it outside of prison subject to some

[T]he violation of those conditions may forfeit

conditional release." Coronado v. US. Bd.

ofParole,

.

.

.

credit for time spent on

540 F.2d 216,218 (5th Cir. 1976). "Couching

the attack in terms of the doublejeopardy clause does not change the result; conditions of mandatory

release are not additional to, but part of, [the offender's] original sentence." Id. An offender who
violates the terms of his parole or mandatory supervision "has no federal constitutional right to credit
on his sentence for time spent on parole." Ross, 2002 WL 31415979 at *2 (citing Newby v. Johnson,
81

F.3d 567, 569 (5th Cir. 1996); Betts

v.

Beto, 424 F.2d 1299, 1300 (5th Cir. 1970) (per curiam)).

Second, the Court agrees with the Magistrate Judge that Jones has not stated a federal
constitutional violation based on the separation-of-powers doctrine.

Jones argues the Texas

Department of Criminal Justice, in (properly) denying him street-time credit, has violated the
separation ofpowers. Jones's argument involves state branches of government; consequently, Jones
has failed to state a federal constitutional violation based upon separation of powers. See Sweezy
v.

New Hampshire, 354 U.S. 234, 255 (1957) ("[T]he concept of separation of powers embodied in

the United States Constitution is not mandatory in state governments."). Jones's second argument
is rejected.

Conclusion
Having independently reviewed the record, the Court finds nothing unreasonable in the state

court's application of clearly established federal law or in the state court's determination of the facts
in light of the evidence presented. Thus, the Court agrees with the Magistrate Judge's conclusion

Jones is not entitled to habeas relief.

An appeal may not be taken to the court of appeals from a final order in a proceeding under
§
§

2254 "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 Proceedings,

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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 movant has made a substantial showing of
the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). The Supreme Court fully explained the

requirement associated with a "substantial showing of the denial of a constitutional right" in Slack
v.

McDaniel, 529 U.S. 473, 484 (2000). In cases where a district court rejects a movant'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 of Jones's

§

2254 petition on

substantive or procedural grounds, nor find the issues presented are adequate to deserve
encouragement to proceed. Miller-El v. Cockrell, 537 U.S. 322, 327 (2003) (citing Slack, 529 U.S.
at 484)). Thus, a certificate of appealability shall not issue.

Accordingly:
IT IS ORDERED that Petitioner Michael T. Jones's Objections [##23, 24, 26] are

OVERRULED;
IT IS FURTHER ORDERED that the Report and Recommendation of the United

States Magistrate Judge [#20] is ACCEPTED;

IT IS FURTHER ORDERED that Petitioner Michael T. Jones's Petition for Writ

of Habeas Corpus [#1] is DENIED;
IT IS FURTHER ORDERED that a certificate of appealability is DENIED;
IT IS FINALLY ORDERED that Petitioner Michael T. Jones's Motion for Certificate

of Appealability [#27] and Motions for Leave to File Writ of Mandamus [##22, 28, 29] are
DISMISSED.
SIGNED this the

/1

day of July 2015.

(J

SAM SPARKS
UNITED STATES DISTRICT JUDGE

802

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ok ba.frm

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