United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 25, 2004
Charles R. Fulbruge III
Clerk
No. 04-20392
Summary Calendar
JAMES B. WHITLEY,
Petitioner-Appellant,
versus
DOUG DRETKE, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee.
--------------------
Appeal from the United States District Court
for the Southern District of Texas
(03-CV-5097)
--------------------
Before JOLLY, HIGGINBOTHAM, and PICKERING, Circuit Judges.
PER CURIAM:*
James B. Whitley, Texas prisoner #539160, seeks a
certificate of appealability (COA) to appeal from the dismissal
of his habeas corpus application. Whitley contends that he was
deprived of due process because his good-conduct time credits and
street-time credits were forfeited upon the revocation of his
parole.
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
O R D E R
No. 04-20392
-2-
To obtain a COA, Whitley must make “a substantial showing of
the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2).
Whitley “must demonstrate that reasonable jurists would find
the district court’s assessment of the constitutional claims
debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484
(2000). “The COA determination under § 2253(c) requires an
overview of the claims in the habeas petition and a general
assessment of their merits.” Miller-El v. Cockrell, 537 U.S.
322, 336 (2003).
Regarding his good-conduct time credits, Whitley has not
made the showing required to obtain a COA. See Munguia v. United
States Parole Comm’n, 871 F.2d 517, 521 (5th Cir. 1989). As to
Whitley’s contention that he was deprived of due process because
he was deprived of good-conduct time credits, his COA request is
DENIED.
Before September 2001, Texas law allowed the Board of
Pardons and Paroles to disregard the street time a prisoner
accumulated while on release. TEX. GOV’T CODE ANN. § 508.283(c)
(Vernon 1998). Prisoners had no liberty interest in retention of
street time upon revocation of release status. See Thompson v.
Cockrell, 263 F.3d 423, 426 (5th Cir. 2001). However, it is
possible that amendments to the relevant statute have created a
protected liberty interest in retention of street time by some
prisoners whose release was revoked after September 1, 2001.
TEX. GOV’T CODE ANN. § 508.283(c)(Vernon supp. 2004); see Olim v.
O R D E R
No. 04-20392
-3-
Wakinekona, 461 U.S. 238, 249 (1983); Ex parte Spann, 132 S.W.3d
390 (Tex. Crim. App. 2004).
The record in Whitley’s case does not indicate when he began
serving his sentence, when he was released, when his release was
revoked, or how much time was remaining on his sentence. Nor
does the record provide details about his convictions
demonstrating that Whitley’s convictions render him eligible for
release on mandatory supervision and therefore possibly eligible
to retain his street-time credits. See TEX. GOV’T CODE ANN.
§ 508.149(a)(Vernon supp. 2004). Nor does the record indicate
details about any state-court disposition of Whitley’s street-
time contention. Moreover, the respondent did not participate in
the district-court proceeding.
Because Whitley conceivably has a protected liberty interest
in retaining his street-time credits, his request for a COA is
GRANTED regarding his contention that he was deprived of street-
time credits without due process. Because the record does not
provide a sufficient factual basis for determination of Whitley’s
street-time contention, and because the district court has not
addressed whether § 508.283(c) creates a liberty interest, the
judgment is VACATED AND REMANDED regarding the street-time
contention only, for proceedings consistent with this order. We
express no opinion on the ultimate outcome of the proceedings.
COA DENIED IN PART; COA GRANTED IN PART; VACATED AND
REMANDED IN PART.