*Local Rule 47.5 provides: "The publication of opinions that

have no precedential value and merely decide particular cases on

the basis of well-settled principles of law imposes needless

expense on the public and burdens on the legal profession."

Pursuant to that Rule, the Court has determined that this opinion

should not be published.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

 

No. 95-40191

Summary Calendar

 

JOSEPH ALFRED ROME, JR.,

Plaintiff-Appellant,

versus

DAN MORALES,

Defendant-Appellee.

 

Appeal from the United States District Court

for the Eastern District of Texas

(6:94 CV 450)

 

(September 20, 1995)

Before HIGGINBOTHAM, THORNBERRY, AND BARKSDALE, Circuit Judges.

PER CURIAM:*

Appellant, Joseph Alfred Rome, Jr., an inmate currently

incarcerated in the Institutional Division of the Texas Department

of Criminal Justice ("TDCJ"), appeals the dismissal of his pro se,

in forma pauperis civil rights complaint. We affirm.
 

1 The complaint as to defendant Richards was dismissed by the

district court as "frivolous as a matter of law." Rome has not

appealed this ruling.

2

Background

Rome filed a class-action suit against Morales and former

Governor Ann Richards,1 seeking declaratory and monetary relief

pursuant to 42 U.S.C. § 1983 (1988), for alleged constitutional

violations regarding the manner in which the state manages its

good-time system. He asserts, inter alia, that TCDJ's policy of

failing to restore forfeited good-time constitutes an ex post facto

violation. Rome also argues that the policy requires inmates to

serve the same prison time twice, thus resulting in double

jeopardy.

The magistrate judge found that Rome had failed to state a

claim upon which relief could be granted and recommended dismissal.

The district court adopted the magistrate's recommendations, found

Rome had stated no constitutional violation, and dismissed the

complaint with prejudice.

Discussion

Rome's primary contention centers on TEX. GOV'T CODE

§ 498.004(b), which was not in effect at the time he committed his

offense, and thus he claims its application to his sentence

constitutes an ex post facto violation. He contends that under

former TEX. CODE CRIM. PROC. art. 42.12, § 23, all credits he received

became part of his sentence and could not be lost either as a

result of the revocation of his parole in the form of mandatory
3

supervision or because of prison disciplinary proceedings. He also

asserts that TCDJ's policy violated the Texas Constitution's

prohibition on retroactive application of penal laws, and concludes

that he is entitled to be discharged fully because he has served

four years flat time and eight years of good time.

Rome also complains that he is serving the same time twice

because he lost his previously earned good-time credits following

the revocation of his mandatory supervision. He argues that,

because he did not, at the time of his release, sign the contract

agreeing to mandatory supervision, he should not have been bound by

its terms. Rome asserts the contract would have retrospectively

deprived him of calendar time previously served, and argues the

contract provisions result in ex post facto and double jeopardy

violations.

In addition, Rome argues that the district court erred in

dismissing his claim that Texas should pay money to inmates for

work performed while incarcerated. He argues that the state cannot

impose a sentence greater than the one imposed at trial, and that

he was not sentenced to a term of labor.

Finally, Rome has made certain other arguments during this

lawsuit. Rome included in his opening brief's list of issues a

claim that Texas was using county and state jails to deprive

prisoners of good time credits. In his reply brief, Rome argues

that Texas denied him due process of law by failing to inform him

that his good time credits would be lost during his eight-month
 

2 The policy behind this doctrine is to preserve the habeas

requirement that a state prisoner exhaust state remedies before

filing in federal court. See 28 U.S.C. § 2254(b-c) (1988). A

§ 1983 plaintiff need not exhaust state remedies under most

circumstances. Monroe v. Pape, 365 U.S. 167 (1961).

4

stay in county jail and by delaying his suit to regain his good

time credits.

This Court reviews de novo a trial court's dismissal of a

complaint for failure to state a claim upon which relief can be

granted. Giddings v. Chandler, 979 F.2d 1104, 1106 (5th Cir.

1992). The dismissal may be upheld "only if it appears that no

relief could be granted under any set of facts that could be proven

consistent with the allegations." Id. (internal quotation marks

and citation omitted). We are, however, free to uphold the

judgment below on any legal grounds supported by the record.

Forsyth v. Barr, 19 F.3d 1527, 1534 n.12 (5th Cir.), cert. denied,

115 S. Ct. 195 (1994). We rely on this last principle in disposing

of most of Rome's appeal.

Rome's federal ex post facto and double jeopardy claims, as

well as his arguments based on the Texas Constitution, have one

thing in common: all implicate the length of time Rome would spend

within the TDCJ system. At bottom, Rome's contention is that Texas

has kept or will keep him incarcerated for too long. That claim is

not cognizable in a suit under § 1983. The sole remedy for

challenges to the fact or length of incarceration is a habeas

proceeding under 28 U.S.C. § 2254 (1988). Heck v. Humphrey, 114 S.

Ct. 2364 (1994) (construing Preiser v. Rodriguez, 411 U.S. 475

(1973)).2 Prisoners may invoke § 1983 in, for instance, challenges
5

to the adequacy of state procedures designed to determine the

availability or duration of good time credits. The remedy in such

a case is an order to a state correctional authority to implement

a particular procedure, not an order to restore good time credits.

The latter sort of order, because it affects the length of a

prisoner's stay in a state corrections system, is available only in

a habeas proceeding.

Rome's argument that prisoners should receive payment for work

in prison lacks merit. Texas may constitutionally compel inmates

to work without pay. Wendt v. Lynaugh, 841 F.2d 619, 620-21 (5th

Cir. 1988).

Rome has defaulted on his remaining claims. Although he

included an issue concerning county and state jails in his opening

brief, he did not explain or argue this contention in the body of

the brief itself and thus has abandoned it in this appeal. See

Yohey v. Collins, 985 F.2d 222, 225 (5th Cir. 1993). We will not

consider Rome's due process argument because he raised it for the

first time in his reply brief to this court. See United States v.

Prince, 868 F.2d 1379, 1386 (5th Cir.), cert. denied, 493 U.S. 932

(1989). 

AFFIRMED.