IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

CHARLES WESLEY WHEAT §

§

Petitioner, §

§

VS. §

§ NO. 3-05-CV-1315-H 

DOUGLAS DRETKE, Director §

Texas Department of Criminal Justice, §

Correctional Institutions Division §

§

Respondent. §

FINDINGS AND RECOMMENDATION OF THE

UNITED STATES MAGISTRATE JUDGE

Petitioner Charles Wesley Wheat, 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 summarily denied.

I.

Petitioner was convicted of aggravated robbery and sentenced to life imprisonment. His

conviction and sentence were affirmed on direct appeal. Wheat v. State, No. 05-81-00838-CR (Tex.

App.--Dallas, Sept. 16, 1982, no pet.). Petitioner also filed multiple applications for state postconviction relief. Most recently, petitioner challenged a decision by the Texas parole board to deny

him release to mandatory supervision. His writ was denied without written order. Ex parte Wheat,

No. 15,785-05 (Tex. Crim. App. Mar. 9, 2005). Petitioner then filed this action in federal court.

II.

In three grounds for relief, petitioner contends that the decision to deny him release to

mandatory supervision violates due process, the separation of powers doctrine, and the double

jeopardy clause of the United States Constitution. The law governing mandatory supervision in

 

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 1

 It appears petitioner first learned that he would not be released to mandatory supervision on November 9,

1999--more than three years before he sought state or federal post-conviction relief. (See Spears Quest. #4). However,

the court need not determine whether this action is barred by the AEDPA statute of limitations as petitioner is not entitled

to relief in any event. See Davis v. Dretke, 2003 WL 23174750 at *1 n.1 (N.D. Tex. Nov. 25, 2003), rec. adopted, 2003

WL 23096493 (N.D. Tex. Dec. 22, 2003).

effect when the instant offense was committed provided, in pertinent part:

A prisoner who is not on parole, except a person under sentence of

death, shall be released to mandatory supervision by order of the

[Parole] Board when the calendar time he has served plus any

accrued good conduct time equals the maximum term to which he

was sentenced. 

TEX. CODE CRIM. PROC. ANN. art. 42.18, § 15(c), repealed Sept. 1, 1985. The Fifth Circuit has

interpreted this statute to create an expectancy of early release to those inmates whose calendar time

combined with good time credits equal the sentence imposed. Malchi v. Thaler, 211 F.3d 953, 957-

58 (5th Cir. 2000), citing Wolff v. McDonnell, 418 U.S. 539, 557, 94 S.Ct. 2963, 2975, 41 L.Ed.2d

935 (1974). However, a life sentence is not capable of calculation under the mandatory supervision

statute. See Rosario v. Dretke, 2005 WL 877920 at *2 (N.D. Tex. Apr. 14, 2005), rec. adopted,

2005 WL 1018045 (N.D. Tex. Apr. 28, 2005) ("It is not logistically possible to calculate the

statutory formula because calendar time plus good time earned can never equal the unknown length

of the life sentence."); Randall v. Cockrell, 2001 WL 1597829 at *2 (N.D. Tex. Dec. 11, 2001)

(same); Elliott v. Johnson, 2001 WL 123984 at *2-3 (N.D. Tex. Jan. 16, 2001), rec. adopted, 2001

WL 180142 (N.D. Tex. Feb. 16, 2001) (same). Consequently, these grounds for relief are without

merit and should be overruled.1

RECOMMENDATION

It plainly appears from the petition and any attached exhibits that petitioner is not entitled

to relief. Accordingly, his application for writ of habeas corpus should be summarily denied. See

RULES GOVERNING SECTION 2254 CASES, Rule 4.

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

 

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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: July 15, 2005.

 

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