United States Court of Appeals,
Fifth Circuit.
No. 96-40135.
Randy MORRISON, Petitioner-Appellant,
v.
Gary L. JOHNSON, Director, Texas Department of Criminal Justice,
Institutional Division, Respondent-Appellee.
Feb. 26, 1997.
Appeal from the United States District Court for the Eastern
District of Texas.
Before DUHÉ, BENAVIDES and STEWART, Circuit Judges.
PER CURIAM:
Petitioner Randy Morrison filed this application for a writ of
habeas corpus in the district court pursuant to 28 U.S.C. § 2254.
For the reasons explained below, we affirm the judgment of the
district court denying relief.
I. Background
Randy Morrison pleaded guilty in Texas state court to the
crimes of attempted burglary of a building and credit card abuse.
On March 30, 1990, the court sentenced Morrison to a five-year term
of confinement in the Texas Department of Criminal Justice,
Institutional Division. Morrison received credit for one day of
incarceration that he had served prior to sentencing, which
resulted in a release date of March 29, 1995.
Morrison was released on parole on November 14, 1990. In
January 1995, the authorities received information that Morrison
violated the conditions of his parole by committing the crimes of
1
disorderly conduct, making a terroristic threat, and forgery. A
parole revocation warrant was issued on January 30, 1995. The
warrant was executed when Morrison was arrested on February 10,
1995. Morrison waived his right to a revocation hearing and on
March 31, 1995, his parole was formally revoked when the Board of
Pardons and Paroles issued its "Proclamation of Revocation and
Warrant of Arrest."
After exhausting his claims in state court, Morrison filed
this habeas action in the district court and was denied relief.
This court granted a certificate of probable cause to appeal and
directed the state to respond to Morrison's argument that his
parole was not revoked until two days after the expiration of his
original sentence.
II. Discussion
Section 15(a) of Article 42.18 of the Texas Code of Criminal
Procedure provides that "[i]n order to complete the parole period,
a parolee shall be required to serve out the whole term for which
he was sentenced, subject to the deduction of the time he had
served prior to his parole. The time on parole shall be calculated
as calendar time." Morrison argues that his parole was complete
pursuant to this provision on March 29, 1995. The Texas Board of
Pardons and Paroles, however, did not formally revoke Morrison's
parole until March 31, 1995. Therefore, Morrison contends that the
Board was without jurisdiction to revoke his parole. Morrison
claims that he is "in custody in violation of the Constitution or
laws ... of the United States" because the Board revoked his parole
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in an untimely manner.1 See 28 U.S.C. § 2254(a).
Morrison's petition for a writ of habeas corpus must be
denied because his parole was revoked in a timely manner under
Texas law and in a manner that is consistent with constitutional
requirements. Section 13(b) of Article 42.18 of the Texas Code of
Criminal Procedure provides, in part:
A prisoner for whose return a warrant has been issued shall,
after the issuance of such warrant, be deemed a fugitive from
justice and if it shall appear that he has violated the
conditions or provisions of his mandatory supervision or
parole, the time from the issuing of such warrant to the date
of his arrest shall not be counted as any part of the time to
be served under his sentence....
TEX.CODE CRIM.PROC.ANN. art. 42.18 § 13(b) (West 1997). Pursuant to
this provision, the time period between the issuance of Morrison's
parole revocation warrant on January 30, 1995, and his arrest on
February 10, 1995, did not count as part of his sentence.
Therefore, Morrison's release date was pushed back eleven days from
March 29, 1995, until April 9, 1995. Because Morrison's parole
revocation proceedings were completed on March 31, 1995, the Board
1
Morrison also argues that he was unlawfully denied time
credit for the time that he spent on parole. This argument is
without merit. See TEX.CODE CRIM.PROC.ANN. art. 42.18 § 14(a) (West
1997) ("When a person's parole ... 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"); Cortinas v. United States Parole Comm'n, 938 F.2d
43, 46 (5th Cir.1991) (rejecting a challenge to a similar federal
statute). In addition, Morrison argued in the district court that
requiring him to serve the entire portion remaining on his sentence
after his parole is revoked violates the multiple punishments prong
of the Double Jeopardy Clause. This argument is also without
merit. Cf. Cortinas, 938 F.2d at 46-47 (declining to extend double
jeopardy protections to parole revocation proceedings); United
States v. Whitney, 649 F.2d 296, 298 (5th Cir.Unit B 1981) (same).
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acted in a timely manner in accordance with state law.
Moreover, no court has found constitutional infirmity in the
practice of executing a parole revocation warrant and completing
parole revocation proceedings after expiration of a parolee's
maximum term, so long as the parole revocation warrant was issued
before the term expired.2 Regulations implementing the
jurisdictional provision of the federal parole statute, 18 U.S.C.
§ 4210, explicitly provide that "[t]he issuance of a warrant under
this section operates to bar the expiration of the parolee's
sentence. Such warrant maintains the Commission's jurisdiction to
retake the parolee either before or after the normal expiration
date of the sentence and to reach a final decision as to revocation
of parole and forfeiture of time...." 28 C.F.R. § 2.44 (1996).
2
See Ex Parte Canada, 754 S.W.2d 660, 666 (Tex.Crim.App.1988)
("It appears that there is no federal constitutional right to time
credit for any period of confinement pending a parole revocation
hearing"); Ivy v. Alabama, 381 F.Supp. 503, 504 (S.D.Ala.1974)
("It is only when an unreasonable delay occurs between the date of
respondent obtaining custody and control over parolee and the date
of parole revocation decision that a claim may become cognizable on
a federal Writ of Habeas Corpus").
Several courts have granted habeas corpus relief in favor
of petitioners who have had their parole revoked in an
untimely manner because the parole revocation warrants relied
upon were not issued before the petitioners' sentences were
complete. See Ex Parte Ethridge, 899 S.W.2d 206, 207
(Tex.Crim.App.1995) (granting relief to a petitioner whose
conviction expired before the Texas Board of Pardons and
Paroles issued a notice of intent to revoke his parole);
Cronn v. Burkhart, 830 F.Supp. 946, 959 (N.D.Tex.1993)
(holding that the issuance of a second parole revocation
warrant was too late because it was issued after the parole
violator was free from parole supervision); Barrier v.
Beaver, 712 F.2d 231, 236 (6th Cir.1983) (concluding that the
U.S. Parole Commission was without authority to utilize a
second parole revocation warrant because it was not issued
prior to the expiration of the petitioner's maximum term).
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Not surprisingly, numerous courts facing similar challenges to the
timeliness of federal parole revocation proceedings have concluded
that "[w]hile a parole violators warrant must be issued within the
maximum term of the sentence[,] ... it need not be executed during
this period." Cook v. United States Attorney General, 488 F.2d 667
(5th Cir.), cert. denied, 419 U.S. 846, 95 S.Ct. 81, 42 L.Ed.2d 75
(1974).3 Because Morrison's parole revocation warrant was issued
prior to expiration of his sentence, he cannot allege a cognizable
constitutional violation.
The judgment of the district court is AFFIRMED.
3
See also Barrier, 712 F.2d at 236-37 (interpreting the
federal parole statute and regulations to "vest[ ] the Parole
Commission with authority to rule upon timely issued violator
warrants, even after expiration of the putative maximum term");
Martin v. Luther, 689 F.2d 109, 114 (7th Cir.1982) (interpreting
the federal parole statute as a "temporal jurisdictional
limitation" whereby the Parole Commission's supervisory authority
over a parolee terminates upon expiration of the maximum term,
although its jurisdiction over an alleged parole violation
continues so long as the process commenced in a timely fashion).
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