IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION 

VINCENT EDWARD WYATT, §

PETITIONER, §

§

v. § Civil Action No. 4:06-CV-089-Y

§

DOUGLAS DRETKE, DIRECTOR, §

TEXAS DEPARTMENT OF CRIMINAL §

JUSTICE, CORRECTIONAL INSTITUTIONS §

DIVISION, §

RESPONDENT. §

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

AND NOTICE AND ORDER

This cause of action was referred to the United States Magistrate Judge pursuant to the

provisions of 28 U.S.C. § 636(b), as implemented by an order of the United States District Court for

the Northern District of Texas. The Findings, Conclusions, and Recommendation of the United

States Magistrate Judge are as follows:

I. FINDINGS AND CONCLUSIONS

A. NATURE OF THE CASE

This is a petition for writ of habeas corpus by a state prisoner pursuant to 28 U.S.C. § 2254.

B. PARTIES

Petitioner Vincent Edward Wyatt, TDCJ #654084, is a state prisoner in custody of the Texas

Department of Criminal Justice, Correctional Institutions Division, in Huntsville, Texas.

Respondent Douglas Dretke is the Director of the Texas Department of Criminal Justice,

Correctional Institutions Division (TDCJ).

 

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C. PROCEDURAL HISTORY

In May 2002, Wyatt was charged by indictment with possession of cocaine in the amount

of one gram or more but less than four grams under Case No. 0840080A in the 371st District Court

of Tarrant County, Texas. (State Habeas R. at 14.) The indictment also included a habitual offender

notice, alleging that Wyatt had been finally convicted of possession of cocaine of less than twentyeight grams in 1988 and in 1992. (Id.) On March 10, 2003, pursuant to a plea agreement, the state

waived the habitual offender notice, Wyatt pled guilty to the offense, and the state trial court

sentenced him to nine years’ confinement. (Id.) Wyatt continues to serve his 9-year sentence under

Case No. 0840080A, in addition to an 18-year sentence for his 1992 conviction for possession of

cocaine under Case No. 0489171W. (Resp’t Answer, Exhibit A.) In this petition, Wyatt challenges

the Texas Board of Pardons and Paroles’s denial of a discretionary mandatory supervision release

date on his 9-year sentence under Case No. 0840080A. (Petition at 7.) He has filed a state

application for writ of habeas corpus raising the claims presented, which was denied without written

order by the Texas Court of Criminal Appeals on November 16, 2005. Ex parte Wyatt, No. 63,124-

01, at cover. This petition was filed on January 27, 2006. See Spotville v. Cain, 149 F.3d 374, 377

(5th Cir. 1998) (holding pro se habeas petition filed when petition and any attachments are delivered

to prison authorities for mailing).

D. RULE 5 STATEMENT

Dretke believes Wyatt has sufficiently exhausted his state remedies as required by 28 U.S.C.

§ 2254(b). (Resp’t Answer at 3.)

 

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Wyatt is eligible for mandatory supervision under Case No. 0489171W with a mandatory

supervision release date of August 12, 2006. (Resp’t Answer, Exhibit B.)

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E. LEGAL ANALYSIS 

Wyatt asserts that, in violation of his federal constitutional rights, the Texas Board of

Pardons and Paroles (the Board) is denying him a discretionary mandatory supervision release date

on his 9-year sentence under Case No. 0840080A based on his prior November 15, 1985, conviction

for theft, which is not an aggravated or ineligible offense as outlined in § 508.149 of the Texas

Government Code.1

 TEX. GOV’T CODE ANN. § 508.149 (Vernon 2005). Contrary to Wyatt’s

assertion, however, the record reflects that he was convicted of robbery by threats on November 15,

1985, under Case No. 0242663A in the Criminal Court Number Two of Tarrant County, Texas.

(Resp’t Answer, Exhibit C.)

A habeas corpus applicant under 28 U.S.C. § 2254 must claim violation of a federal

constitutional right to be entitled to relief. See Narvaiz v. Johnson, 134 F.3d 688, 695 (5th Cir.

1998). The Fifth Circuit has held that the Texas mandatory supervision scheme in place prior to

September 1, 1996, created a constitutional expectancy of early release to those inmates whose

calendar time combined with good time credits equal the sentence imposed. See Malchi v. Thaler,

211 F.3d 953, 957-58 (5th Cir. 2000) (citing Wolff v. McDonnell, 418 U.S. 539, 557 (1974)).

Effective September 1, 1996, however, the Texas mandatory supervision law was revised to provide

for a discretionary mandatory supervision scheme. See TEX. GOV’T CODE ANN. § 508.149(b)

(Vernon 2004). The Fifth Circuit has yet to rule on whether a federal constitutional expectancy of

early release exists under Texas’s revised statute, but the Texas Court of Criminal Appeals has held

 

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that the statute vests a liberty interest in an eligible inmate to certain procedural due process

considerations. See Ex parte Geiken, 28 S.W.3d 553, 558-60 (Tex. Crim. App. 2000). 

Under Texas law, eligibility for mandatory supervision is determined by the statute in effect

at the time the holding offense was committed. See Ex parte Hall, 995 S.W.2d 151, 152 (Tex. Crim.

App. 1999). Under § 508.149(a), applicable to Wyatt’s 2003 conviction under Case No. 0840080A,

an inmate may not be released to mandatory supervision if the inmate has been previously convicted

of a second degree felony under Penal Code § 29.02 (Robbery). Id. § 508.149(a)(11). Robbery by

threats was in 1985 and remains a second degree felony under § 29.02. See Act of May 24, 1973,

63rd Leg., R.S., ch. 399, § 1, 1973 Tex. Gen. Laws 883, 925-26 (currently TEX. PENAL CODE ANN.

§ 29.02 (Vernon 2004)). 

Thus, under the new statute, in effect when Wyatt committed the holding offense under Case

No. 0840080A, he is not, and was never, eligible for release to mandatory supervision on his 9-year

sentence. Thus, no constitutional violation has occurred and Wyatt’s claims do not present a basis

for federal habeas relief. See Madison v. Parker, 104 F.3d 765, 768-69 (5th Cir. 1997).

II. RECOMMENDATION

Wyatt’s petition for writ of habeas corpus should be DENIED.

III. NOTICE OF RIGHT TO OBJECT TO PROPOSED

FINDINGS, CONCLUSIONS AND RECOMMENDATION

 AND CONSEQUENCES OF FAILURE TO OBJECT

Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file specific

written objections in the United States District Court to the United States Magistrate Judge’s

proposed findings, conclusions, and recommendation within ten (10) days after the party has been

served with a copy of this document. The court is extending the deadline within which to file

 

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specific written objections to the United States Magistrate Judge’s proposed findings, conclusions,

and recommendation until May 25, 2006. The United States District Judge need only make a de

novo determination of those portions of the United States Magistrate Judge’s proposed findings,

conclusions, and recommendation to which specific objection is timely made. See 28 U.S.C. §

636(B)(1). Failure to file by the date stated above a specific written objection to a proposed factual

finding or legal conclusion will bar a party, except upon grounds of plain error or manifest injustice,

from attacking on appeal any such proposed factual finding or legal conclusion accepted by the

United States District Judge. See Douglass v. United Servs. Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th

Cir. 1996) (en banc op. on reh’g); Carter v. Collins, 918 F.2d 1198, 1203 (5th Cir. 1990).

IV. ORDER

Under 28 U.S.C. § 636, it is ORDERED that each party is granted until May 25, 2006, to

serve and file written objections to the United States Magistrate Judge’s proposed findings,

conclusions, and recommendation. It is further ORDERED that if objections are filed and the

opposing party chooses to file a response, a response shall be filed within seven (7) days of the filing

date of the objections. 

It is further ORDERED that the above-styled and numbered action, previously referred to

the United States Magistrate Judge for findings, conclusions, and recommendation, be and hereby

is returned to the docket of the United States District Judge. 

SIGNED May 4, 2006.

 /s/ Charles Bleil 

CHARLES BLEIL

UNITED STATES MAGISTRATE JUDGE

 

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