United States District Court, W.D. Texas, Austin Division
REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE
HIGHTOWER, UNITED STATES MAGISTRATE JUDGE.
HONORABLE LEE YEAKEL, UNITED STATES DISTRICT JUDGE.
Magistrate Judge submits this Report and Recommendation to
the District Court pursuant to 28 U.S.C. §636(b) and
Rule 1(e) of Appendix C of the Local Court Rules of the
United States District Court for the Western District of
Texas, Local Rules for the Assignment of Duties to United
States Magistrate Judges.
the Court is Petitioner's Application for Habeas Corpus
Relief under 28 U.S.C. § 2254 (Document 1). Petitioner,
proceeding pro se, has been granted leave to proceed in forma
pauperis. For the reasons set forth below, the undersigned
finds that Petitioner's application for writ of habeas
corpus should be denied.
STATEMENT OF THE CASE
Director has custody of Petitioner pursuant to two judgments
and sentences of the 147th Judicial District Court of Travis
County, Texas in cause numbers 3031226 and 3031234.
Petitioner was convicted of robbery in both cases and
sentenced to 16 years in prison. Petitioner was released on
parole in 2008 but had his parole revoked nine years later.
On May 22, 2018, Petitioner was convicted of a new offense in
Hays County and sentenced to two years in prison. Petitioner
does not challenge his robbery convictions. Rather, he
challenges the denial of his street time while he was out on
challenged the calculation of his sentence in a state
application for habeas corpus relief executed on April 5,
2019. The Texas Court of Criminal Appeals denied the
application without written order on July 3, 2019. Ex
parte Brittenham, No. 89, 909-02.
DISCUSSION AND ANALYSIS
appears to have exhausted his state court remedies with
respect to his claims for street-time credit. Therefore, the
scope of this Court's review is determining whether the
adjudication of Petitioner's claim by the state court
either (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.
See 28 U.S.C. § 2254(d).
is not entitled to street-time credit after his revocation.
The law in this circuit firmly establishes that time spent on
parole or mandatory supervision does not operate to reduce
the sentence of a parole or mandatory supervision violator
returned to prison. The courts have consistently held that by
violating parole or mandatory supervision a prisoner forfeits
all credit of good conduct time accumulated prior to release
and all credit for time on parole or mandatory supervision
before the violation. See Cortinas v. United States
Parole Comm'n, 938 F.2d 43 (5th Cir. 1991);
Munguia v. United States Parole Comm'n, 871 F.2d
517, 521 (5th Cir. 1989); United States v. Newton,
698 F.2d 770, 772 (5th Cir. 1983); Starnes v.
Cornett, 464 F.2d 524 (5th Cir. 1972); Betts v.
Beto, 424 F.2d 1299 (1970). Thus, Petitioner has no
federal constitutional right to reduction of his sentence for
time spent on parole. Additionally, the Court notes parole
and mandatory supervision conditions are not additional to,
but rather part of, the original sentence. See Coronado
v. United States Board of Parole, 540 F.2d 216, 218 (5th
Cir. 1976); Sturgis v. United States, 419 F.2d 390
(5th Cir. 1969).
does Petitioner's loss of street-time credit constitute
cruel and unusual punishment or unlawfully alter and extend
his sentence. Requiring a prisoner to serve his assessed
sentence in a manner consistent with Texas law is not
unconstitutional. Rummel v. Estelle, 445 U.S. 263,
268- 69 (1980). Petitioner violated the terms of his parole,
and as a result, lost any credit for the time he spent on
also has not established an equal-protection violation.
Petitioner appears to argue the denial of street-time credit
violates his right to equal protection because some offenders
receive street-time credit after their parole is revoked.
However, Petitioner does not identify any similarly situated
prisoners, that is, prisoners serving sentences for robbery,
who were treated differently. See Sonnier v.
Quarterman, 476 F.3d 349, 367 (5th Cir. 2007). All
offenders serving sentences for robbery are denied
also is not entitled to his street-time credit under Texas
law. The Texas parole statute in effect at the time the
controlling offenses were committed in 2003 provides in
If the parole, mandatory supervision, or conditional pardon
of a person described by Section 508.149(a) is revoked, the
person may be required to serve the remaining portion of the
sentence on which the person was released. The remaining
portion is computed without credit for the time ...