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Johnson v. Davis

United States District Court, N.D. Texas, Fort Worth Division

June 10, 2019

ALAN WADE JOHNSON, Petitioner,
v.
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

          MEMORANDUM OPINION AND ORDER

          JOHN McBRYDE, UNITED STATES DISTRICT JUDGE

         This is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 filed by petitioner, Alan Wade Johnson, a federal prisoner incarcerated in FCI Butner II in Butner, North Carolina, against Lorie Davis, Director of the Correctional Institutions Division of the Texas Department of Criminal Justice (TDCJ), respondent. After having considered the pleadings, state court records, and relief sought by petitioner, the court has concluded that the petition should be dismissed as an unauthorized successive petition.

         I. Factual and Procedural History

         In May 1976, pursuant to a plea agreement, petitioner pleaded guilty in Tarrant County, Texas, to aggravated robbery (No. 6879), aggravated sexual abuse (No. 6880), and aggravated rape (No. 5486) and was sentenced to three concurrent 50-year sentences in the Correctional Institutions Division of the Texas Department of Criminal Justice (TDCJ). (Resp't's Preliminary Answer, Ex. A. at 2.) On January 30, 1990, petitioner was paroled on his three Tarrant County convictions with a maximum discharge date of October 15, 1996, pursuant to the "Pre-65th Legislature." (Pet., Ex. 2.) His parole was revoked on May 15, 1991, due to pending criminal charges in El Paso County, Texas. (Resp't's Preliminary Answer, Ex. A. at 3.) In February 1994 petitioner was convicted by a jury in El Paso County of enhanced aggravated robbery (No. 61331) and received a life sentence to commence when his 50-year sentences ceased to operate. (Pet., Ex. 1.)

         As set forth in the affidavit of Charley Valdez with TDCJ's Classification and Records Department,

[c]umulative sentences involving both pre-and post-1987 offenses are added together and treated as one sentence for the purpose of determining parole eligibility and sentence discharge date. Ex parte Forward, 258 S.W.3d 151, 155 (Tex. Crim. App. 2008). [Petitioner]'s 50-year sentences in Cause Numbers 5486, 6879, and 6880 were added to the life sentence in Cause Number 61331. He was credited with 1186 days of pre-sentence jail credit, and the cumulative sentence begin date was changed from 03/04/1976 to 03/16/1973. Ex parte Bynum[, ] 772 S.W.2d 113, 114-15 (Tex. Crim. App. 1989).

(Resp't's Preliminary Answer, Ex. A at 4.) Thus, under this "stacking" scheme, TDCJ is calculating his sentences as one life sentence.

         On October 8, 2012, petitioner was released on parole in all four cases to a federal detainer. (Resp't's Preliminary Answer, Ex. A. at 4, ) Petitioner is currently incarcerated in the Federal Bureau of Prisons for federal firearms offenses. (J., United States v. Johnson, Criminal Action No. 3: 93-cr-00460-DB-1, doc. 65.)

         By way of this petition, petitioner challenges the state's "stacking'' scheme treating his 50-year sentences as one life sentence. Specifically, he raises the following claims for relief:

(1) his 50-year sentences imposed in 1976 "have been altered (illegally extended) to LIFE when he was deprived of his earned commutation good conduct time on his 1975 offenses already acquired by him pursuant to the laws existing when [the] offenses occurred"; and
(2) TDCJ is denying him his "STATUTORY DISCHARGE PAPERS in accordance with Texas Government Code § 500.016, as required by the law in effect when his offenses occurred."

(Pet. 7-8.) He seeks the following relief:

[t]he State of Texas recalculate my three (3) 50-year sentences to discharge on May 20, 1994, notify all state agencies of discharge, issue discharge certificates in a [11] three (3) sentences, issue new Parole Certificate for Cause NO. 61331, and recalculate LIFE sentence begin date of May 20, 1994, and ...

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