* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion

should not be published and is not precedent except under the limited

circumstances set forth in 5TH CIR. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 05-20944

Summary Calendar

HUEY P WALTERS,

Petitioner-Appellant

v.

NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF

CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

Respondent-Appellee

Appeal from the United States District Court

for the Southern District of Texas

USDC No. 4:05-CV-1026

Before KING, DAVIS, and CLEMENT, Circuit Judges.

PER CURIAM:*

Huey P. Walters, Texas prisoner # 501052, appeals the district court’s

denial of his 28 U.S.C. § 2254 petition for failure to exhaust his state court

remedies and, in the alternative, grant of the respondent’s motion for summary

judgment with regard to the award of his educational good-time credits.

The district court erred in denying Walters’s § 2254 petition for failure to

exhaust. Although the state habeas trial court recommended that Walters’s

United States Court of Appeals

Fifth Circuit

F I L E D

December 13, 2007

Charles R. Fulbruge III

Clerk
No. 05-20944

2

state habeas application be “dismissed” on procedural grounds, the Texas Court

of Criminal Appeals “denied” the application. Under this court’s precedent,

because Walters’s state habeas application was “denied,” it was adjudicated on

the merits and not dismissed on procedural grounds. Miller v. Johnson, 200

F.3d 274, 281 (5th Cir. 2000); see Ex parte Torres, 943 S.W.2d 469, 472 (Tex.

Crim. App. 1997). The record shows that Walters filed his state habeas

application after he filed his time-credit dispute resolution forms and more than

180 days had passed without a response and, thus, contrary to the state habeas

trial court’s finding, Walter was not precluded from raising his time-credit

claims in his state habeas application. See TEX. GOV’T CODE ANN. § 501.0081

(West 2004); Ex parte Stokes, 15 S.W.3d 532, 533 (Tex. Crim. App. 2000).

Walters argues that the state created a liberty interest in the award of

educational good-time credits and that prison officials failed to award him all of

the good-time credits to which he was entitled upon completion of his college

degree in December 2003. Walters also asserts that by not backdating his

educational credits prison officials have lengthened his sentence in violation of

the Ex Post Facto Clause.

The district courtfound that Walters failed to show that he did not receive

the proper amount of time credits following his completion of an educational

program and failed to dispute the respondent’s assertion that he could earn no

more credits than he was currently receiving. However, the district court

granted summary judgmentto the respondent and,thus, it was the respondent’s

burden to show that there were no errors in how credits were awarded to

Walters. See FED. R. CIV. P. 56(c). Walters’s time record is not in the record on

appeal, and there was no summary judgment evidence showing that Walters was

not entitled to ten additional good-time credits upon the completion of his college

degree or showing how many credits he was awarded. The summary judgment

evidence presented by the respondent contained only a conclusional assertion

that there were no errors in the calculation of Walters’s sentence. Thus, the
No. 05-20944

3

district court erred in granting summary judgment to the respondent based on

Walters’s failure to show that he did not receive the proper amount of credits to

which he is entitled.

The district court also erred in determining that, even assuming that

Walters did not receive the proper of amount of credits, Walters was not entitled

to federal habeas relief because, under Texas law, good-time credits do not affect

an inmate’s term of imprisonment. It is well settled that Texas inmates, such

as Walters, who are eligible for mandatory supervision release have a protected

liberty interest in earned good-time credits. Teague v. Quarterman, 482 F.3d

769, 776-77 (5th Cir. 2007); Malchi v. Thaler, 211 F.3d 953, 957-58 (5th Cir.

2000). 

For the same reason, the district court erred in determining that the

failure to backdate Walters’s good-time credits did not violate the Ex Post Facto

Clause because such credits did not affect or increase his term of imprisonment.

The Supreme Court has found ex post facto violations with respect to

retrospective changes affecting a prisoner’s good-conduct time. See Lynce v.

Mathis, 519 U.S. 433, 445-46 (1997); Weaver v. Graham, 450 U.S. 24, 35-36

(1981). The respondent did not put on any summary judgment evidence showing

that Walters was not entitled to backdating of the award of the educational

credits, and it is not clear from the record whether Walters is entitled to

backdating. Accordingly, the district court erred in granting summary judgment

to the respondent on this claim.

JUDGMENT VACATED AND CASE REMANDED FOR FURTHER

PROCEEDINGS.