Russo v. Johnson

• Decision Date: 12 January 2001
• Docket Number: No. Civ.A. H-99-4068.,Civ.A. H-99-4068.
• Citation: 129 F.Supp.2d 1012
• Parties: Nicholas James RUSSO, Petitioner, v. Gary L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent.
• Court: U.S. District Court — Southern District of Texas

129 F.Supp.2d 1012

Nicholas James RUSSO, Petitioner, v. Gary L. JOHNSON, Director, Texas Department of Criminal Justice, Institutional Division, Respondent.

No. Civ.A. H-99-4068.

United States District Court, S.D. Texas.

January 12, 2001.

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Nicholas James Russo, c/o Steinman Blake Morgan, Houston, TX, petitioner pro se.

Carolyn Merchan, Office of Atty General, Austin, TX, for Gary Johnson, Director, TDCJ, respondent.

MEMORANDUM AND ORDER

CRONE, United States Magistrate Judge.

Petitioner Nicholas James Russo ("Russo") challenges the denial of sentence credit for the time he was incarcerated in a New York State prison and the time he was on parole in New York after the issuance of a Texas parole violation warrant. Having reviewed the pending motion, the submissions of the parties, the state court record, and the applicable law, the court is of the opinion that Gary L. Johnson's ("Johnson") Motion for Summary Judgment (# 8) should be granted, Russo's Motion for Evidentiary Hearing (# 11) and Petition for Writ of Habeas Corpus (# 1) should be denied, and a Certificate of Appealability should not be issued.

I. Factual Background and Procedural History

On January 7, 1991, Russo pleaded guilty to felony theft and was sentenced to ten years' imprisonment in the Texas Department of Criminal Justice-Institutional Division ("TDCJ-ID"). See State v. Russo, No. 585291 (263rd Dist. Ct., Harris County, Jan. 7, 1991). He was released on parole on January 10, 1992. On March 4, 1992, a pre-revocation "blue" warrant was issued for Russo's arrest, alleging that he had violated Rules 1 and 3 of his parole by failing to report as directed to his parole officer and by changing his residence to an undisclosed location.

The warrant was posted on the Texas Crime Information Center ("TCIC") System on March 23, 1992. According to the deposition on written questions of Monte Dell McKee ("McKee"), a representative of the Criminal Justice Information Services Division of the Federal Bureau of Investigation, the warrant was never posted on the National Crime Information Center ("NCIC") System. McKee explained, "Entry of records into the NCIC Wanted Person File is on a voluntary basis. Furthermore, prior to April 27, 1998, the entry of a wanted person that would not be extradited from one state to another was prohibited." Regina Temple Grimes ("Grimes"), Assistant General Counsel with the Texas Department of Criminal Justice, confirmed in response to a deposition on written questions that "there was no entry, issuance, lodging or posting of official notice of the interest of the State of Texas in and authority to return Russo on any other law enforcement service other than TCIC."

On January 30, 1993, Russo was arrested in Bronx County, New York, for the offense of burglary. He was convicted of that offense on March 2, 1993, and was sentenced to two to four years' confinement in the New York Department of Correctional Services ("NYDOCS"). Russo was released on parole in New York on October 18, 1995. He was returned to the custody of the NYDOCS on April 30, 1996, due to a parole violation. Russo was again released on parole in New York on January 3, 1997. The State of Texas did not lodge a detainer or place a hold on Russo while he was in the custody of the State of New York. Russo has submitted a sworn statement from his mother, Audrey M. DeMicco, stating that she contacted the Texas Parole Office sometime during the month of March 1993 to inquire about her son's status and was told that "Texas would not be extraditing [her] son; he told [her] that Texas had no interest in Nicholas." She further related that Mr. Griffin, a New York State Parole Officer, who paid her a home visit, "assured [her] that there was no hold on Nicholas." In response to the deposition on written questions, Grimes confirmed that "there appears to have been contact from two individuals to TDCJ personnel questioning whether Russo was going to be extradited."

Russo returned to Texas shortly after his release on January 3, 1997, and the 1992 "blue" warrant was executed against him on January 14, 1997, in Humble, Texas. When he was interviewed by a representative of the TDCJ-Paroles Division on February 5, 1997, he admitted to the allegations contained in the parole violation warrant. Russo's Texas parole was revoked on March 13, 1997, and he was returned to the custody of the TDCJ-ID on April 22, 1997.

Russo has filed two state habeas corpus applications challenging the denial of sentence credit. After the first application was remanded for an evidentiary hearing and/or affidavits, it was denied without written order on the findings of the trial court after a hearing. See Ex parte Russo, No. 36,642-01 (Tex.Crim.App. June 9, 1999). His second application was denied without written order. See Ex parte Russo, No. 36,642-02 (Tex.Crim.App. Aug. 18, 1999).

Russo filed his federal petition for a writ of habeas corpus on November 23, 1999.

II. Claims

Russo's sole claim in support of his petition for federal habeas corpus relief is that he was wrongfully denied sentence credit for the time periods he was incarcerated and on parole in New York subsequent to the issuance of the Texas "blue" warrant on March 4, 1992. Relying on theories of intentional waiver of jurisdiction and equitable estoppel, Russo asserts that the failure to grant him sentence credit violates his rights under the Fifth, Eighth, and Fourteenth Amendments to the United States Constitution.

III. Analysis

To prevail on his petition for federal habeas corpus relief, Russo must establish that he has been deprived of a right guaranteed by the United States Constitution. "A state prisoner seeking federal court review of his conviction pursuant to 28 U.S.C. § 2254 must assert a violation of a federal constitutional right." Lawrence v. Lensing, 42 F.3d 255, 258 (5th Cir.1994); accord Narvaiz v. Johnson, 134 F.3d 688, 695 (5th Cir.), cert. denied, 524 U.S. 947, 118 S.Ct. 2364, 141 L.Ed.2d 731 (1998); West v. Johnson, 92 F.3d 1385, 1404 (5th Cir.1996), cert. denied, 520 U.S. 1242, 117 S.Ct. 1847, 137 L.Ed.2d 1050 (1997); Gray v. Lynn, 6 F.3d 265, 268 (5th Cir.1993); Lowery v. Collins, 988 F.2d 1364, 1367 (5th Cir.1993). "Federal habeas relief cannot be had `absent the allegation by a plaintiff that he or she has been deprived of some right secured to him or her by the United States Constitution or the laws of the United States.'" Malchi v. Thaler, 211 F.3d 953, 957 (5th Cir.2000) (quoting Orellana v. Kyle, 65 F.3d 29, 31 (5th Cir.1995), cert. denied, 516 U.S. 1059, 116 S.Ct. 736, 133 L.Ed.2d 686 (1996)); accord Hilliard v. Board of Pardons & Paroles, 759 F.2d 1190, 1192 (5th Cir.1985); Irving v. Thigpen, 732 F.2d 1215, 1216 (5th Cir.1984).

The federal habeas corpus statute addressing the claims of state prisoners provides:

(a) The Supreme Court, a Justice thereof, a circuit judge, or a district court shall entertain an application for a writ of habeas corpus in behalf of a person in custody pursuant to judgment of a State court only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States.

28 U.S.C. § 2254(a). Thus, when a federal court reviews a petition for a writ of habeas corpus from a state prisoner, its inquiry is restricted to "whether the petitioner is `in custody in violation of the Constitution or laws or treaties of the United States.'" Coleman v. Thompson, 501 U.S. 722, 730, 111 S.Ct. 2546, 115 L.Ed.2d 640 (1991) (quoting 28 U.S.C. § 2254(a)). A federal writ of habeas corpus will not be granted to correct errors of state constitutional, statutory, or procedural law, unless a federal issue is also presented. See Estelle v. McGuire, 502 U.S. 62, 67-68, 112 S.Ct. 475, 116 L.Ed.2d 385 (1991); Lewis v. Jeffers, 497 U.S. 764, 780, 110 S.Ct. 3092, 111 L.Ed.2d 606 (1990); Pulley v. Harris, 465 U.S. 37, 41, 104 S.Ct. 871, 79 L.Ed.2d 29 (1984); Gibbs v. Johnson, 154 F.3d 253, 257 (5th Cir.1998), cert. denied, 526 U.S. 1089, 119 S.Ct. 1501, 143 L.Ed.2d 654 (1999); Pemberton v. Collins, 991 F.2d 1218, 1223 (5th Cir.), cert. denied, 510 U.S. 1025, 114 S.Ct. 637, 126 L.Ed.2d 596 (1993); Lavernia v. Lynaugh, 845 F.2d 493, 496 (5th Cir.1988). "[S]tate-court judgments must be upheld unless, after the closest examination of the state-court judgment, a federal court is firmly convinced that a federal constitutional right has been violated." Williams v. Taylor, 529 U.S. 362, 120 S.Ct. 1495, 1511, 146 L.Ed.2d 389 (2000).

Generally, in the absence of a statute to the contrary, "there is no federal constitutional right to credit for time served prior to sentence." Gremillion v. Henderson, 425 F.2d 1293, 1294 (5th Cir. 1970); see Boutwell v. Nagle, 861 F.2d 1530, 1532 (11th Cir.1988); Palmer v. Dugger, 833 F.2d 253, 254 (11th Cir.1987); Bayless v. Estelle, 583 F.2d 730, 732 (5th Cir.1978), cert. dismissed, 441 U.S. 938, 99 S.Ct. 2065, 60 L.Ed.2d 667 (1979); Paprskar v. Estelle, 566 F.2d 1277, 1279 (5th Cir.), cert. denied, 439 U.S. 843, 99 S.Ct. 136, 58 L.Ed.2d 142 (1978); Jackson v. Alabama, 530 F.2d 1231, 1236-37 (5th Cir. 1976). Texas courts have recognized that "there is no constitutional right to credit for the time served between an arrest and the sentence" and also "no federal constitutional right to time credit for any period of confinement pending a parole revocation hearing." Ex parte Canada, 754 S.W.2d 660, 665-66 (Tex.Crim.App.1988) (citing Jackson, 530 F.2d at 1236-37; Gremillion, 425 F.2d at 1294); see Morrison v. Johnson, 106 F.3d 127, 129 n. 2 (5th Cir.1997); Greenwood v. State, 948 S.W.2d 542, 546 n. 4 (Tex.App. — Fort Worth 1997, no pet.). The principle enunciated in Gremillion was qualified to some extent by the Fifth Circuit in Jackson:

The rule in this circuit distilled from prior decisions, as to whether a state prisoner is entitled to federal habeas corpus relief for credit on the...