The previous named respondent in this action was Douglas Dretke. On June 1, 2006, 1

Nathaniel Quarterman succeeded Dretke as Director, Texas Department of Criminal Justice,

Correctional Institutions Division. Under Federal Rule of Civil Procedure 25(d)(1), he “is

automatically substituted as a party.”

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

ARTHUR W. CARSON, §

TDCJ-CID NO. 517349, §

Petitioner, §

§

v. § CIVIL ACTION NO. 3:06-CV-0252-B (BH)

§ ECF

NATHANIEL QUARTERMAN, Director, § Referred to U.S. Magistrate Judge 1

Texas Department of Criminal Justice, §

Correctional Institutions Division, §

Respondent. §

RESPONDENT QUARTERMAN’S ANSWER WITH BRIEF IN SUPPORT

Petitioner Arthur W. Carson (“Carson”) challenges the constitutionality of the application

of good-time and work-time credit to the calculation of his sentence by means of a petition for writ

of habeas corpus under 28 U.S.C. §§ 2241, 2254. Carson was convicted and sentenced in Dallas

County, Texas; therefore, jurisdiction over the parties and the subject matter properly lies with this

Court. Wadsworth v. Johnson, 235 F.3d 959, 960-961 (5th Cir. 2000) (holding that jurisdiction is

proper in either the district where the person is in custody or the district in which the state court

convicted and sentenced him) (quoting 28 U.S.C. § 2241(d)). Respondent, Nathaniel Quarterman,

Director (“the Director”), Texas Department of Criminal Justice, Correctional Institutions Division

(“TDCJ-CID”) denies every allegation of fact made by Carson except those supported by the record

and those specifically admitted herein. Forthe reasons explained below, Carson fails to demonstrate

that he is entitled to federal habeas relief; therefore, the instant petition should be dismissed with

prejudice.

 

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 A time-credit calculation letter and business records affidavit from the TDCJ-CID 2

Classification and Records Office is attached as “Exhibit A.”

2

STATEMENT OF THE CASE

The Director has lawful custody of Carson pursuant to a judgment and sentence of the

Criminal District Court Number 2 of Dallas County, Texas in cause number F88-84596-LI, styled,

The State of Texas v. Arthur Wayne Carson. Ex parte Carson, No. 8,774-09, at 12-13 (Judgment).

Carson pled not guilty to the second-degree felony offense of attempted murder with a deadly

weapon and was tried by a jury. Id. at 12-14. The jury found Carson guilty and, on July 6, 1989,

sentenced him to twenty years imprisonment. Id.

An appellate history of this conviction is not necessary for the resolution of the instant case

because Carson is not challenging his holding conviction; rather, he challenges the constitutionality

of the application of good-time and work-time credits to the calculation of his sentence. Fed. Writ

Pet. at 7-7B, Brief at 1-8.

On October 13, 2005, Carson filed a time-credit-dispute resolution form with the TDCJ-CID

Classification and Records Office. Exhibit A. As of March 19, 2006, Carson’s time-credit dispute 2

was still pending. Id. On October 20, 2005, Carson filed an application for state writ of habeas

corpus raising the instant claims and, on January 25, 2006, the Texas Court of Criminal Appeals

denied Carson’s application without written order. Ex parte Carson, No. 8,774-20, at cover, 2, 7-8,

13-21. On February 1, 2006, Carson filed this federal petition. Brief at 8.

STATE RECORDS 

Copies of Carson’s state court records were by this Court on April 17, 2006. A timecalculation letter is attached as Exhibit A, a computer-generated printout from TDCJ-CID of

Carson’s time credits is attached as Exhibit B, and a computer-generated printout of Carson’s parole

minutes from TDCJ-CID is attached as Exhibit C.

 

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 The undersigned will refer to Carson’s “Brief in Support of Application for Writ of Habeas

3

Corpus” as “Brief.”

See Spotville v. Cain, 149 F.3d 374, 378 (5th Cir. 1998) (for purposes of determining the 4

applicability of the AEDPA, a federal petition is filed on the date it is placed in the prison mail

system). Thus, the instant petition could not have been “filed” sooner than February 1, 2006, the

date Carson signed it. Brief, at 8. 

3

PETITIONER’S ALLEGATIONS

The Director understands Carson to raise the following grounds relief:

1. He is being illegally detained based on false representation and misuse or non-use of

accrued good-time and work-time credit in violation of his right to due process and

equal protection; and

2. The Texas Court of Criminal Appeals paper hearing was unfair and without

jurisdiction.

Fed. Writ Pet. at 7-7B; Brief at 1-8.3

EXHAUSTION

Carson has sufficiently exhausted his state court remedies as required by 28 U.S.C. §§

2254(b), (c) regarding the claims stated supra because he raised the identical claims in his

application for state writ of habeas corpus which the Texas Court of Criminal Appeals denied

without written order. Ex parte Carson, Application No. 8,774-20, at cover, 7-8, 13-22. 

RESPONDENT QUARTERMAN’S ANSWER WITH BRIEF IN SUPPORT

I. Standard of Review 

Carson filed this federal writ petition on February 1, 2006; therefore, his petition is subject 4

to review under the amendmentsto the federal habeas corpus statutes embodied in the Anti-terrorism

and Effective Death Penalty Act of 1996 (“AEDPA”). Brief, at 9; see 28 U.S.C.A. § 2254; Lindh

v. Murphy, 521 U.S. 320, 336 (1997) (Holding AEDPA only applies to those noncapital habeas

corpus cases filed after its effective date of April 24, 1996). Under the amended § 2254(d), Carson

may not obtain federal habeas corpus relief

 

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4

with respect to any claim that was adjudicated on the merits in State

court proceedings unless the adjudication of the claim–

(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.

28 U.S.C. § 2254(d) (2006).

A decision is contrary to, or an unreasonable application of, clearly established federal law

“if the state court arrives at a conclusion opposite to that reached by [the Supreme Court] on a

question of law or if the state court decides a case differently than [the] Court on a set of materially

indistinguishable facts.” Williams v. Taylor, 529 U.S. 362, 413 (2000), (quoted in Hill v. Johnson,

210 F.3d 481, 485 (5th Cir. 2000)).

Absent a direct conflict with Supreme Court authority, habeas relief is available only if the

state-court decision is factually or legally unreasonable. Montoya v. Johnson, 226 F.3d 399, 404 (5th

Cir. 2000). However, an unreasonable application offederal law is not the equivalent of an incorrect

application. Williams, 529 U.S. at 412. A federal writ may not issue simply because the state court

incorrectly applied federal law; the application must also be unreasonable. Id. at 411. An

“unreasonable application” occurs “if the state court identifies the correct governing legal principle

from this Court’s decisions but unreasonably applies that principle to the facts of the prisoner’s

case.” Id.

A state court’s determination of a factual issue is afforded a presumption of correctness, and

the petitioner “shall have the burden of rebutting the presumption by clear and convincing evidence.”

28 U.S.C. § 2254(e)(1); Jackson v. Johnson, 150 F.3d 520, 524 (5th Cir. 1998). 

Carson raised these claims in his state writ application, and the Court of Criminal Appeals

denied relief. Ex parte Carson, No. 8,774-20, at cover, 7-8, 11-21. This was an adjudication on the

 

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5

merits. Singleton v. Johnson, 178 F. 3d 381, 384 (5th Cir. 1999); Ex parte Torres, 943 S.W.2d 469,

472 (Tex. Crim. App. 1997) (Holding a “denial” signifies an adjudication on the merits while a

“dismissal” means the claim was declined on grounds other than itsmerits). Therefore, Carson must

demonstrate this decision was either and unreasonable application of clearly established federal law

or an unreasonable determination of the facts in light of the evidence. 28 U.S.C. § 2254(d). Carson

has failed to make such a showing.

II. Carson’s claim that he has been denied the value of his good-time and work-time credit

in violation of his right to due process and equal protection is without merit and must

be denied.

The essence of habeas corpus is an attack by a person, in custody, upon the legality of that

custody, and the traditional function is to secure release from illegal confinement. Preiser v.

Rodriguez, 411 U.S. 475, 484 (1973); see Pierre v. United States, 525 F.2d 933, 935-36 (5th Cir.

1976) (The “sole function [of a writ of habeas corpus] is to grant relief from unlawful imprisonment

or custody and it cannot be used properly for any other purpose.”). This simply means that a state

prisoner seeking federal court review of his claim pursuant to 28 U.S.C. § 2254 must assert a

violation of a federal constitutional right. Lawrence v. Lensing, 42 F.3d 255, 258 (5th Cir. 1994);

Gray v. Lynn, 6 F.3d 265, 268 (5th Cir. 1993); Lowery v. Collins, 988 F.2d 1364, 1367 (5th Cir.

1993). Carson has failed to establish claims of constitutional dimension.

Carson’s claims are disagreements with Texas law, and federal habeas corpus relief is

available only for the vindication of rights existing under federal law; not rights existing solely under

rules of state procedure. Manning v. Blackburn, 786 F.2d 710, 711 (5th Cir. 1986). A federal habeas

court does not review alleged violations of state law, but instead may consider only alleged

violations of federal law. 28 U.S.C. § 2254 (2002); Evans v. McCotter, 790 F.2d 1232, 1238 n.6 (5th

Cir. 1986). The law of this circuit provides that federal courts “do not sit as a ‘super’ state supreme

court in a habeas corpus proceeding to review errors under state law.” Cook v. Morrill, 783 F.2d

593, 596 (5th Cir. 1986) (citations omitted); see Dillard v. Blackburn, 780 F.2d 509, 513 (5th Cir.

1986) (“federal courts do not sit as courts of appeal and error for state court convictions”). A claim

 

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arising about the functions of the parole board is solely a question of state criminal procedure and

is not cognizable on federal habeas corpus review. As such, no federal constitutional violation is

raised. See Carson v. Estelle, 717 F.2d 171, 179 (5th Cir. 1983) (Federal courts do not sit to review

questions of state criminal procedure). Finally, it is not this court’s responsibility to interpret the

parole laws of the State of Texas.

Carson claims that TDCJ-CID is guilty of “false crediting of goodtime, (sic) or work time

credits” and that those credits “should be inherently a part of [Carson’s] sentence since he worked

and was industrious;” however, there is no merit to his claim. Brief, at 5. Further, Carson contends

that “good work time Credits were fraudulently incorporated to [his] sentence to deceptively

manipulate, Physical and Mental exertion, excluding incentive(s).” Id. at 6. Carson’s allegations

are simply false. Carson’s accrued good-time and work-time credits are applicable to his eligibility

for parole and are an important factor in the Board of Pardons and Paroles’s decision whether or not

to release him to parole. Carson is eligible for parole at the Board’s discretion, and will continue to

be reviewed for parole at the appropriate intervals. Exhibit A; see also Exhibit C (copies of Parole

Minutes Screen).

To the extent Carson’s claims are interpreted to challenge the Board’s continued denial of

parole as a violation of due process,Carson has not stated a claim that will invoke actual due process

concerns. While procedures relative to parole may affect the duration of confinement, it is well

settled that the Texas parole statutes do not confer a liberty interest. “It follows that because [the

petitioner] has no liberty interest in obtaining parole in Texas, he cannot complain of the

constitutionality of procedural devices attendant to parole decisions.” Orellana v. Kyle, 65 F.3d 29,

32 (5th Cir. 1995). Therefore, the Board’s decision to deny Carson parole raises no due process

concerns. Accordingly, by challenging the Board’s vote to deny him parole, Carson has not stated

a claim which is cognizable under federal habeas review. Sandin v. Conner, 515 U.S. 472, 483-484

(1995); Madison, 104 F.3d at 767. Therefore, his claims should be dismissed.

 

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Carson’s claims that the “unequal application of time credits soley (sic) to those with a

conviction with an affirmative finding . . . is contrary to Petitioner’s Property Interest rights” and

that good-time credit has been applied in a “discriminatory” manner. Fed. Writ Pet. at 7A; Brief at

1. But Carson cannot demonstrate that Texas Government Code § 508.149 and Texas Code of

Criminal Procedure article 42.12 § 3(g), as applied to him somehow inflict a greater punishment on

him than on other similarly situated inmates. See California Dep’t of Corr. v. Morales, 514 U.S.

499, 509 (1995) (No Ex Post Facto violation where statutory amendment to parole statute merely

“creates only the most speculative and attenuated possibility of producing the prohibited effect of

increasing the measure of punishment for covered crimes, and such conjectural effects are

insufficient under any threshold we might establish under the Ex Post Facto Clause”); Dobbert v.

Florida, 432 U.S. 282, 293-94 (1977) (No Ex Post Facto violation where “the new statute simply

altered the methods employed in determining whether the death penalty was to be imposed; there

was no change in the quantum of punishment attached to the crime.”). Therefore, Carson’s claims

of due process violations concerning the Texas mandatory release statute are meritless. 

Finally, Carson’s claims must fail because he is not eligible for release on mandatory

supervision in the instant attempted murder with a deadly weapon conviction. TEX. CODE CRIM.

PROC. ART. 42.18 § 8(c) (Vernon 1988). According to the mandatory supervision statute in effect

when Carson committed that offense “[a] prisoner may not be released to mandatory supervision if

the prisoner is serving a sentence for an offense and the judgment for the offense contains an

affirmative finding under Subdivision (2), Subsection (a), Section 3g, Article 42.12, of this code

(deadly weapon finding).” Id. To date this law has remained unchanged, and is now codified in the

Texas Government Code § 508.149 (a)(1) (West 2006). Under this statute, an inmate serving a

sentence which included a deadlyweapon finding is ineligible for mandatory release. Id. As stated,

supra, Carson is currently serving a sentence for second-degree attempted murder with a deadly

weapon which he committed on July 7, 1988. Ex parte Carson, No. 8,774-09, at12-13. (Judgment).

Therefore, Carson’s claims must fail because he is not eligible for release on mandatory supervision.

 

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TEX. CODE CRIM. PROC. ART. 42.18 §8(c). 

Carson has not demonstrated that the decision of the Court of Criminal Appeals was an

unreasonable application of clearly established federal law or an unreasonable determination of the

facts in light of the evidence presented, and this court should deny relief. 28 U.S.C. § 2254(d).

III. Carson’s claim that the state habeas court improperly considered and denied his state

writ application fails to state a federal constitutional violation. 

Finally, Carson argues that the “state court’s paper hearing was unfair and without

jurisdiction.” Fed. Writ Pet. at 7. Carson claims that the court’s “paper hearing was inappropriately

conducted with the use of hearsay documents,” and the court was “without Jurisdiction.” Id. at 7,

7B. This claim is not cognizable on federal habeas review. The Fifth Circuit has held: “infirmities

in state habeas corpus proceedings do not state a claim for federal habeas corpus relief.” Vail v.

Procunier, 747 F.2d 277 (5th Cir. 1984); see Trevino v. Johnson, 168 F.3d 173, 180 (5th Cir.1999);

see also Hallmark v. Johnson, 118 F.3d 1073, 1080 (5th Cir. 1997); see Nichols v. Scott, 69 F.3d

1255, 1275 (5th Cir.1995) (“An attack on a state habeas proceeding does not entitle the petitioner

to habeas relief in respect to his conviction, as it is an attack on a proceeding collateral to the

detention and not the detention itself.”) (internal quotation marks omitted); Duff-Smith v. Collins,

973 F.2d 1175, 1182 (5th Cir.1992) (same); Millard v. Lynaugh, 810 F.2d 1403, 1410 (5th Cir.1987)

(same). Even if Carson states a meritorious claim, which he has not, this court cannot provide the

relief that he seeks. Therefore, his claim should be dismissed. 

CONCLUSION

Based on the foregoing, the Director requests that Carson’s federal petition be denied and

dismissed with prejudice. 

 Respectfully submitted,

 GREG ABBOTT

Attorney General of Texas

KENT C. SULLIVAN

First Assistant Attorney General

 

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9

DON CLEMMER

Deputy Attorney General

for Criminal Justice

GENA BUNN 

Assistant Attorney General

Chief, Postconviction Litigation Division

s/ Sallie Christian-Carnal 

SALLIE CHRISTIAN-CARNAL

Assistant Attorney General

*Attorney in Charge State Bar No. 24031568

P. O. Box 12548, Capitol Station

Austin, Texas 78711

(512) 936-1400

(512) 936-1280 (FAX)

Sallie.Christian-Carnal@oag.state.tx.us

ATTORNEYS FOR RESPONDENT

CERTIFICATE OF INTERESTED PARTIES

Under Local Rule 3.1(f) of the Northern District of Texas other than the Petitioner, Arthur

W. Carson, and the Respondent, Nathaniel Quarterman, Director, Texas Department of Criminal

Justice, Correctional Institutions Division, counsel for theRespondent is unaware of any person with

a financial interest in the outcome of this case. 

s/ Sallie Christian-Carnal 

SALLIE CHRISTIAN-CARNAL

Assistant Attorney General

 

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CERTIFICATE OF SERVICE

I, Sallie Christian-Carnal, Assistant Attorney General of Texas, do hereby certify that a true

and correct copy of the above and foregoing Respondent Quarterman’s Answer with Brief in Support

has been served by placing same in the United States Mail, postage prepaid, on this the 14th day of

June, 2006, addressed to:

Arthur W. Carson

TDCJ-ID No. 517349

Coffield Unit

Route 1 Box 150

Tennessee Colony, Texas 75884

/s Sallie Christian-Carnal 

SALLIE CHRISTIAN-CARNAL

Assistant Attorney General

 

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