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Casey v. Davis

United States District Court, S.D. Texas, Galveston Division

August 27, 2019

TONY HENRY CASEY, TDCJ # 00402530, Petitioner,
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.



         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 dismiss Casey's claims for the reasons explained below.

         I. BACKGROUND

         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).[1] Casey's habeas petition does not challenge either conviction.

         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).[2] Vest explains the impact of Forward on cases like Casey's:

Consecutive sentences involving both pre- and post-09/01/1987 offenses are added together (cumulated) and treated as one unit (cumulative sentence) for the purpose of determining parole eligibility and the discharge date. Ex parte Forward, 258 S.W.3d 151, 155 (Tex. Crim. App. 2008). In order to determine the final mandatory supervision date, however, the projected release date for all mandatory-supervision-eligible sentences is calculated, and then the length of all mandatory-supervision-ineligible sentences is added to that date to arrive at a final mandatory supervision release date. Id.

(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:

Offender Casey's mandatory supervision date for the eligible sentence, cause number 425325, was calculated as 08/01/2004. Offender Casey was not released on this date because of the consecutive 8-year sentence in cause number 20, 126, which is not eligible for mandatory supervision. Offender Casey, therefore, had to serve 8 years past the calculated date of 08/01/2004 before release to mandatory supervision. Offender Casey was released from TDCJ custody to mandatory supervision on 08/01/2012. Offender Casey's discharge date on the 38-year aggregate sentence was calculated at the time of his release to mandatory supervision as 09/04/2022.

(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.”[3] Vest explains that Casey forfeited the time because in 2016, when his parole was revoked, he was still serving his murder sentence, which had been aggregated into a single 38-year sentence when he was released in 2012. Under Texas statute in effect in 2016, at the time of his revocation, Casey was not eligible for street-time credit because he was serving a sentence for murder:

Because Offender Casey was serving a sentence for an offense listed under Texas Government Code, Section 508.149(a), murder, at the time of revocation, he was not eligible for street-time credit and was charged with out of custody for time spent on supervision: 3 years, 9 months, and 2 days. Tex. Gov't Code § 508.283(b).

(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.[4] The trial court did not issue findings of facts and conclusions of law (Dkt. 15-2, at 2). On March 28, 2018, the Texas Court of Criminal Appeals denied Casey's application without written order (Dkt. 15-1).

         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:

1. Officials “erroneously parole[d]” Casey in 2012 “as a 38 [year] single sentence” before Casey was eligible for parole on his 8-year sentence, and denied him street-time credit for the “erroneous release” when his parole was revoked in 2016;
2. Casey is eligible under a previously effective statute for release on mandatory supervision for his 8-year sentence, but officials have denied release;
3. Officials are illegally incarcerating Casey after his 2016 revocation because his 30-year sentence for murder “expired on parole in 2015”;
4. Officials illegally denied Casey release on mandatory supervision for his 8-year sentence and failed to apply “old law, ” in violation of the Ex Post Facto Clause.

(id. at 6-7). Casey has filed a supporting memorandum (Dkt. 2). Respondent seeks dismissal of all of Casey's claims.

         II. LE ...

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