Fuhrman v. Dretke

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS
March 10, 2006
FOR THE FIFTH CIRCUIT
_____________________ Charles R. Fulbruge III
Clerk
No. 05-50413
_____________________

MICHAEL JOSEPH FUHRMAN,

Petitioner - Appellee,

versus

DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,

Respondent - Appellant.

__________________________________________________________________

Appeal from the United States District Court
for the Western District of Texas
_________________________________________________________________

Before JOLLY, BEAM,1 and BARKSDALE, Circuit Judges.

E. GRADY JOLLY, Circuit Judge:

The Texas Department of Criminal Justice (“TDCJ”) appeals the

district court’s grant of Michael Joseph Fuhrman’s Petition for

Writ of Habeas Corpus, which alleged that Fuhrman was being held in

custody in contravention of Texas’s DNA Statute. The TDCJ contends

that the district court’s grant is barred by the law of the case

doctrine and the mandate rule. Furthermore, the district court

erred by failing to defer to the state’s reasonable interpretation

of the statute at issue. Because we agree that the grant of habeas

1
Circuit Judge for the United States Court of Appeals for the
Eighth Circuit, sitting by designation.
corpus relief was error, we reverse and render judgment for the

TDCJ.

Michael Joseph Fuhrman pled guilty to the felony of burglary

of a building with intent to commit theft. On November 16, 1989,

Fuhrman was sentenced to fifteen years of imprisonment in the TDCJ

by the 263rd Judicial District Court of Harris County, Texas.2 No

direct appeal was taken.

In 1995, Texas enacted its DNA testing statute. See TEX. GOV’T

CODE ANN. § 411.148 (1996). The statute provided that the TDCJ was

to take DNA specimens from inmates who had been convicted of

certain crimes, including those convicted of burglary of a

habitation with intent to commit a felony other than theft. TEX.

GOV’T CODE ANN. § 411.148(a) (1996); TEX. PENAL CODE ANN. § 30.02(d)

(2003). The relevant section of the statute was amended in 1999 to

include second degree burglary of a habitation as a qualifying

offense. TEX. GOV’T CODE ANN. § 411.148(a) (1999); TEX. PENAL CODE ANN.

§ 30.02(c)(2) (2003).

On September 6, 2000, the TDCJ first attempted to take

Fuhrman’s DNA sample. Fuhrman refused to comply. The TDCJ cited

as the qualifying offense a 1968 Georgia conviction of burglary of

a habitation to which Fuhrman had admitted on his travel card. As

2
The district court incorrectly stated that Fuhrman was
sentenced on November 16, 1999. 1989 is the correct year of
sentencing.

2
a result of his refusal, and after disciplinary proceedings,

Fuhrman was punished by revoking his good-time credits. This

revocation changed Fuhrman’s projected mandatory supervised release

date. This pattern between Fuhrman and the TDCJ repeated itself

over and over again. Fuhrman filed an application for a writ of

habeas corpus, which was denied by the Texas Court of Criminal

Appeals without written order on March 21, 2001. Fuhrman filed

second and third applications, which were ultimately denied by the

Texas Court of Criminal Appeals respectively, on February 6, 2002

without written order, and on April 6, 2005 without written order

on the findings of the trial court without a hearing.

On May 11, 2001, Fuhrman filed an Application for Writ of

Habeas Corpus under 28 U.S.C. § 2254 in the United States District

Court for the Northern District of Texas, which ordered it

transferred to the United States District Court for the Western

District of Texas on May 16, 2001. Fuhrman raised ten claims. On

January 10, 2003, the district court denied Fuhrman’s federal

Application, stating that his claims all lacked merit.

Fuhrman sought a certificate of appealability (“COA”) from

this court. On July 11, 2003, this court granted Fuhrman a COA on

certain issues, vacated the district court’s judgment, and remanded

“for a definitive finding whether Fuhrman lost good-time credits in

any disciplinary cases other than # 20010015552 for refusing to

submit a DNA specimen.” Fuhrman v. Cockrell, 79 F. App’x 614, 615

3
(5th Cir. 2003). We instructed that if the district court should

find that Fuhrman had lost such good-time credits, the district

court should

order the Respondent to brief the issues (1)
whether Furhman [sic] is eligible for release
to mandatory supervision and (2) whether his
forfeiture of good-time credits contravenes §
411.148(d)’s provision that ‘[a]n inmate may
not be held past a statutory release date if
the inmate fails or refuses to provide a blood
sample,’ and, if so, whether there are
constitutional implications necessitating
habeas relief.

Id. This court additionally held that “there is no indication that

the Georgia offense of burglary of a habitation was not a DNA

eligible offense, given that it involved conduct punishable under

Texas Penal Code § 30.02(c)(2), which provides that the crime of

burglary is a ‘felony of the second degree if committed in a

habitation.’” Id. (quoting TEX. PENAL CODE ANN. § 30.02(c)(2) (Vernon

2002)).

After our remand, the district court issued its Reply to

Remand Order Granting Movant 28 U.S.C. § 2254 Relief and a Final

Judgment granting relief on January 13, 2005. The court held that

Fuhrman lost a total of 1308 good-time credits solely based on his

refusal to submit to DNA testing. The court further held that

Fuhrman was eligible for mandatory supervised release, and that the

TDCJ was in violation of TEX. GOV’T CODE ANN. § 411.148(d), which

forbids holding a prisoner past his statutory release date for

failure to submit to DNA testing. Last, the district court ruled

4
that Fuhrman’s Georgia burglary conviction did not, absent more,

place him within the scope of Texas’s DNA statute.

The TDCJ filed a Rule 59(e) Motion to Alter or Amend the

Judgment, contending that Fuhrman is subject to the Texas DNA

statute. The TDCJ further argued that forfeiting Fuhrman’s good-

time credits did not implicate due process rights because the term

“statutory release date,” as used in § 411.148(d), did not equate

to a mandatory supervised release date. On February 10, 2005, the

district court denied the motion, finding that the Georgia burglary

conviction (the conviction relied on by the state) did not make

Fuhrman eligible for DNA testing, and that “statutory release date”

means “the date at which an inmate can be released taking into

account his good time credits.”

The TDCJ timely appeals the Final Judgment and the Order

Denying Respondent’s Emergency Motion Under Rule 59(e).

III

The TDCJ argues that the district court failed to properly

respect the law of the case doctrine and the mandate rule when it

decided that Fuhrman’s Georgia conviction was not a qualifying

offense for purposes of the Texas DNA statute. We agree.

The law of the case doctrine provides that “an issue of law or

fact decided on appeal may not be reexamined either by the district

court on remand or by the appellate court on a subsequent appeal.”

United States v. Becerra, 155 F.3d 740, 752 (5th Cir. 1998)

5
(quoting Ill. Cent. Gulf R.R. v. Int’l Paper Co., 889 F.2d 536, 539

(5th Cir. 1989)). Exceptions to the law of the case doctrine allow

reexamination only if “(i) the evidence on a subsequent trial was

substantially different, (ii) controlling authority has since made

a contrary decision of the law applicable to such issues, or (iii)

the decision was clearly erroneous and would work a manifest

injustice.” Becerra, 155 F.3d at 752-53 (quoting N. Miss.

Commc’ns, Inc. v. Jones, 951 F.2d 652, 656 (5th Cir. 1992)). The

principles surrounding the law of the case doctrine “apply equally

to the mandate rule, ‘which is but a specific application of the

general doctrine of law of the case.’” United States v. Lee, 358

F.3d 315, 321 (5th Cir. 2004). “Absent exceptional circumstances,

the mandate rule compels compliance on remand with the dictates of

a superior court and forecloses relitigation of issues expressly or

impliedly decided by the appellate court.” Id.; see also Becerra,

155 F.3d at 753 (The mandate rule is a corollary of the law of the

case doctrine providing “that a lower court on remand must

‘implement both the letter and the spirit of the [appellate

court’s] mandate,’ and may not disregard the ‘explicit directives’

of that court.” (alteration in original) (quoting Johnson v. Uncle

Ben’s, Inc., 965 F.2d 1363, 1370 (5th Cir. 1992)). The “district

court is not free to deviate from the appellate court’s mandate.”

Becerra, 155 F.3d at 753 (quoting Barber v. Int’l Bhd. of

Boilermakers, 841 F.2d 1067, 1070 (11th Cir. 1988)). The district

6
court may only deviate from the mandate if one of the exceptions to

the law of the case doctrine applies. Becerra, 155 F.3d at 753.

This court mandated that the district court examine limited

specific issues, none of which involved a determination regarding

the Georgia conviction. We remanded “for a definitive finding

whether Fuhrman lost good-time credits in any disciplinary cases

other than # 20010015552 for refusing to submit a DNA specimen.”

Fuhrman, 79 F. App’x at 615. We further directed that should the

district court find that Fuhrman had lost certain good-time

credits, the district court should

order the Respondent to brief the issues (1)
whether Furhman [sic] is eligible for release
to mandatory supervision and (2) whether his
forfeiture of good-time credits contravenes §
411.148(d)’s provision that “[a]n inmate may
not be held past a statutory release date if
the inmate fails or refuses to provide a blood
sample,” and, if so, whether there are
constitutional implications necessitating
habeas relief.

Id. Further, this court stated that “there is no indication that

the Georgia offense of burglary of a habitation was not a DNA-

eligible offense, given that it involved conduct punishable under

Texas Penal Code § 30.02(c)(2), which provides that the crime of

burglary is a ‘felony of the second degree if committed in a

habitation.’” Id. Thus, the district court’s determination that

Fuhrman’s Georgia conviction was not a DNA-eligible offense was

clearly a deviation from the specifics of this court’s mandate, and

7
it also improperly reexamined an issue decided by this court,

contravening the law of the case doctrine.

Thus, we must determine if an exception exists that would

allow the district court to take this detour and decide the issue.

Fuhrman does not point us to any new evidence adduced by the

district court in finding that the Georgia conviction was not a

DNA-eligible conviction, and we otherwise find no indication that

new evidence regarding the Georgia conviction was adduced on

remand. Therefore, the first exception to the law of the case

doctrine and the mandate rule is not met. Similarly, Fuhrman does

not direct us to, nor are we able to find, any intervening change

of law by a controlling authority that would warrant the

determination by the district court that the Georgia conviction was

not a DNA-eligible offense.

Last, we must determine whether the earlier decision by this

court was clearly erroneous and would work a manifest injustice.

The Texas DNA statute was amended in 1999 to include second degree

burglary of a habitation as a qualifying offense. TEX. GOV’T CODE

ANN. § 411.148(a) (1999);3 TEX. PENAL CODE ANN. § 30.02(c)(2) (2003).4

3
The statute was amended to state:

(a) An inmate of the institutional division or
other penal institution shall provide one or
more blood samples or other specimens taken by
or at the request of the institutional
division for the purpose of creating a DNA
record if the inmate is ordered by a court to
give the sample or specimen or is serving a
sentence for:

8
(1) an offense:

...

(B) under Section 30.02, Penal Code
(burglary), if the offense is punishable under
Subsection (c)(2) or (d) of that section;

...

(2) any offense if the inmate has previously
been convicted of or adjudicated as having
engaged in:

(A) an offense described in Subsection (a)(1);
or

(B) an offense under federal law or laws of
another state that involves the same conduct
as an offense described by Subsection (a)(1).

TEX. GOV’T CODE ANN. § 411.148(a) (1999).

We also note that as it currently reads, the law applies to
any “inmate serving a sentence for a felony.” TEX. GOV’T CODE ANN.
§ 411.148(a) (2005).
4
The relevant Texas burglary statute states:

(a) A person commits an offense if, without
the effective consent of the owner, the
person:

(1) enters a habitation, or a building (or any
portion of a building) not then open to the
public, with intent to commit a felony, theft,
or an assault; or
(2) remains concealed, with intent to commit a
felony, theft, or an assault, in a building or
habitation; or

(3) enters a building or habitation and
commits or attempts to commit a felony, theft,
or an assault.

(b) For purposes of this section, "enter"
means to intrude:

9
Fuhrman apparently admitted to the Georgia conviction for burglary

of a habitation on a travel card he filled out with the TDCJ.

Furthermore, § 411.148(a) covers “an offense under federal law or

laws of another state that involves the same conduct as an offense

described by Subsection (a)(1).” TEX. GOV’T CODE ANN. § 411.148(a)

(1999) (emphasis added). Fuhrman argues that because his sentence

in Georgia was apparently limited to six months of probation, and

under the Georgia law of burglary, the minimum sentence for a first

offense for burglary was one year, his sentence was punishment for

(1) any part of the body; or

(2) any physical object connected with the body.

(1) state jail felony if committed in a
building other than a habitation; or

(2) felony of the second degree if committed
in a habitation.

(d) An offense under this section is a felony
of the first degree if:

(1) the premises are a habitation; and

(2) any party to the offense entered the
habitation with intent to commit a felony
other than felony theft or committed or
attempted to commit a felony other than felony
theft.

TEX. PENAL CODE ANN. § 30.02 (2003).

10
a misdemeanor. The Texas statute defines the relevant burglary

offense as a second degree felony; thus Fuhrman argues that his

punishment cannot be compared to the Texas burglary felony.

Although Fuhrman’s argument seems logical, the relevant language in

the statute sheds light. The statute makes reference to offenses

that involve the same conduct, i.e. burglary of a habitation, and

not to offenses that involve the same punishment. Because burglary

of a habitation, whether sentenced as a misdemeanor or a felony,

involves the same relevant conduct, it is reasonable to interpret

§ 411.148(a) as including Fuhrman’s Georgia conviction. Thus, this

court did not plainly err in its holding that the Georgia

conviction was a DNA-eligible offense. Because this holding was

not clear error, the last exception to the law of the case doctrine

does not apply.

Therefore, the district court was not permitted to determine

that the Georgia conviction was not a DNA-eligible conviction, and

it erred in doing so, as its holding runs afoul of both the law of

the case doctrine and the mandate rule. Fuhrman’s Georgia

conviction rendered him eligible for DNA sampling.

The TDCJ next argues that the district court erred in failing

to defer to the state’s interpretation of the Texas DNA statute.

Specifically, the TDCJ argues that the district court should have

deferred to the Director’s interpretation of “statutory release

11
date.” Section 411.148(d) states that “[a]n inmate may not be held

past a statutory release date if the inmate fails or refuses to

provide a blood sample or other specimen under this section.” TEX.

GOV’T CODE ANN. § 411.148(d) (1999). It goes on to provide that “[a]

penal institution may take other lawful administrative action

against the inmate.” Id. The district court, in interpreting

these two sentences in conjunction, found that

the legislature ... allowed for [the TDCJ] to
take other measures short of perpetual
incarceration against an imnate who failed to
comply with a request for DNA. [The TDCJ] has
other administrative avenues it did and may
continue to pursue against inmates who do not
comply with DNA testing. None of these other
administrative actions impinge upon
[Fuhrman’s] due process rights as clearly as
does the loss of good-time credits, especially
in light of the language of the statute which
expressly forbids the type of action taken by
the TDCJ in this case. As demonstrated in
this case, the TDCJ also restricted
[Fuhrman’s] recreation, commissary and
visitation privileges in reaction to his
refusal to submit to DNA testing. None of
those restrictions are expressly forbidden by
the language of § 411.148(d), which does not
allow for actions which retain an inmate past
his statutory release date as punishment.

(emphasis added). This statement in essence excoriates the TDCJ

for keeping Fuhrman past his projected mandatory supervised release

date, thus interpreting “statutory release date” in § 411.148(d) to

include “projected mandatory supervised release date.” Further,

the district court stated that “statutory release date” means “the

date at which an inmate can be released taking into account his

12
good time credits.” Fuhrman argues that “statutory release date”

includes “projected mandatory supervised release date,” and as he

was kept past his projected mandatory supervised release date, he

was kept in custody in contravention of the mandate of the Texas

DNA statute, and thus his due process rights were violated.

In its Administrative Directive 3.17, the TDCJ consistently

and continuously interprets § 411.148(d) in a manner inconsistent

with the district court’s opinion. The TDCJ contemplates the

taking of good time credits as a sanction for refusal to submit to

DNA sampling, and further contemplates, and even encourages, the

pushing back of supervised release and parole dates, as a

consequence of refusing to cooperate in DNA sampling.5 This record

5
Tex. Dep’t of Criminal Justice, Administrative Directive
03.17, Policy (Sept. 1, 1999) (“Although an offender may not be
held past a non-discretionary mandatory supervision or discharge
date, the law provides for the use of administrative action against
an offender who fails or refuses to comply.”); id. at III.A.3 (“The
purpose of pursuing disciplinary action is to prevent the parole or
mandatory release of an offender who refuses to give a sample.”);
id. at III.A.4 (“An offender who has been reduced in time-earning
status for refusal to provide a DNA specimen shall not be eligible
for promotion in time-earning status for as long as the offender
refuses to comply.”); id. at III.B (Force shall be used “to take a
blood sample prior to the release of an offender who refuses to
give the sample, provided however, that all administrative
sanctions have been taken to include the loss of all good time if
the offender is scheduled for release on parole or mandatory
supervision.”); Tex. Dep’t of Criminal Justice, Administrative
Directive 03.17 (rev. 1), Policy, III.A.3, III.A.4, III.B (Feb. 1,
2000), superseding AD-03.17 Sept. 1, 1999 (same as 03.17 from
September 1, 1999); Tex. Dep’t of Criminal Justice, Administrative
Directive 03.17 (rev. 2), IV.A.4 (July 19, 2002), superseding AD-
03.17 (rev. 1) Feb. 1, 2000 (same statement as previous III.A.3);
id. at IV.A.5 (“An offender who has been reduced in time-earning
status and refuses to provide a DNA specimen shall not be eligible
for promotion in time-earning status for as long as the offender

13
of conduct clearly indicates that the Director interprets the term

“statutory release date” in § 411.148(d) narrowly, not including

within the definition “projected mandatory supervision release

date.” According to this wholly plausible interpretation by the

Director, the disciplinary proceedings against correctly found

against Fuhrman, and the state trial court and Texas Court of

Criminal Appeals were correct in denying his applications for writ

of habeas corpus.6

refuses to comply.”); id. at IV.B (Force shall be used “to take a
blood sample prior to the release of an offender who refuses to
give the sample, provided all administrative sanctions have been
taken including the loss of all good time if the offender is
scheduled for release on parole or mandatory supervision.”
Further, “[i]t is imperative that all units processing offenders
who are required to submit a DNA specimen take all necessary steps
to secure the sample, i.e., loss of good time and reduction in
class, prior to the offender’s release.”); Tex. Dep’t of Criminal
Justice Administrative Directive 03.17, V.A.4 (rev. 3) (Apr. 1,
2004), superseding AD-03.17 (rev. 2) July 19, 2002 (same statement
as previous IV.A.4); id. at V.A.5 (same statement as previous
IV.A.5); id. at V.B (“All administrative sanctions shall be taken
including loss of all good time if the offender is scheduled for
release on parole or mandatory supervision. Force shall not be
used until all graduated sanctions have been taken.” Further,
“[i]t is imperative that all units processing offenders who are
required to submit a DNA specimen take all steps necessary to
secure the sample, i.e., loss of good time and reduction in class,
prior to the offender’s release.”).
6
We also note that the law has been amended, and currently
provides that:

An inmate may not be held past the inmate’s
statutory release date if the inmate fails or
refuses to provide a blood sample or other
specimen under this section. A penal
institution may take lawful administrative
action, including disciplinary action
resulting in the loss of good conduct time,
against an inmate who refuses to provide a

14
Under the Antiterrorism and Effective Death Penalty Act of

1996 (“AEDPA”),

[a]n application for a writ of habeas corpus
on behalf of a person in custody pursuant to
the judgment of a State court shall not be
granted with respect to any claim that was
adjudicated on the merits in State court
proceedings unless the adjudication of the
claim–

(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.

28 U.S.C. § 2254(d) (1996). Fuhrman raised the issue in his state

habeas proceedings that he believed the TDCJ violated his due

process rights when the TDCJ held him past his original projected

mandatory supervised release date, after taking away his good time

credits through disciplinary proceedings. Implicit in the trial

court’s and the Texas Court of Criminal Appeals’ denial of

Fuhrman’s state applications was an agreement with or acceptance of

the TDCJ’s interpretation of the statute -- implicit was the

determination that the statutory term “statutory release date” does

blood sample or other specimen under this
section. ... In Subsection (d) ..., “statutory
release date” means the date on which an
inmate is discharged from the inmate’s
controlling sentence.

TEX. GOV’T CODE ANN. § 411.148(d)-(e) (2005).

15
not include “projected mandatory supervised release date.”

Otherwise, the Texas Court of Criminal Appeals would have been

bound to hold that Fuhrman was being held in contravention of the

Texas DNA statute. See Young v. Dretke, 356 F.3d 616, 628 (5th

Cir. 2004) (“[I]n our role as a federal habeas court, we cannot

review the correctness of the state habeas court’s interpretation

of state law. Accordingly, AEDPA requires that we defer to [an]

implicit conclusion and interpretation of state law by the state

habeas court.”). Thus, we defer to this implicit holding made by

the state habeas court in interpreting state law that “statutory

release date” does not encompass “projected mandatory supervised

release date.” Accordingly, the district court erred when it

failed to defer to such interpretation. Because “projected

mandatory supervised release date” is not included in the term

“statutory release date,” Fuhrman was and is not held in

contravention of the law, especially in light of our determination

that he is eligible for DNA sampling under the Texas DNA statute.

Thus, due process is not violated.

Further, Fuhrman does not allege that his disciplinary

proceedings contravened the due process requirements set forth in

Wolff v. McDonnell, 418 U.S. 539 (1974). Therefore, Furhman was

not denied due process, and the district court erred insofar as it

held that holding him in custody violated due process.

16
For the foregoing reasons, the judgment of the district court

is REVERSED, and judgment is RENDERED for the Respondent.