Fuhrman v. Dretke

• Decision Date: 10 March 2006
• Docket Number: No. 05-50413.,05-50413.
• Citation: 442 F.3d 893
• Parties: Michael Joseph FUHRMAN, Petitioner-Appellee, v. Doug DRETKE, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellant.
• Court: U.S. Court of Appeals — Fifth Circuit

442 F.3d 893

Michael Joseph FUHRMAN, Petitioner-Appellee, v. Doug DRETKE, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent-Appellant.

No. 05-50413.

United States Court of Appeals, Fifth Circuit.

March 10, 2006.

Raymond John Rigat (argued), Gilbride & Rigat, Clinton, CT, for Petitioner-Appellee.

Ana Jordan (argued), Postconviction Litigation Div., Austin, TX, for Respondent-Appellant.

Appeal from the United States District Court for the Western District of Texas.

Before JOLLY, BEAM¹ and BARKSDALE, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

The Texas Department of Criminal Justice ("TDCJ") appeals the district court's grant of Michael Joseph Fuhrman's Petition for Writ of Habeas Corpus, which alleged that Fuhrman was being held in custody in contravention of Texas's DNA Statute. The TDCJ contends that the district court's grant is barred by the law of the case doctrine and the mandate rule. Furthermore, the district court erred by failing to defer to the state's reasonable interpretation of the statute at issue. Because we agree that the grant of habeas corpus relief was error, we reverse and render judgment for the TDCJ.

I

Michael Joseph Fuhrman pled guilty to the felony of burglary of a building with intent to commit theft. On November 16, 1989, Fuhrman was sentenced to fifteen years of imprisonment in the TDCJ by the 263rd Judicial District Court of Harris County, Texas.² No direct appeal was taken.

In 1995, Texas enacted its DNA testing statute. See TEX. GOV'T CODE ANN. § 411.148 (1996). The statute provided that the TDCJ was to take DNA specimens from inmates who had been convicted of certain crimes, including those convicted of burglary of a habitation with intent to commit a felony other than theft. TEX. GOV'T CODE ANN. § 411.148(a) (1996); TEX. PENAL CODE ANN. § 30.02(d) (2003). The relevant section of the statute was amended in 1999 to include second degree burglary of a habitation as a qualifying offense. TEX. GOV'T CODE ANN. § 411.148(a) (1999); TEX. PENAL CODE ANN. § 30.02(c)(2) (2003).

On September 6, 2000, the TDCJ first attempted to take Fuhrman's DNA sample. Fuhrman refused to comply. The TDCJ cited as the qualifying offense a 1968 Georgia conviction of burglary of a habitation to which Fuhrman had admitted on his travel card. As a result of his refusal, and after disciplinary proceedings, Fuhrman was punished by revoking his good-time credits. This revocation changed Fuhrman's projected mandatory supervised release date. This pattern between Fuhrman and the TDCJ repeated itself over and over again. Fuhrman filed an application for a writ of habeas corpus, which was denied by the Texas Court of Criminal Appeals without written order on March 21, 2001. Fuhrman filed second and third applications, which were ultimately denied by the Texas Court of Criminal Appeals respectively, on February 6, 2002 without written order, and on April 6, 2005 without written order on the findings of the trial court without a hearing.

II

On May 11, 2001, Fuhrman filed an Application for Writ of Habeas Corpus under 28 U.S.C. § 2254 in the United States District Court for the Northern District of Texas, which ordered it transferred to the United States District Court for the Western District of Texas on May 16, 2001. Fuhrman raised ten claims. On January 10, 2003, the district court denied Fuhrman's federal Application, stating that his claims all lacked merit.

Fuhrman sought a certificate of appealability ("COA") from this court. On July 11, 2003, this court granted Fuhrman a COA on certain issues, vacated the district court's judgment, and remanded "for a definitive finding whether Fuhrman lost good-time credits in any disciplinary cases other than #20010015552 for refusing to submit a DNA specimen." Fuhrman v. Cockrell, 79 Fed.Appx. 614, 615 (5th Cir. 2003). We instructed that if the district court should find that Fuhrman had lost such good-time credits, the district court should

order the Respondent to brief the issues (1) whether Furhman [sic] is eligible for release to mandatory supervision and (2) whether his forfeiture of good-time credits contravenes § 411.148(d)'s provision that "[a]n inmate may not be held past a statutory release date if the inmate fails or refuses to provide a blood sample," and, if so, whether there are constitutional implications necessitating habeas relief.

Id. This court additionally held that "there is no indication that the Georgia offense of burglary of a habitation was not a DNA eligible offense, given that it involved conduct punishable under Texas Penal Code § 30.02(c)(2), which provides that the crime of burglary is a `felony of the second degree if committed in a habitation.'" Id. (quoting TEX. PENAL CODE ANN. § 30.02(c)(2) (Vernon 2002)).

After our remand, the district court issued its Reply to Remand Order Granting Movant 28 U.S.C. § 2254 Relief and a Final Judgment granting relief on January 13, 2005. The court held that Fuhrman lost a total of 1308 good-time credits solely based on his refusal to submit to DNA testing. The court further held that Fuhrman was eligible for mandatory supervised release, and that the TDCJ was in violation of TEX. GOV'T CODE ANN. § 411.148(d), which forbids holding a prisoner past his statutory release date for failure to submit to DNA testing. Last, the district court ruled that Fuhrman's Georgia burglary conviction did not, absent more, place him within the scope of Texas's DNA statute.

The TDCJ filed a Rule 59(e) Motion to Alter or Amend the Judgment, contending that Fuhrman is subject to the Texas DNA statute. The TDCJ further argued that forfeiting Fuhrman's good-time credits did not implicate due process rights because the term "statutory release date," as used in § 411.148(d), did not equate to a mandatory supervised release date. On February 10, 2005, the district court denied the motion, finding that the Georgia burglary conviction (the conviction relied on by the state) did not make Fuhrman eligible for DNA testing, and that "statutory release date" means "the date at which an inmate can be released taking into account his good time credits."

The TDCJ timely appeals the Final Judgment and the Order Denying Respondent's Emergency Motion Under Rule 59(e).

III

A

The TDCJ argues that the district court failed to properly respect the law of the case doctrine and the mandate rule when it decided that Fuhrman's Georgia conviction was not a qualifying offense for purposes of the Texas DNA statute. We agree.

The law of the case doctrine provides that "an issue of law or fact decided on appeal may not be reexamined either by the district court on remand or by the appellate court on a subsequent appeal." United States v. Becerra, 155 F.3d 740, 752 (5th Cir.1998) (quoting Ill. Cent. Gulf R.R v. Int'l Paper Co., 889 F.2d 536, 539 (5th Cir.1989)). Exceptions to the law of the case doctrine allow reexamination only if "(i) the evidence on a subsequent trial was substantially different, (ii) controlling authority has since made a contrary decision of the law applicable to such issues, or (iii) the decision was clearly erroneous and would work a manifest injustice." Becerra, 155 F.3d at 752-53 (quoting N. Miss. Commc'ns, Inc. v. Jones, 951 F.2d 652, 656 (5th Cir.1992)). The principles surrounding the law of the case doctrine "apply equally to the mandate rule, `which is but a specific application of the general doctrine of law of the case.'" United States v. Lee, 358 F.3d 315, 321 (5th Cir.2004). "Absent exceptional circumstances, the mandate rule compels compliance on remand with the dictates of a superior court and forecloses relitigation of issues expressly or impliedly decided by the appellate court." Id.; see also Becerra, 155 F.3d at 753 (The mandate rule is a corollary of the law of the case doctrine providing "that a lower court on remand must `implement both the letter and the spirit of the [appellate court's] mandate,' and may not disregard the `explicit directives' of that court." (alteration in original) (quoting Johnson v. Uncle Ben's, Inc., 965 F.2d 1363, 1370 (5th Cir.1992))). The "district court is not free to deviate from the appellate court's mandate." Becerra, 155 F.3d at 753 (quoting Barber v. Int'l Bhd. of Boilermakers, 841 F.2d 1067, 1070 (11th Cir.1988)). The district court may only deviate from the mandate if one of the exceptions to the law of the case doctrine applies. Becerra, 155 F.3d at 753.

This court mandated that the district court examine limited specific issues, none of which involved a determination regarding the Georgia conviction. We remanded "for a definitive finding whether Fuhrman lost good-time credits in any disciplinary cases other than # 20010015552 for refusing to submit a DNA specimen." Fuhrman, 79 Fed.Appx. at 615. We further directed that should the district court find that Fuhrman had lost certain good-time credits, the district court should

order the Respondent to brief the issues (1) whether Furhman [sic] is eligible for release to mandatory supervision and (2) whether his forfeiture of good-time credits contravenes § 411.148(d)'s provision that "[a]n inmate may not be held past a statutory release date if the inmate fails or refuses to provide a blood sample," and, if so, whether there are constitutional implications necessitating habeas relief.

Id. Further, this court stated that "there is no indication that the Georgia offense of burglary of a habitation was not a DNA-eligible offense, given that it involved conduct punishable under Texas Penal Code § 30.02(c)(2), which provides that the crime of burglary is a `felony of the second degree if committed in a habitation.'" Id. Thus, the district court's determination that Fuhrman's Georgia conviction was not a DNA-eligible offense was clearly a deviation from the specifics of this court's mandate, and it also improperly reexamined an issue decided by this court,...