GEORGE C. HANKS, JR., District Judge.
Petitioner Tony Henry Casey, an inmate in the custody of the Texas Department of Criminal Justice-Correctional Institutions Division ("TDCJ"), has filed a petition for a writ of habeas corpus under 28 U.S.C. § 2254. Casey proceeds pro se. Respondent has filed a motion for summary judgment (Dkt. 16) along with a copy of the state court records (Dkt. 15). Casey filed a response (Dkt. 32). After considering the pleadings and filings, the applicable law, and all matters of record, the Court will
In 1985, Casey was convicted of murder in the 183rd Judicial District Court of Harris County, case number 425325, and was sentenced to 30 years in TDCJ (Dkt. 16-1). In 1989, while incarcerated, Casey was convicted of aggravated assault with a deadly weapon in the 3rd Judicial District Court of Anderson County, case number 20,126. The court sentenced him to eight years in TDCJ, to commence "[w]hen the sentence in Cause Number 425325 . . . ceases to operate" (Dkt. 15-2, at 53).
On August 1, 2012, Casey was released to mandatory supervision (Dkt. 16-6). Respondent submits an affidavit from Brittney Vest, Program Supervisor III for TDCJ's Classification and Records Department, who has reviewed Casey's time records (Dkt. 16-2). Vest explains that "Mandatory Supervision is a type of release from prison for offenders convicted of certain offense when the combination of actual calendar time served and good conduct time equals the prison term" (id. at 4 (citing TEX. GOV'T CODE § 508.147 to § 508.149)). She states that Casey was eligible for mandatory supervision on his 1985 murder conviction, based on the law in effect at the time of his offense, but was ineligible on his 1989 aggravated assault conviction (id. at 4-5 (citing, inter alia, Ex parte Thompson, 173 S.W.3d 458, 459 (Tex. Crim. App. 2005)). For an inmate like Casey who had one offense before September 1, 1987 and another offense on or after September 1, 1987, the Texas Court of Criminal Appeals decided in 2008 that the sentences must be treated as one cumulative sentence for calculation of the inmate's release date. See Ex parte Forward, 258 S.W.3d 151 (Tex. Crim. App. 2008).
(Dkt. 16-2, at 4-5). In Casey's situation, Vest explains, the calculations on his two sentences resulted in a release date of August 1, 2012:
(id. at 5) (citations omitted).
Petitioner argues in his federal petition that the calculation of his release date based on the aggregate 38-year sentence was error and that his sentences should have been calculated separately. See, e.g., Dkt. 32, at 5-6 (arguing that TDCJ erred when it "failed to treat his two sentences sep[a]rately" and "currently has petitioner serving `38' year sentence incorrectly"); Dkt. 2, at 5 (arguing that officials erred when they released him on a single 38-year sentence). Casey also argues that he was "erroneously paroled" on his 8-year sentence in 2012 (Dkt. 1, at 7). Respondent argues that, as set forth in the Vest affidavit, Casey's aggregate 38-year sentence was correct under Forward (Dkt. 16, at 16-20).
On December 7, 2016, the Texas Board of Pardons and Paroles (the "Board") revoked Casey's parole (Dkt. 16-2, at 6). Respondent submits an affidavit from Angela Nation, Section Director of Review and Release Processing for TDCJ's Parole Division, who explains that Casey's parole was revoked because, after a hearing, "the Board determined that Offender Casey had violated two conditions of his mandatory supervision" (Dkt. 16-3, at 3-4). In particular, the hearing officer sustained violations based on Casey's failure to report to his parole officer on two occasions (September 9 and 14, 2016) and on a misdemeanor conviction for possession of marijuana (id. at 5, 17-19). Casey testified at the hearing that his problems were due to homelessness and lack of medication (id. at 20). Nation avers that the revocation process complied with due process requirements and presents the Board's records showing that Casey received notice of the hearing, attended a hearing in person before a neutral officer, was represented at the hearing by his appointed attorney, presented his own testimony in mitigation, and had the opportunity to present evidence (id. at 5-7 (citing Morrissey v. Brewer, 408 U.S. 471, 488-89 (1972)); id. at 9-25 (revocation records). The Board decided to revoke Casey's parole based on the recommendations of the hearing officer, the parole officer, and the Board analyst (id. at 5, 23-25).
Upon revocation, Casey forfeited 3 years, 9 months, and 2 days of "street time."
(Dkt. 16-2, at 6).
Casey disputes Respondent's position that he was still serving his murder sentence in 2016, when his parole was revoked. He argues that by the simple operation of time, his 30-year sentence for murder, imposed in 1985, expired and was fully discharged in 2015 while he was out on parole (Dkt. 2, at 4-5; Dkt. 32, at 5). He also argues that his street-time credit from 2012-16 was improperly forfeited and should have been factored into his 8-year sentence, and therefore that he currently should be eligible for mandatory supervision release on his 8-year sentence (id. at 5-6).
On April 24, 2017, Casey filed an administrative time credit dispute with TDCJ arguing that his credits had been calculated incorrectly. Eight days later, on May 1, 2017, TDCJ issued a "final certification decision" informing Casey that he had not submitted all required information (Dkt. 15-2, at 25). The record before the Court does not indicate that Casey ever submitted further information.
On December 21, 2017, Casey executed an application for state habeas relief (Dkt. 15-2, at 5-23), which was docketed in the in the Anderson County trial court on January 5, 2018 (id. at 5). Respondent presents evidence that Casey delivered the application to jail authorities for mailing on December 28, 2018 (Dkt. 16-5). Casey's application raised one claim, which argued that the 2012 release based on an aggregate sentence was "erroneously" and "illegally" calculated and that he had been denied street-time credit.
On April 25, 2018, Casey executed his federal habeas petition, which was docketed in this Court on April 30, 2018 (Dkt. 1). He raises four claims regarding his 2012 release, his 2016 revocation, and the calculation of time credits on his sentences:
(id. at 6-7). Casey has filed a supporting memorandum (Dkt. 2). Respondent seeks dismissal of all of Casey's claims.
Federal courts do not hold pro se habeas petitions "to the same stringent and rigorous standards as . . . pleadings filed by lawyers." Hernandez v. Thaler, 630 F.3d 420, 426 (5th Cir. 2011) (internal quotation marks and citation omitted). "The filings of a federal habeas petitioner who is proceeding pro se are entitled to the benefit of liberal construction." Id.
This federal petition for habeas corpus relief is governed by the applicable provisions of the Anti-Terrorism and Effective Death Penalty Act ("AEDPA"). See Woodford v. Garceau, 538 U.S. 202, 205-08 (2003); Lindh v. Murphy, 521 U.S. 320, 335-36 (1997). In ordinary civil cases, a district court considering a motion for summary judgment is required to construe the facts of the case in the light most favorable to the non-moving party. See Anderson v. Liberty Lobby, 477 U.S. 242, 255 (1986). "As a general principle, Rule 56 of the Federal Rules of Civil Procedure, relating to summary judgment, applies with equal force in the context of habeas corpus cases." Clark v. Johnson, 202 F.3d 760, 764 (5th Cir. 2000). However, AEDPA modifies summary judgment principles in the habeas context, and Rule 56 "applies only to the extent that it does not conflict with the habeas rules." Smith v. Cockrell, 311 F.3d 661, 668 (5th Cir. 2002), overruled on other grounds by Tennard v. Dretke, 542 U.S. 274 (2004); see Torres v. Thaler, 395 F. App'x 101, 106 n.17 (5th Cir. 2010).
Respondent seeks summary judgment based on the statute of limitations (
Because Casey filed this habeas petition after the April 24, 1996 effective date for the Antiterrorism and Effective Death Penalty Act of 1996 (the "AEDPA"), his federal habeas petition is subject to the AEDPA's one-year limitations period. The limitations period runs from the latest of four accrual dates:
28 U.S.C. § 2244(d)(1). The time period during which a "properly filed application for State post-conviction or other collateral review" is pending is not counted toward the limitation period. Id. § 2244(d)(2).
Respondent argues that Claims 1, 3, and 4 are time-barred under § 2244(d)(1)(D) because their factual predicate could have been discovered more than one year before Casey's petition was filed.
In this case, the one-year period began to run for Claims 1, 3, and 4 on December 7, 2016, when Casey's parole was revoked, at the latest.
AEDPA's limitations period is tolled by a "properly filed application for State post-conviction or other collateral review." 28 U.S.C. § 2244(d)(2). Respondent acknowledges that Casey's filing period for Claims 1 and 3 was tolled by his administrative time credit dispute resolution form, which was pending for 8 days (Dkt. 16, at 8 (citing Stone v. Thaler, 614 F.3d 136, 139 (5th Cir. 2010)). This extended Casey's limitations period to Friday, December 15, 2017. Casey's state habeas application, which was filed on December 21, 2017 at the earliest,
Casey does not argue that he is entitled to equitable tolling under the relevant authorities.
Claims 1, 3, and 4 must be dismissed as untimely filed. The Court need not reach Respondent's arguments that the claims also fail on their merits. However, to the extent Casey's claims are based on his arguments that Texas authorities have misapplied Texas statutes or case authority, he fails to state a claim for federal habeas relief for the reasons explained below regarding Claim 2.
In Claim 2, Casey claims that officials are denying him release on mandatory supervision for his 8-year sentence (Dkt. 1, at 6; Dkt. 2, at 5). Respondent argues that Casey has not presented Claim 2 to the Texas Court of Criminal Appeals and therefore failed to exhaust state remedies (Dkt. 16, at 12-14). See 28 U.S.C. § 2254(b)(1); Young v. Davis, 835 F.3d 520, 525 (5th Cir. 2016); Nickleson v. Stephens, 803 F.3d 748, 753 (5th Cir. 2015). Casey asserts in his summary judgment briefing that his claims are exhausted (Dkt. 32, at 8).
The Court need not decide whether Casey's state habeas application was the "substantial equivalent" of Claim 2 for exhaustion purposes, see Young, 835 F.3d at 525, because the claim fails on its merits.
(Dkt. 16-2, at 4). Nevertheless, TDCJ released him in 2012, in compliance with the Texas Court of Criminal Appeals' decision in Forward, because he was eligible for mandatory supervision on his 1985 murder conviction. His release date therefore was calculated based on an aggregate 38-year sentence. See Forward, 258 S.W.3d at 155. However, when his parole was revoked, Casey forfeited his street-time credit. After his revocation, Casey will be eligible for mandatory supervision release on the aggregate 38year sentence in 2020 at the earliest (Dkt. 16-2, at 5).
Casey argues strenuously that he actually is eligible for mandatory supervision under Texas law, that TDCJ has miscalculated his release date, that TDCJ has improperly considered him for "discretionary" rather than "non-discretionary" mandatory supervision, that TDCJ improperly forfeited his time credits, and that Forward and other Texas case authorities cited by Respondent do not apply to him (Dkt. 32, at 8-15).
Finally, to the extent Casey claims that TDCJ violated his due process rights when they denied him release on discretionary parole since his revocation,
Because federal habeas relief is not available for Casey's claims regarding state law issues, Claim 2 will be dismissed.
Habeas corpus actions under 28 U.S.C. § 2254 or § 2255 require a certificate of appealability to proceed on appeal. 28 U.S.C. § 2253(c)(1); Miller-El v. Cockrell, 537 U.S. 322, 335-36 (2003). Rule 11 of the Rules Governing Section 2254 Cases requires a district court to issue or deny a certificate of appealability when entering a final order that is adverse to the petitioner.
A certificate of appealability will not issue unless the petitioner makes "a substantial showing of the denial of a constitutional right," 28 U.S.C. § 2253(c)(2), which requires a petitioner to demonstrate "`that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong.'" Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S. 473, 484 (2000)). Under the controlling standard, a petitioner must show "that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were adequate to deserve encouragement to proceed further." Miller-El, 537 U.S. at 336 (internal citation and quotation marks omitted). Where denial of relief is based on procedural grounds, the petitioner must show not only that "jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right," but also that they "would find it debatable whether the district court was correct in its procedural ruling." Slack, 529 U.S. at 484.
A district court may deny a certificate of appealability sua sponte without requiring further briefing or argument. Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000). After careful review of the pleadings and the applicable law, the Court concludes that reasonable jurists would not find its assessment of the claims debatable or wrong. Because the petitioner does not allege facts showing that his claims could be resolved in a different manner, a certificate of appealability will not issue in this case.
Based on the foregoing, the Court
The Clerk will provide copies of this order to the parties.
Id. at 152-53 (internal quotation marks and footnotes omitted).
After revocation, Casey's maximum expiration date on his sentence is June 5, 2026. Vest states that, as of June 27, 2018, the earliest date he could be released to mandatory supervision was May 28, 2020, subject to fluctuation depending on his accumulation of good time credits (Dkt. 16-2, at 5). TDCJ's publicly available online records currently reflect a "projected release date" of April 29, 2020. See Offender Information Details, available at https://offender.tdcj.texas.gov/OffenderSearch/offenderDetail.action?sid=03542280 (last visited Aug. 26, 2019).
