Thompson v. Cockrell

• Decision Date: 23 August 2001
• Docket Number: No. 00-40820,00-40820
• Citation: 263 F.3d 423
• Parties: (5th Cir. 2001) FERNANDO THOMPSON, Petitioner-Appellant, v. JANIE COCKRELL, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee
• Court: U.S. Court of Appeals — Fifth Circuit

Page 423

263 F.3d 423 (5th Cir. 2001)

FERNANDO THOMPSON, Petitioner-Appellant, v. JANIE COCKRELL, Director, Texas Department of Criminal Justice, Institutional Division, Respondent-Appellee.

No. 00-40820

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

August 23, 2001

Appeal from the United States District Court for the Eastern District of Texas

Before EMILIO M. GARZA, PARKER, and DENNIS, Circuit Judges.

ROBERT M. PARKER, Circuit Judge:

Fernando Thompson appeals the district court's denial of his application for writ of habeas corpus under 28 U.S.C. § 2254. Thompson argues that he is entitled to calendar time for the period in which he was erroneously released from Texas prison and placed on mandatory supervision. Thompson also seeks reinstatement of the good time credits that he accrued before his release.

I. Facts

Fernando Thompson pleaded guilty to rape and aggravated rape of a child and was sentenced to concurrent twenty-year and thirty-year prison terms. The Texas district court erroneously gave Thompson credit for calendar time served beginning May 14, 1982 instead of October 27, 1982, the day Thompson actually began serving his sentence. Based on his accrued good time credits and calendar time, the Texas Department of Corrections released Thompson under mandatory supervision on September 9, 1993, 166 days early. Thompson violated the conditions of his release and returned to custody on February 2, 1995. After Thompson's revocation hearing, the Texas Board of Pardons and Parole denied Thompson credit against his sentence for the one year, four months, and twenty-three days he was at liberty. The Board also concluded that Thompson forfeited his good time credits he accrued before his release.

After pursuing his state remedies, Thompson filed an application under 28 U.S.C. § 2254 for writ of habeas corpus.¹ Thompson alleged that the Board should have reinstated his good time credits because he was prematurely released through no fault of his own. Respondent argued that Thompson's accrued good time credits were forfeited and that reinstatement of his credits was discretionary, not mandatory. The district court denied Thompson relief without addressing whether an erroneous release precludes forfeiture of calendar time and good time credits upon revocation of mandatory supervision. On appeal, we vacated the district court's judgment and remanded the matter for consideration of the affect of Thompson's erroneous release.

On remand, the district court, adopting the magistrate judge's recommendation, concluded that Thompson had not established a due process violation. We granted Thompson a certificate of appealibility and directed him to brief the due process implications concerning forfeiture of good time credits and denial of credit for the time spent at liberty due to his premature release.

II. Discussion

"In conducting habeas review, a federal court is limited to deciding whether a conviction violated the Constitution, laws, or treaties of the United States." Estelle v. McGuire, 502 U.S. 62, 68 (1991). We review the district court's findings of fact for clear error and review its conclusions of law de novo. See Beazley v. Johnson, 242 F.3d 248, 255 (5th Cir. 2001). Thompson argues that the Texas Board of Pardons and Paroles violated his right to due process under the Fourteenth Amendment by revoking the good time credits he accrued before his release and denying him calendar time for the duration of his mandatory supervision. Thompson's argument requires us to determine whether he has a liberty interest in his good time credits and calendar time.

Liberty interests emanate from either the Due Process Clause itself or from state law. See Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 460 (1989). Liberty interests arising from state law are "generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, nonetheless impose[] atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin v. Conner, 515 U.S. 472, 484 (1995) (citations omitted). Only those state-created substantive interests that "inevitably affect the duration of [a prisoner's] sentence" may qualify for constitutional protection. Id. at 487. See also Orellana v. Kyle, 65 F.3d 29, 31-32 (5th Cir. 1995).

Thompson cites Ex parte Morris, 626 S.W.2d 754 (Tex. Crim. App. 1982) (en banc), in support of his due process claim. In Morris, a Texas prisoner was erroneously released on mandatory supervision due to an error that occurred in Morris's inmate tracking form. The tracking form listed the date his sentence commenced as two years before the date he began serving time. See id. at 755. Morris spent slightly over a year on mandatory supervision before breaking the terms of his release. See id. The Texas Board of Pardons and Paroles revoked his mandatory supervised release and refused to reinstate Morris's good time credits. See id. The Board also refused to credit the time he spent on release as calendar time toward the remainder of his sentence. See id. The Texas Court of Criminal Appeals granted Morris's application for writ of habeas corpus. The court, relying on the Texas rule that a prisoner must not serve his sentence in installments, held that the time Morris spent during mandatory supervision should be credited as calendar time toward his sentence. See id. at 756-57. The court also held that Morris would have a constitutional liberty interest in his good time credits if the record reflected that Morris accrued good conduct time before his release. See id. The court based this conclusion on Wolff v. McDonnell, 418 U.S. 539 (1974), rather than the rule governing calendar time for erroneous release. See id.

We address Thompson's contentions regarding calendar time and good time separately.

A. Calendar Time

Under federal law, a prisoner does not receive credit towards his calendar time for time spent on parole if the prisoner violates the conditions of his release. See United States v. Newton, 698 F.2d 770, 772 (5th Cir. 1983); Starnes v. Connett, 464 F.2d 524 (5th Cir. 1972); Betts v. Beto, 424 F.2d 1299, 1300 (5th Cir. 1970). Likewise, Texas statutory law allows the Board of Pardons and Paroles to disregard the time a prisoner spends on mandatory supervision. See Tex. Gov't Code Ann. § 508.283(b).² The Texas and federal laws do not raise constitutional concerns. See Morrison v. Johnson, 106 F.3d 127, 129 n.1 (5th Cir. 1997). Thompson therefore does not have a liberty interest grounded in either a state law or the Due Process Clause itself that would require the Texas Department of Corrections to credit Thompson's accrued calendar time with the time he appropriately spent on mandatory supervision. Thompson argues, however, that the state's denial of his calendar time after his premature release violates his right to due process because he was not properly released in the first place.

The Due Process Clause of the Fourteenth Amendment prohibits state acts that exceed a prisoner's sentence in an unexpected manner. See Sandin, 515 U.S. at 484. See also Washington v. Harper, 494 U.S. 210, 221 (1990); Vitek v. Jones, 445 U.S. 480, 493 (1980); Meachum v. Fano, 427 U.S. 215, 225 (1976). Requiring Thompson to complete the remainder of his sentence after his premature release does not exceed his sentence in an unexpected manner. Hence, the Due Process Clause does not by itself prohibit states from denying prisoners calendar time after an erroneous release. See Wooten v. Wilkinson, 265 F.2d 211, 212 (1959). See also Piper v. Estelle, 485 F.2d 245, 246 (holding that due process is not violated when a state reincarcerates a prisoner who had not completed his sentence, as long as the state did not unequivocally waive interest in the prisoner). We therefore must look to Texas law to determine whether Thompson has a liberty interest in calendar time due to his premature release.

Thompson relies on the following rule restated in Ex Parte Morris: "A sentence must be continuous and a prisoner or inmate cannot be required to serve his sentence in installments, unless it is shown that a premature or unlawful release of the prisoner or inmate resulted or occurred through some fault on the part of the prisoner or inmate." See Morris, 626 S.W.2d at 757-58. See also Ex parte Millard, 48 S.W.3d 190 (Tex. Crim. App. 2001); Ex parte Hurd, 613 S.W.2d 742 (Tex. Crim. App. 1981); Ex parte Tarlton, 582 S.W.2d 155 (Tex. Crim. App. 1979); Ex parte Esquivel, 531 S.W.2d 339 (Tex. Crim. App. 1976). The law in Texas from the time of Thompson's offense to the present requires the State to credit Thompson for time after an erroneous release, so long as Thompson was not at fault. See Morris, 626 S.W.2d at 757. Texas law therefore grants Thompson a legal entitlement to calendar time during the period of his premature release.

In order for the legal interest conferred by Texas law to merit protection under the Fourteenth Amendment, Thompson's interest must amount to a "freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Sandin, 515 U.S. at 484 (citations omitted). Only deprivations of interests that "clearly impinge on the duration of confinement . . . will . . . qualify for constitutional 'liberty' status." See Orellana, 65 F.3d at 31-32.

By denying Thompson calendar time for his erroneous release, the Texas Board of Pardons and Paroles denied Thompson credit toward his sentence that he was entitled to receive under Texas law. The deprivation of calendar time inevitably affected the duration of Thompson's confinement. Cf. Bulger v. United States...