UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 00-40820
FERNANDO THOMPSON,
Petitioner-Appellant,
VERSUS
JANIE COCKRELL, Director, Texas Department
of Criminal Justice, Institutional Division,
Respondent-Appellee.
Appeal from the United States District Court
for the Eastern District of Texas
August 23, 2001
Before EMILIO M. GARZA, PARKER, and DENNIS, Circuit Judges.
ROBERT M. PARKER, Circuit Judge:
Fernando Thompson appeals the district court’s denial of his
application for writ of habeas corpus under 28 U.S.C. § 2254.
Thompson argues that he is entitled to calendar time for the period
in which he was erroneously released from Texas prison and placed
on mandatory supervision. Thompson also seeks reinstatement of the
good time credits that he accrued before his release.
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I. Facts
Fernando Thompson pleaded guilty to rape and aggravated rape
of a child and was sentenced to concurrent twenty-year and thirty-
year prison terms. The Texas district court erroneously gave
Thompson credit for calendar time served beginning May 14, 1982
instead of October 27, 1982, the day Thompson actually began
serving his sentence. Based on his accrued good time credits and
calendar time, the Texas Department of Corrections released
Thompson under mandatory supervision on September 9, 1993, 166 days
early. Thompson violated the conditions of his release and
returned to custody on February 2, 1995. After Thompson’s
revocation hearing, the Texas Board of Pardons and Parole denied
Thompson credit against his sentence for the one year, four months,
and twenty-three days he was at liberty. The Board also concluded
that Thompson forfeited his good time credits he accrued before his
release.
After pursuing his state remedies, Thompson filed an
application under 28 U.S.C. § 2254 for writ of habeas corpus.1
1
Thompson filed five state applications for writ of habeas
corpus. Thompson raised the issues addressed in this appeal in his
fifth application, which the Texas court dismissed pursuant to the
Texas abuse of writ statute. The Respondent claims for the first
time on appeal that Thompson is procedurally barred from federal
habeas corpus review. Although Respondent waived the argument,
this Court has discretion to apply the procedural bar on appeal.
See Fisher v. State of Texas, 169 F.3d 295, 300-02 (5th Cir. 1999)
(refusing to apply the procedural bar when the state raised the
issue for the first time in its appellate brief). For the reasons
outlined in Fisher, we choose not to overlook the state’s waiver of
2
Thompson alleged that the Board should have reinstated his good
time credits because he was prematurely released through no fault
of his own. Respondent argued that Thompson’s accrued good time
credits were forfeited and that reinstatement of his credits was
discretionary, not mandatory. The district court denied Thompson
relief without addressing whether an erroneous release precludes
forfeiture of calendar time and good–time credits upon revocation
of mandatory supervision. On appeal, we vacated the district
court’s judgment and remanded the matter for consideration of the
affect of Thompson’s erroneous release.
On remand, the district court, adopting the magistrate judge’s
recommendation, concluded that Thompson had not established a due
process violation. We granted Thompson a certificate of
appealibility and directed him to brief the due process
implications concerning forfeiture of good time credits and denial
of credit for the time spent at liberty due to his premature
release.
II. Discussion
“In conducting habeas review, a federal court is limited to
deciding whether a conviction violated the Constitution, laws, or
treaties of the United States.” Estelle v. McGuire, 502 U.S. 62,
68 (1991). We review the district court’s findings of fact for
the issue in this case. See id. at 302.
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clear error and review its conclusions of law de novo. See Beazley
v. Johnson, 242 F.3d 248, 255 (5th Cir. 2001). Thompson argues
that the Texas Board of Pardons and Paroles violated his right to
due process under the Fourteenth Amendment by revoking the good
time credits he accrued before his release and denying him calendar
time for the duration of his mandatory supervision. Thompson’s
argument requires us to determine whether he has a liberty interest
in his good time credits and calendar time.
Liberty interests emanate from either the Due Process Clause
itself or from state law. See Kentucky Dept. of Corrections v.
Thompson, 490 U.S. 454, 460 (1989). Liberty interests arising from
state law are “generally limited to freedom from restraint which,
while not exceeding the sentence in such an unexpected manner as to
give rise to protection by the Due Process Clause of its own force,
nonetheless impose[] atypical and significant hardship on the
inmate in relation to the ordinary incidents of prison life.”
Sandin v. Conner, 515 U.S. 472, 484 (1995) (citations omitted).
Only those state-created substantive interests that “inevitably
affect the duration of [a prisoner’s] sentence” may qualify for
constitutional protection. Id. at 487. See also Orellana v. Kyle,
65 F.3d 29, 31-32 (5th Cir. 1995).
Thompson cites Ex parte Morris, 626 S.W.2d 754 (Tex. Crim.
App. 1982) (en banc), in support of his due process claim. In
Morris, a Texas prisoner was erroneously released on mandatory
4
supervision due to an error that occurred in Morris’s inmate
tracking form. The tracking form listed the date his sentence
commenced as two years before the date he began serving time. See
id. at 755. Morris spent slightly over a year on mandatory
supervision before breaking the terms of his release. See id. The
Texas Board of Pardons and Paroles revoked his mandatory supervised
release and refused to reinstate Morris’s good time credits. See
id. The Board also refused to credit the time he spent on release
as calendar time toward the remainder of his sentence. See id.
The Texas Court of Criminal Appeals granted Morris’s application
for writ of habeas corpus. The court, relying on the Texas rule
that a prisoner must not serve his sentence in installments, held
that the time Morris spent during mandatory supervision should be
credited as calendar time toward his sentence. See id. at 756-57.
The court also held that Morris would have a constitutional liberty
interest in his good time credits if the record reflected that
Morris accrued good conduct time before his release. See id. The
court based this conclusion on Wolff v. McDonnell, 418 U.S. 539
(1974), rather than the rule governing calendar time for erroneous
release. See id.
We address Thompson’s contentions regarding calendar time
and good time separately.
A. Calendar Time
Under federal law, a prisoner does not receive credit towards
5
his calendar time for time spent on parole if the prisoner violates
the conditions of his release. See United States v. Newton, 698
F.2d 770, 772 (5th Cir. 1983); Starnes v. Connett, 464 F.2d 524
(5th Cir. 1972); Betts v. Beto, 424 F.2d 1299, 1300 (5th Cir.
1970). Likewise, Texas statutory law allows the Board of Pardons
and Paroles to disregard the time a prisoner spends on mandatory
supervision. See TEX. GOV’T CODE ANN. § 508.283(b).2 The Texas and
federal laws do not raise constitutional concerns. See Morrison v.
Johnson, 106 F.3d 127, 129 n.1 (5th Cir. 1997). Thompson therefore
does not have a liberty interest grounded in either a state law or
the Due Process Clause itself that would require the Texas
Department of Corrections to credit Thompson’s accrued calendar
time with the time he appropriately spent on mandatory supervision.
Thompson argues, however, that the state’s denial of his calendar
time after his premature release violates his right to due process
because he was not properly released in the first place.
The Due Process Clause of the Fourteenth Amendment prohibits
state acts that exceed a prisoner’s sentence in an unexpected
manner. See Sandin, 515 U.S. at 484. See also Washington v.
Harper, 494 U.S. 210, 221 (1990); Vitek v. Jones, 445 U.S. 480, 493
(1980); Meachum v. Fano, 427 U.S. 215, 225 (1976). Requiring
Thompson to complete the remainder of his sentence after his
2
The statutory language has remained substantively unchanged
since 1965. See Ex parte Canada, 754 S.W.2d 660, 661 n.2 (Tex.
Crim. App. 1988). Thompson committed his offense in 1982.
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premature release does not exceed his sentence in an unexpected
manner. Hence, the Due Process Clause does not by itself prohibit
states from denying prisoners calendar time after an erroneous
release. See Wooten v. Wilkinson, 265 F.2d 211, 212 (1959). See
also Piper v. Estelle, 485 F.2d 245, 246 (holding that due process
is not violated when a state reincarcerates a prisoner who had not
completed his sentence, as long as the state did not unequivocally
waive interest in the prisoner). We therefore must look to Texas
law to determine whether Thompson has a liberty interest in
calendar time due to his premature release.
Thompson relies on the following rule restated in Ex Parte
Morris: “A sentence must be continuous and a prisoner or inmate
cannot be required to serve his sentence in installments, unless it
is shown that a premature or unlawful release of the prisoner or
inmate resulted or occurred through some fault on the part of the
prisoner or inmate.” See Morris, 626 S.W.2d at 757-58. See also
Ex parte Millard, 48 S.W.3d 190 (Tex. Crim. App. 2001); Ex parte
Hurd, 613 S.W.2d 742 (Tex. Crim. App. 1981); Ex parte Tarlton, 582
S.W.2d 155 (Tex. Crim. App. 1979); Ex parte Esquivel, 531 S.W.2d
339 (Tex. Crim. App. 1976). The law in Texas from the time of
Thompson’s offense to the present requires the State to credit
Thompson for time after an erroneous release, so long as Thompson
was not at fault. See Morris, 626 S.W.2d at 757. Texas law
therefore grants Thompson a legal entitlement to calendar time
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during the period of his premature release.
In order for the legal interest conferred by Texas law to
merit protection under the Fourteenth Amendment, Thompson’s
interest must amount to a “freedom from restraint which, while not
exceeding the sentence in such an unexpected manner as to give rise
to protection by the Due Process Clause of its own force,
nonetheless imposes atypical and significant hardship on the inmate
in relation to the ordinary incidents of prison life.” Sandin, 515
U.S. at 484 (citations omitted). Only deprivations of interests
that “clearly impinge on the duration of confinement . . . will .
. . qualify for constitutional ‘liberty’ status.” See Orellana, 65
F.3d at 31-32.
By denying Thompson calendar time for his erroneous release,
the Texas Board of Pardons and Paroles denied Thompson credit
toward his sentence that he was entitled to receive under Texas
law. The deprivation of calendar time inevitably affected the
duration of Thompson’s confinement. Cf. Bulger v. United States
Bureau of Prisons, 65 F.3d 48, 50 (5th Cir. 1995) (holding that
loss of ability to accrue good time credits does not inevitably
affect the duration of a sentence); Orellana, 65 F.3d at 32
(holding that procedures relating to Texas parole do not inevitably
affect the duration of confinement because Texas parole statutes do
not confer a liberty interest). We conclude that Thompson has a
liberty interest in the calendar time following his erroneous
8
release, which entitles him to the procedural protections set forth
in Wolff. See Sandin, 515 U.S. at 487.
“The touchstone of due process is protection of the individual
against arbitrary action of government . . ..” Wolff, 418 U.S. at
558. The constitutional purpose of ensuring adequate procedure “is
to protect a substantive interest to which the individual has a
legitimate claim of entitlement.” Olim v. Wakinekona, 461 U.S.
238, 250 (1983). Once it is established that a prisoner has a
liberty interest in his calendar time, “the loss of such [calendar
time] threatens his prospective freedom from confinement by
extending the length of imprisonment. Thus the inmate has a strong
interest in assuring that the loss of [calendar time] is not
imposed arbitrarily.” Superintendent, Massachusetts Correctional
Inst., Walpole v. Hill, 472 U.S. 445, 454 (1985).3 While
protection of an inmate’s liberty interest through procedural
requirements must be balanced with the institutional needs of
prisons, the Supreme Court has required prison officials to present
at least some evidence in support of its decision to deprive an
inmate of his state-created interest. See id. at 455-56; Edward v.
Balisok, 520 U.S. 641, 648 (1997); Hudson v. Johnson, 242 F.3d 534,
3
Hill involved a prisoner’s liberty interest in good time credits
under Massachusetts law. Thompson’s interest in calendar time is
equally as strong as the inmate’s liberty interest in Hill. The
denial of Thompson’s calendar time, like the forfeiture of good
time credits, will inevitably affect the length of his
imprisonment. See Hill, 472 U.S. at 454.
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536 (5th Cir. 2001).4
Respondent has not provided any evidence to support its denial
of Thompson’s calendar time, nor does the record contain evidence
demonstrating that Thompson should not be credited with the time
following his mandatory release.5 In fact, the Texas Department of
Corrections conceded that Thompson was not responsible for the
clerical error that led to his early release. The decision to deny
Thompson credit for calendar time was therefore arbitrary and
inconsistent with the minimum requirements of due process. See
Johnson v. Rodriguez, 110 F.3d 299, 308 (5th Cir. 1997) (“The
protections of the Due Process Clause are only invoked when State
procedures which may produce erroneous or unreliable results
imperil a protected liberty or property interest.”). Thompson is
entitled to calendar time for the time he spent on mandatory
4
Other procedural requirements include notice, an opportunity to
present evidence, and written findings in support of the ruling.
See Hill, 472 U.S. at 454.
5
Respondent argues that Thompson is not entitled to calendar time
as a result of Thompson’s conduct leading to the revocation of his
release. See TEX. GOV’T CODE ANN. § 508.283(c). Under section
508.283(c), a parole panel may require an inmate to serve the
remainder of his sentence without credit for time on mandatory
supervision once the panel has held a hearing and determined that
the person has violated the terms of his supervised release. See
id. However, Texas law also requires officials to credit an
inmate’s sentence with the time the prisoner spent on mandatory
supervision once it is determined that the prisoner was erroneously
released through no fault of his own. See Millard, 48 S.W.3d at
192; Morris, 626 S.W.2d at 757-58. Texas officials therefore were
required to present some evidence demonstrating that Thompson was
not entitled to credit for calendar time after his erroneous
release.
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supervised release.
B. Good Time Credits
In Malchi v. Thaler, 211 F.3d 953, 956 (5th Cir. 2000), we
concluded that Texas prisoners have “a constitutional expectancy of
early release created by Texas’s mandatory supervision scheme in
place prior to September 1, 1996 for earned good time credits.”
Id. Like the statutes at issue in Wolff v. McDonell, 418 U.S. at
545-55, Texas statutes allow for mandatory sentence reductions for
good behavior and revocation of good conduct time for subsequent
misbehavior. See Madison, 104 F.3d at 768-69. Texas prisoners
forfeit good time credit upon revocation of parole or mandatory
supervision. See TEXAS GOV’T CODE § 498.004.6 “However, when a state
creates a right to good time credit and recognizes that its
revocation is an authorized sanction for misconduct, a prisoner’s
interest therein is embraced within the Fourteenth Amendment’s
liberty concerns so as to entitle him to those minimum procedures
appropriate under the circumstances and required by the due process
clause to insure that this state-created right is not arbitrarily
abrogated.” Malchi, 211 F.3d at 959 (citing Wolff, 418 U.S. at
557).
Thompson does not argue that he did not receive a fair hearing
6
Texas statutes allowed for the forfeiture of good conduct time
upon revocation of mandatory release since 1977. See Ex Parte
Henderson, 645 S.W.2d 469, 471 (Tex. Crim. App. 1983) (en banc)
(citing Article 6181-1, Sec. 4, V.A.C.S. (effective August 29,
1977)).
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after he violated the conditions of his release. Rather, he argues
that he has was deprived of his liberty interest in earned good
time credits because of his premature release. To support his
claim, Thompson again relies on Ex parte Morris, which determined
that an erroneously released prisoner is entitled to restoration of
good time credit as a matter of constitutional due process. See
Morris, 626 S.W.2d at 757 (relying on Wolff in support of its
conclusion). Because we are not bound by a state court’s
interpretation of the federal Constitution, we make our own
determination of whether Thompson had a liberty interest in the
reinstatement of his good time credits after his premature release.
See Grantham v. Avondale Indus., Inc., 964 F.2d 471, 473 (5th Cir.
1992). See also Madison v. Parker, 104 F.3d 765, 766 (5th Cir.
1997) (“The identification of the liberty interests that are
protected by the Due Process Clause is a question of federal
constitutional law . . ..”). There is no Texas law abrogating
forfeiture of good time credits when a prisoner is prematurely
released. See, e.g., Hallmark v. Johnson, 118 F.3d 1073, 1079-80
(5th Cir. 1997) (“Because the state statutes have . . . vested
complete discretion with the state correctional authorities on the
issue of restoration of good time credits forfeited for
disciplinary infractions, there is no protected liberty interest in
the restoration of good time credits . . ..”).
Without some state-created right to reinstatement of good time
12
credits after an erroneous release, Thompson cannot prevail on his
due process claim for lost good conduct time simply because the
Texas Department of Correction’s erroneously calculated his
mandatory release date. The Texas statute in place prior to
September 1, 1996 provided Thompson with a constitutional
expectancy of early release. See Malchi, 211 F.3d at 957-58.
Thompson was released even earlier than he expected. Thompson
broke the conditions of his release and received a hearing. The
Texas Department of Correction’s clerical error had no affect on
Thompson’s liberty interest in his earned good time credits.
Rather, Thompson’s own misconduct during mandatory supervision led
to the forfeiture of his previously earned good conduct time.
Thompson is therefore not entitled to reinstatement of the good
conduct time he earned prior to his release.
III. Conclusion
Thompson established a violation of his due process rights
under the Fourteenth Amendment as a result of the State’s refusal
to credit toward the remainder of his sentence the time he spent on
mandatory supervision. Thompson, however, failed to show a due
process violation concerning the forfeiture of the good time
credits he earned prior to his release. We therefore REVERSE the
district court’s judgment dismissing Thompson’s § 2254 application
for writ of habeas corpus and REMAND to the district court for
proceedings consistent with this opinion. Thompson’s remaining
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motions carried with this case are DENIED.
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