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Brittenham v. Davis

United States District Court, W.D. Texas, Austin Division

August 6, 2019





         The 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.

         Before 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.


         The 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 parole.

         Petitioner 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.


         Petitioner 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).

         Petitioner 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).

         Nor 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 parole.

         Petitioner 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 street-time credit.

         Petitioner also is not entitled to his street-time credit under Texas law. The Texas parole statute in effect at the time the controlling offenses ...

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