IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

MARK ANTHONY JONES §

§

Petitioner, §

§

VS. §

§ NO. 3-05-CV-0036-K

DOUGLAS DRETKE, Director §

Texas Department of Criminal Justice, §

Correctional Institutions Division §

§

Respondent. §

FINDINGS AND RECOMMENDATION OF THE

UNITED STATES MAGISTRATE JUDGE

Petitioner Mark Anthony Jones, appearing pro se, has filed an application for writ of habeas

corpus pursuant to 28 U.S.C. § 2254. For the reasons stated herein, the application should be denied.

I.

On September 17, 1993, petitioner was released to mandatory supervision after serving part

of a 25-year prison sentence on a Dallas County, Texas conviction for unauthorized use of a motor

vehicle ("UMV"). While out on release, petitioner was charged with theft in Dallas County and

burglary of a building in Collin County, Texas. He was convicted of both charges and returned to

TDCJ-ID custody on June 16, 1997 with credit allowed from May 24, 1997. However, a revocation

hearing was not held until March 30, 2004. At that time, petitioner's mandatory supervision was

revoked based on his new convictions. Petitioner was denied credit on his UMV sentence for the

time he was out on release and forfeited all good time credits earned prior to his release in 1993.

Petitioner challenged this action in an application for state post-conviction relief. The application

was denied without written order. Ex parte Jones, No. 60,014-01 (Tex. Crim. App. Nov. 3, 2004).

 

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 1 The statute provides, in relevant part, that:

(a) If a subsequent application for writ of habeas corpus is filed after final

disposition of an initial application challenging the same conviction, a court may

not consider the merits of or grant relief based on the subsequent application unless

the application contains sufficient specific facts establishing that:

(1) the current claims and issues have not been and could not have

been presented previously in an original application or in a previously considered

application filed under this article because the factual or legal basis for the claim

was unavailable on the date the applicant filed the previous application; or

(2) by a preponderance of the evidence, but for a violation of the

United States Constitution no rational juror could have found the applicant guilty

beyond a reasonable doubt . . .

Petitioner then filed this action in federal court.

II.

Petitioner raises three broad arguments in four grounds for relief. Succinctly stated,

petitioner contends that: (1) the seven-year delay in holding a parole revocation hearing violated

his right to due process; (2) he is entitled to credit on his sentence from June 16, 1997, the date he

was readmitted to TDCJ-ID custody, until March 30, 2004, the date his mandatory supervision was

revoked; and (3) he is entitled to good time credits earned from 1997 to the present.

A.

As a preliminary matter, respondent argues that petitioner's due process claim is procedurally

barred from federal habeas review. A federal court may not consider the merits of a habeas claim

if a state court has denied relief due to a procedural default. Sawyer v. Whitley, 505 U.S. 333, 338,

112 S.Ct. 2514, 2518, 120 L.Ed.2d 269 (1992). Only procedural rules that are firmly established

and regularly followed by state courts can prevent habeas review of federal constitutional rights.

Hathorn v. Lovorn, 457 U.S. 255, 262-63, 102 S.Ct. 2421, 2426, 72 L. Ed.2d 824 (1982). Article

11.07 of the Texas Code of Criminal Procedure prohibits a second habeas petition if the petitioner

urges grounds therein that could have been, but were not, raised in his first habeas petition. See TEX.

CODE CRIM. PROC. ANN. art. 11.07, § 4 (Vernon Supp. 2005).1

 This statute constitutes an adequate

 

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TEX. CODE CRIM. PROC. ANN. art. 11.07, § 4(a). 

 2 In an earlier state post-conviction proceeding, petitioner argued that the failure to conduct a parole revocation

hearing within 120 days of his arrest violated the plea agreement with the state in his burglary case. However, that

proceeding challenged the validity of petitioner's burglary conviction, not his parole revocation. See Ex parte Jones, No.

54,845-01 (Tex. Crim. App. Feb. 19, 2003). "Where petitioner advances in federal court an argument based on a legal

theory distinct from that relied upon in the state court, he fails to satisfy the exhaustion requirement." Wilder v. Cockrell,

274 F.3d 255, 259 (5th Cir. 2001), quoting Vela v. Estelle, 708 F.2d 954, 958 n.5 (5th Cir. 1983), cert. denied, 104 S.Ct.

736 (1984). See also Anderson v. Harless, 459 U.S. 4, 6, 103 S.Ct. 276, 277, 74 L.Ed.2d 3 (1982) ("It is not enough that

all the facts necessary to support the federal claim were before the state courts or that a somewhat similar state-law claim

was made."). The court therefore concludes that petitioner's due process claim was not "fairly presented" to the state

court for review. 

state procedural bar for purposes of federal habeas review. Fearance v. Scott, 56 F.3d 633, 642 (5th

Cir.), cert. denied, 115 S.Ct. 2603 (1995). The procedural bar doctrine also applies to unexhausted

claims if the state court would likely dismiss a successive habeas petition under article 11.07. See

Coleman v. Thompson, 501 U.S. 722, 735 n.1, 111 S.Ct. 2546, 2557 n.1, 115 L.Ed.2d 640 (1991)

(procedural default occurs when prisoner fails to exhaust available state remedies and "the court to

which the petitioner would be required to present his claims in order to meet the exhaustion

requirement would now find the claims procedurally barred").

In his state writ, petitioner challenged the forfeiture of good time credits earned prior to his

release and sought credit on his 25-year UMV sentence for time spent in custody after his arrest on

new charges. However, petitioner never complained about the seven-year delay in holding a parole

revocation hearing. (See St. Hab. Tr. at 2-11).2

 No explanation is offered to excuse this procedural

default. The court finds that a Texas court, presented with this claim in a successive habeas petition,

likely would find it barred under article 11.07. Consequently, federal habeas relief is not proper.

See Coleman, 111 S.Ct. at 2557 n.1; Nobles v. Johnson, 127 F.3d 409, 422-23 (5th Cir. 1997), cert.

denied, 118 S.Ct. 1845 (1998).

B.

In two related grounds, petitioner seeks: (1) credit on his sentence from June 16, 1997, the

 

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 3

 To the extent petitioner seeks credit on his sentence for time spent while out on parole and good time credits

earned prior to his release, such a claim is without merit. The relevant statute in effect at the time the underlying offense

was committed provides, in relevant part, that "[w]hen the Governor revokes a person's parole . . . [he] may be required

to serve the portion remaining of the sentence on which he was released, such portion remaining to be calculated without

credit for the time from the date of his release to the date of revocation." TEX. CODE CRIM. PROC. ANN. art. 42.12, §

22 (Vernon 1979), now TEX. GOV’T CODE ANN. § 508.156(e) (Vernon 1998) (emphasis added). In addition, state law

allows for the forfeiture of previously earned good time credits "[u]pon revocation of parole or mandatory supervision."

See TEX.REV.CIV.STAT.ANN. art. 6181-1 (Vernon 1977), now TEX.GOV'T CODE ANN. § 498.004(b). See also Ex parte

Henderson, 645 S.W.2d 469, 472 (Tex. Crim. App. 1983) (good time credit is not a right, but a privilege which may be

forfeited).

date he was readmitted to TDCJ-ID custody, until March 30, 2004, the date his mandatory

supervision was revoked; and (2) good time credits from 1997 to the present. The court initially

observes that petitioner does not appear to challenge the denial of sentence credits from September

17, 1993, the date he was released to mandatory supervision, to June 16, 1997, the date he returned

to TDCJ-ID custody. Nor does he seek reinstatement of good time credits earned prior to his release

in 1993.3 Rather, petitioner appears to limit his sentence credit claim to flat time and good time

credits earned after he was readmitted to TDCJ-ID custody in June 1997. With respect to that claim,

the court notes that petitioner has been given all the sentence credits he seeks. In a letter dated April

20, 2005, Paul Wilder, Administrative Assistant to the TDCJ State Classification Committee,

explains that at the time of his readmission to TDCJ-ID on June 16, 1997, "the offender was charged

as out of custody for a period of 3-years 4-months 18-days for an unsatisfactory term of parole."

(Resp. Ans., Exh. A). That "out-of-custody" period equates to the time between September 17,

1993, the date petitioner was released to mandatory supervision, and February 15, 1997, the date he

was arrested for theft and booked into the Dallas County Jail. Thereafter, an adjustment was made

to change the jail date to May 24, 1997. (Id.). TDCJ records now show that petitioner was "out-ofcustody" for a total of 1,334 days. (Id., Exh. D). In addition, petitioner has been receiving good

time credits since May 24, 1997. (Id., Exh. A). It therefore appears that petitioner has been given

all the flat time and good time credits on his 25-year UMV sentence to which he is entitled.

RECOMMENDATION

 

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Petitioner's application for writ of habeas corpus should be denied.

A copy of this report and recommendation shall be served on all parties in the manner

provided by law. Any party may file written objections to the recommendation within 10 days after

being served with a copy. See 28 U.S.C. § 636(b)(1); FED. R. CIV. P. 72(b). The failure to file

written objections will bar the aggrieved party from appealing the factual findings and legal

conclusions of the magistrate judge that are accepted or adopted by the district court, except upon

grounds of plain error. See Douglass v. United Services Automobile Ass'n, 79 F.3d 1415, 1417 (5th

Cir. 1996).

DATED: May 23, 2005.

 

 

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