Henderson v. Davis
| Decision Date | 16 June 2017 |
| Docket Number | A-16-CV-1044-LY |
| Parties | ROGER WALLACE HENDERSON v. LORIE DAVIS |
| Court | U.S. District Court — Western District of Texas |
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 Magistrate Judges.
Before the Court are Petitioner's Application for Habeas Corpus Relief under 28 U.S.C. § 2254 (Document 1); Respondent's Answer (Document 8); and Petitioner's response (Document 14). Petitioner, proceeding pro se, has paid the filing fee for his application. For the reasons set forth below, the undersigned finds that Petitioner's application for writ of habeas corpus should be dismissed.
According to Respondent, the Director has custody of Petitioner pursuant to a judgment and sentence of the 21st Judicial District Court of Bastrop County, Texas in cause number 7976. Petitioner was charged with and pleaded guilty to burglary of a building. On July 29, 1993, pursuant to a plea bargain, the trial court sentenced Petitioner to 25 years' imprisonment.
On October 12, 2000, Petitioner was released on parole. His parole was revoked on October 4, 2004, and Petitioner was returned to prison. On March 29, 2011, Petitioner was released on parole. His parole was revoked on October 23, 2015. Petitioner did not receive street-time credit for the time he was on parole, because he did not meet his mid-point calculation dates.
Petitioner raises the following grounds for relief:
It is not clear whether Petitioner is also attempting to raise claims under 42 U.S.C. § 1983. He includes in his request for relief a demand for monetary damages. However, that request is barred by Heck v. Humphrey, 512 U.S. 477, 486-87 (1994).
Petitioner has not exhausted his claim that his parole officer was insubordinate when he initially charged Petitioner with failing to report and then later claimed Petitioner was being charged with failing to reschedule his appointment. Although Petitioner raised this claim in his state application, Ex parte Henderson, Appl. No. 27,985-10, the Court of Criminal Appeals dismissed themixed petition for failure to exhaust his administrative remedies. Petitioner filed a subsequent state application. Ex parte Henderson, Appl. No. 27,985-11. However, he did not challenge the revocation of his parole in that application. Rather, he only challenged the failure to credit him with street time and the failure to restore his good time credits.
Petitioner's unexhausted claim is procedurally barred. A subsequent state application for habeas corpus on Petitioner's unexhausted issue would be futile as it would be dismissed pursuant to TEX. CODE CRIM. PROC. ANN. art. 11.07, § 4 as an abuse of the writ. When a state court decision rests on a state law ground that is independent of a federal question and adequate to support the judgment, federal courts lack jurisdiction to review the merits of the case. Coleman v. Thompson, 501 U.S. 722, 729 (1991). In order for a claim of procedural default to preclude federal review of a habeas petitioner's claim, the last state court issuing a reasoned decision must have clearly and unequivocally relied upon the procedural default as an independent and adequate ground for denying relief. Harris v. Reed, 489 U.S. 255, 262 (1989). Additionally, even though a claim has not been reviewed by the state courts, this Court may find that claim to be procedurally barred. Coleman, 501 U.S. at 735. The general rule that a state court must explicitly apply a procedural bar to preclude federal review does not apply to those cases where a petitioner has failed to exhaust his state court remedies and the state court to which he would be required to present his unexhausted claims would now find those claims to be procedurally barred. Id. at n.1. However, a petitioner can still obtain federal habeas review on a claim denied by the state court on the grounds of procedural default if he can show cause and actual prejudice for his procedural default or that a failure to address the merits of the federal claim would result in a miscarriage of justice. Moore v. Roberts, 83 F.3d 699, 702 (5th Cir. 1996), citing Coleman, 501 U.S. at 750.
Petitioner has failed to show cause and actual prejudice for his procedural default and has made no showing that a failure to address the merits of the federal claim would result in a miscarriage of justice. Therefore, Petitioner is barred from raising his unexhausted claim.
To the extent Petitioner challenges the failure to grant him street-time credit after his 2004 revocation, his claim is successive. Petitioner filed a federal application for habeas corpus relief challenging the 2004 revocation of his parole on or about April 20, 2006. See Henderson v. Quarterman, No. A-06-CV-290-LY (W.D. Tex.). The Court denied the application on December 18, 2006. Petitioner could have raised his street-time credit claim regarding the 2004 revocation of his parole in his 2006 application.
Title 28 U.S.C. § 2244(b) provides before a second or successive application for writ of habeas corpus is filed in the district court, an applicant must move in the appropriate court of appeals for an order authorizing the district court to consider the application. 28 U.S.C. § 2244(b)(3). Petitioner has not obtained prior approval to file a successive habeas corpus application. Pursuant to § 2244(b), Petitioner's application for habeas corpus relief, to the extent he challenges the denial of street time credit after his 2004 revocation, is therefore successive and should be dismissed. See United States v. Fulton, 780 F.3d 683 (5th Cir. 2015) ().
Petitioner appears to have exhausted his state court remedies with respect to his claim for street-time credit after his 2015 revocation. Petitioner raised this claim in a state application for writof habeas corpus. The Texas Court of Criminal Appeals denied the application on the merits. Ex parte Henderson, Appl. No. 27,985-11. Therefore, the scope of this Court's review is determining whether the adjudication of Petitioner's claim by the state court either (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. See 28 U.S.C. § 2254(d).
Petitioner is not entitled to street-time credit after his 2015 revocation.1 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 (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 (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 beingforced to serve more than his 25-year sentence. Petitioner violated the terms of his supervision, and as a result, lost any credit for the time he spent on parole.
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 (March 8, 1993) 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 § 14(a) (Vernon 1992) (currently TEX. GOV'T CODE ANN. § 508.283(b) (West 2016). Accordingly, Petitioner was never entitled...
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