Morrison v. Stephens
| Decision Date | 26 February 2015 |
| Docket Number | 2:11-CV-0254 |
| Parties | WILLIAM BURTON MORRISON, Petitioner, v. WILLIAM STEPHENS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent. |
| Court | U.S. District Court — Northern District of Texas |
Petitioner has filed an application for a federal writ of habeas corpus challenging the revocation of his parole and the failure to credit his sentence with the amount of time he served outside of prison while on parole, commonly called "street time." For the reasons hereinafter stated, the United States Magistrate Judge is of the opinion federal habeas corpus relief should be DENIED.
On May 29, 1980, petitioner was convicted by a jury of the felony offense of murder out of the 262nd Judicial District Court of Harris County, Texas, and was sentenced to a 30-year term of imprisonment in the Texas Department of Criminal Justice, Correctional Institutions Division. State v. Morrison, No. 310,634-A. The conviction was affirmed on July 15, 1982 by the Court of Appeals for the Tenth District of Texas. Morrison v. State, No. 10-81-093-CR. Petitioner does not challengethe murder conviction or his 30-year sentence in this proceeding.
Petitioner's sentence begin date was April 4, 1980 and after serving almost six (6) years in custody, the Texas Board of Pardons and Paroles granted petitioner release to parole on February 11, 1986. The Certificate of Parole set out Rules and General Conditions of Parole Release reflecting petitioner's parole was conditional and based upon the condition that he, inter alia, "[o]bey all municipal, county, state and federal laws" (Rule #2) and not own, possess, use, sell, or control, any firearm, prohibited weapon, or illegal weapon, or unlawfully carry any weapon, or use, attempt or threaten to use any tool, implement or object to cause or threaten to cause any bodily injury (Rule #5). The Certificate also stated:
BE IT FURTHER KNOWN THAT ANY VIOLATION OF SUCH CONDITIONS SHALL BE SUFFICIENT CAUSE FOR REVOCATION OF THIS PAROLE, AND THAT ALL TIME SERVED ON PAROLE SHALL BE FORFEITED.
On February 18, 1986, the conditions of release were explained to petitioner, he signed an agreement to abide by the parole conditions, and he was released to parole. At the time of his release to parole, petitioner had served 5 years, 10 months and 2 weeks of his 30-year sentence of confinement.1
On October 29, 2003, petitioner was arrested on a pre-revocation warrant. On April 19, 2004, the warrant was withdrawn and petitioner was released and continued on parole.2
On August 22, 2009, petitioner pled nolo contendre to an August 21, 2009 misdemeanor offense of Assault by Threat before a Liberty County, Texas Justice of the Peace and was fined $400. On August 28, 2009, a pre-revocation warrant issued for petitioner's arrest for violations of theconditions of his parole, to wit: for committing the offense of Assault by Threat on August 21, 2009 (the misdemeanor to which petitioner had pled no contest), for using a weapon during the Assault by Threat offense on August 21, 2009, and for committing the offense of Aggravated Assault on August 28, 2009. This revocation warrant was executed on August 28, 2009 and petitioner was arrested and placed in the Liberty County Jail.
On September 23, 2009, a parole revocation hearing was held. After hearing testimony, the hearing officer found petitioner violated the conditions of his parole by violating Rule #2 requiring petitioner to obey all municipal, county, state and federal laws by committing both the offense of Assault by Threat and the offense of Aggravated Assault. The hearing officer found petitioner did not violate Rule #5 by using a weapon during the assault by threat offense.
After the hearing officer made his violation findings, petitioner's attorney testified petitioner was a business owner in the community, that his fees were current, that his residence/marital situation was satisfactory, and that he had adjusted well, and requested the Board continue his parole, place him in an Intermediate Sanction Facility (ISF)3 or impose electronic monitoring. Petitioner's parole officer testified petitioner had done well under her supervision and recommended petitioner's parole not be revoked but be continued with modified conditions. The hearing officer, however, recommended petitioner's parole be revoked. On September 30, 2009, a reviewer agreed with the hearing officer and recommended petitioner's parole be revoked. On October 1, 2009, the Board of Pardons and Paroles (the Board) revoked petitioner's parole. On February 17, 2010, petitioner was returned toTDCJ-CID to serve the remainder of his 30-year sentence assessed in 1980.4 After the revocation of his parole and return to TDCJ-CID, petitioner lost all "street time" spent on parole, i.e., 23 years and 20 days.
On March 9, 2010, petitioner filed a time credit dispute resolution form with the TDCJ Classification and Records Division seeking the reinstatement of his "street time." On April 21, 2010, prior to a decision of the time dispute resolution, petitioner filed a pro se state application for a writ of habeas corpus alleging TDCJ-CID erred in failing to credit his sentence with the "street time" he spent on parole and arguing that once given flat time credit for his "street time" that his sentence had expired on April 4, 2010. In re Morrison, No. 73,988-01. On May 10, 2010, the State filed an answer noting Texas case law required "[a]ll persons seeking time credit relief in an application filed pursuant to Art. 11.07, § 3, filed in the district clerk's office on or after January 1, 2000, must show that a written administrative decision has been obtained, or that he is within 180 days of release according to current department records, or must allege that he sought resolution of his credit complaint more than 180 days before the applidcation was filed." Ex parte Stokes, 15 S.W.3d 532, 533 (Tex.Crim.App. 2000) (citing Tex. Gov't Code Ann. § 501.0081 (Vernon Supp. 2002)). The State argued petitioner had not met any of the statutory predicates for raising a time credit complaint. On May 11, 2010, the state trial court entered findings of fact and conclusions of law recommending petitioner be denied state habeas relief. On May 26, 2010, the Texas Court of Criminal Appeals dismissed petitioner's habeas application without written order citing Texas Government Code § 501.0081(b)-(c) ().
On July 26, 2010, petitioner filed a second state habeas application challenging his 2009 parole revocation and TDCJ-CID's calculation of his sentence, alleging he was denied due process by the arbitrary revocation of his parole and because his parole was revoked instead of him being sent to an ISF, that his rights had been violated under the equal protection clause of the Constitution, that he was being punished twice in violation of the double jeopardy clause by the failure to credit his sentence with street time, and that his sentence had been unconstitutionally extended in violation of the double jeopardy clause. On August 11, 2010, the State filed an answer arguing petitioner's application should be denied on the merits. On August 12, 2010, the state trial court entered findings of fact and conclusions of law recommending state habeas corpus relief be denied. On September 7, 2010, petitioner objected to the State's answer. On November 10, 2010, the Texas Court of Criminal Appeals dismissed petitioner's second state habeas application without written order, again citing Texas Government Code § 501.0081(b)-(c). In re Morrison, No. 73,988-02.
On November 23, 2010, TDCJ denied petitioner's time dispute resolution finding no error in petitioner's sentence calculation.
On December 6, 2010, petitioner filed a third state habeas application challenging the parole revocation and the calculation of his sentence, alleging he was reclassified and thus denied street time credits in violation of the prohibition against ex post facto laws, that he was denied due process by the arbitrary revocation of his parole and because his parole was revoked instead of petitioner being sent to an ISF, that his rights had been violated under the equal protection clause of the Constitution, that he was being punished twice in violation of the double jeopardy clause by the failure to credit his sentence with street time, and that his sentence had been unconstitutionally extended in violation of the double jeopardy clause and the prohibition against bills of attainder. On December 15, 2010, the State filed an answer asserting petitioner's application should be dismissed for failing to obtain awritten decision from TDCJ as to petitioner's time credit complaint, or that petitioner's state habeas application should be denied on the merits. On December 16, 2010, the state trial court designated issues for determination and ordered the filing of an affidavit addressing those issues.5 On January 14, 2011, the State filed an affidavit from TDCJ reflecting (1) TDCJ responded to petitioner's time dispute resolution on November 23, 2010 finding there was no error in his time calculations; (2) petitioner was not within 180 days of his mandatory supervised release date of May 10, 2020 or discharge date of April 21, 2033; (3) petitioner forfeited his street time pursuant to Texas Government Code § 508.283(b) upon his return to TDCJ custody due to his conviction of murder; and (5) the 2009 version of Texas Government Code was in effect at the time of petitioner's parole revocation rendering petitioner ineligible for release to mandatory supervision because he had been previously convicted of the offense of murder. On February 9, 2011, petitioner filed objections to the State...
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