IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

ARTHUR W. CARSON, ID # 517349, )

Petitioner, )

vs. ) No. 3:06-CV-0252-B (BH)

 ) ECF

NATHANIEL QUARTERMAN, Director, ) Referred to U.S. Magistrate Judge

Texas Department of Criminal )

Justice, Correctional Institutions Division, )

Respondent. )

FINDINGS, CONCLUSIONS, AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Pursuant to the provisions of 28 U.S.C. § 636(b) and an Order of the Court in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The

findings, conclusions, and recommendation of the Magistrate Judge follow:

I. BACKGROUND

Petitioner, an inmate currently incarcerated in the Texas Department of Criminal Justice -

Correctional Institutions Division (TDCJ-CID), filed the instant petition for writ habeas corpus

pursuant to 28 U.S.C. § 2254 to challenge the constitutionality of the application of good- and worktime credits to his twenty-year sentence imposed for his conviction for attempted murder in Cause

No. F88-8496-LI. Respondent is Respondent is Nathaniel Quarterman, Director of TDCJ-CID. 

On October 20, 2005, petitioner filed a state application for writ of habeas corpus wherein

he challenged the constitutionality of the application of credits to his sentence. On January 25,

2006, the Texas Court of Criminal Appeals denied that application without written order.

In February 2006, petitioner filed the instant federal habeas action pursuant to 28 U.S.C. §

2254. In two grounds for relief, he claims that (1) he is being illegally detained on false representation and misuse or non-use of accrued good- and work-time credits in violation of his rights to due

 

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 In a contemporaneous order, the Court has denied the request for leave to conduct discovery. 

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process and equal protection, and (2) the “paper hearing” conducted in state court was unfair and

without jurisdiction. 

On June 14, 2006, respondent filed his answer to the petition. He concedes that petitioner

has sufficiently exhausted his state remedies with respect to the claims raised in the instant petition

because petitioner raised the same claims in his state application for writ of habeas corpus. He

argues that petitioner’s first claim lacks merit because petitioner (1) merely disagrees with Texas law;

(2) has no protected liberty interest in release on parole, although his accrued good- and work-time

credits are applicable to his eligibility for parole and factor into the discretionary decision whether

to release him to parole; and (3) is ineligible for release on mandatory supervision. Respondent

argues that petitioner’s second claim is not cognizable in a federal habeas action. 

On June 26, 2006, the Court received petitioner’s traverse to that answer in which petitioner

requests an evidentiary hearing, and argues among other things that respondent has mischaracterized

his claims. On that same date, the Court received a motion for leave of Court to conduct discovery.1

On September 1, 2006, the Court received a motion for summary judgment from petitioner. 

II. REQUEST TO TERMINATE ASSIGNMENT

Petitioner has filed a “Request to Terminate Assignment of the Magistrate Judge - Irma C.

Ramirez.” Although petitioner claims that the undersigned Magistrate Judge “has prejudiced [his]

ability to obtain a fair and effective or expeditious Resolution of His claim(s)”, he provides no

support for such claim. He identifies no act or omission that has prejudiced him, nor any

 

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particularized prejudice. He merely makes the foregoing general statement of prejudice and suggests

that he has not consented to a magistrate judge presiding over his case. 

Contrary to petitioner’s allegations, the Magistrate Judge does not preside over this case by

consent of the parties – the Court has referred this habeas case to her pursuant to 28 U.S.C. §

636(b) for handling preliminary matters and for issuing findings, conclusions, and recommendation

on the habeas petition. To the extent that petitioner’s request can be construed as a request for the

undersigned Magistrate Judge to recuse herself based on bias or prejudice, it is DENIED. To the

extent that the motion is directed to the District Court, it should deny the request to terminate the

assignment of the undersigned Magistrate Judge.

III. APPLICABLE LAW

Congress enacted the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA),

Pub. L. 104-132, 110 Stat. 1217, on April 24, 1996. Title I of the Act applies to all federal petitions

for habeas corpus filed on or after its effective date. Lindh v. Murphy, 521 U.S. 320, 326 (1997).

Because petitioner filed the instant petition after its effective date, the Act applies to his petition.

Title I of AEDPA substantially changed the way federal courts handle habeas corpus actions.

Under 28 U.S.C. § 2254(d), as amended by AEDPA, a state prisoner may not obtain relief 

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.

 

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“In the context of federal habeas proceedings, a resolution (or adjudication) on the merits is a term

of art that refers to whether a court’s disposition of the case was substantive, as opposed to procedural.” Miller v. Johnson, 200 F.3d 274, 281 (5th Cir. 2000).

The denial of petitioner’s state writ constitutes an adjudication on the merits of the claims

raised therein. Ex parte Thomas, 953 S.W.2d 286, 288-89 (Tex. Crim. App. 1997) (holding that a

denial, rather than a dismissal, signifies an adjudication on the merits). The AEDPA standards

enumerated in 28 U.S.C. § 2254(d) thus apply to this action. 

Section 2254(d)(1) concerns pure questions of law and mixed questions of law and fact.

Martin v. Cain, 246 F.3d 471, 475 (5th Cir. 2001). A decision is contrary to clearly established federal law, within the meaning of § 2254(d)(1), “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 has on a set of materially indistinguishable facts.” Williams v. Taylor,

529 U.S. 362, 412-13 (2000). 

With respect to the “unreasonable application” standard, Williams instructs that a writ must

issue “if the state court identifies the correct governing legal principle from [the] Court’s decisions

but unreasonably applies that principle to the facts of the prisoner’s case.” Id. at 413; accord Penry

v. Johnson, 532 U.S. 782, 792 (2001). Likewise under Williams, a state court unreasonably applies

Supreme Court precedent if it “unreasonably extends a legal principle from [Supreme Court] precedent to a new context where it should not apply or unreasonably refuses to extend that principle to

a new context where it should apply.” 529 U.S. at 407. “[A] federal habeas court making the ‘unreasonable application’ inquiry should ask whether the state court’s application of clearly established

federal law was objectively unreasonable.” Id. at 409; accord Penry, 532 U.S. at 793.

 

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 When petitioner was sentenced in July 1989, Texas provided for the accrual of “good conduct time, in an amount

determined by the director which shall not exceed 15 days for each 30 days actually served, for diligent participation in

an industrial program or other work program or for participation in an agricultural, educational, or vocational program

provided to inmates by the department.” See Tex. Rev. Civ. Stat. Ann. art. 6181-1, § 3(d) (Vernon 1988). Section 4

of Article 6181-1 further provided: “Good conduct time applies only to eligibility for parole or mandatory supervision

as provided in Section 8, Article 42.18, Code of Criminal Procedure, and shall not otherwise affect the inmate’s term.

Good conduct time is a privilege and not a right.” As recognized by Article 6181-1, Texas did not differentiate between

good conduct and work credits at that time. Furthermore, as often recognized by this Court, “[u]nder Texas law worktime credits are treated as good-time credits.” See, e.g., LaFoe v. Dretke, No. 3:03-CV-1722-M, 2004 WL 287734, at *4

n.10 (N.D. Tex. Feb. 5, 2004) (findings, conclusions, and recommendation of Magistrate Judge), accepted by unpub. order

(N.D. Tex. Mar. 9, 2004).

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 Section 2254(d)(2) concerns questions of fact. Moore v. Johnson, 225 F.3d 495, 501 (5th Cir.

2000). Under § 2254(d)(2), federal courts “give deference to the state court’s findings unless they

were ‘based on an unreasonable determination of the facts in light of the evidence presented in the

state court proceeding.’” Chambers v. Johnson, 218 F.3d 360, 363 (5th Cir. 2000). The resolution

of factual issues by the state court is presumptively correct and will not be disturbed unless the state

prisoner rebuts the presumption by clear and convincing evidence. 28 U.S.C. § 2254(e)(1). 

With these AEDPA standards in mind, the Court proceeds to address the merits of petitioner’s claims. 

IV. CLAIM 1

Petitioner asserts a number of arguments in his first claim. He alleges that he is being illegally

detained on false or fraudulent representation and misuse or non-use of accrued good- and worktime credits in violation of his rights to due process and equal protection. He claims that although

he has earned work- and good-time credits,2

 they have not been applied so as reduce his sentence,

and that there has been a discriminatory application of his time credits. He specifically calls into

question the constitutionality of Tex. Gov’t Code § 508.149, the current statute addressing release

on mandatory supervision. He further asserts that his confinement violates the United States

 

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 In his traverse, he reasserts some of the arguments and contentions made in his supporting brief while also presenting

other arguments, including a claim that the State is contractually bound to credit his sentence for his work credits; that

respondent has created a “quasi interest” by placing the credits into their computer; that the failure to credit his sentence

constitutes cruel and unusual punishment. 

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Constitution and Article 23(2) of the United Nations Charter of Universal Declaration of Human

Rights, which provides that “Everyone, without any Discrimination, has the Right to equal pay for

equal work.” Finally, he contends in a section titled “Pendent Jurisdiction” that respondent has

fraudulently misused state property by inputting his credit calculations “into its computer”, and that

pursuant to the “Clean Hands Doctrine”, respondent’s deceptive reward to petitioner of time credits

constitute quasi-good-time credits earned.3

The Court first begins with the well-settled proposition that federal habeas relief cannot be

had “absent the allegation by a [petitioner] that he or she has been deprived of some right secured

to him or her by the United States Constitution or the laws of the United States.” Orellana v. Kyle,

65 F.3d 29, 31 (5th Cir. 1995). Petitioner here argues that he has been deprived of rights under the

United States Constitution and a treaty that requires equal pay for equal work. No court has applied

the treaty in the prison context. Furthermore, the United Nations Charter merely sets a “goal of

‘equal pay for equal work’”, and does not “create binding international law.” See In re S. African

Apartheid Litig., 346 F. Supp. 2d 538, 552-53 (S.D.N.Y. 2004). Thus, even if the treaty applies in

the prison context, the equal pay provision of the treaty provides no basis for habeas relief. 

The Court next turns to the alleged deprivation of a constitutional right. “There is no

constitutional or inherent right of a convicted person to be conditionally released before the

expiration of a valid sentence.” Greenholtz v. Inmates of Neb. Penal & Corr. Complex, 442 U.S. 1, 7

(1979). Although a particular state may create a constitutionally protected interest in parole, see

 

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id. at 12, Texas has created no such protected liberty interest which would implicate constitutional

considerations, see Johnson v. Rodriguez, 110 F.3d 299, 308 (5th Cir. 1997); Allison v. Kyle, 66 F.3d

71, 74 (5th Cir. 1995); Orellana, 65 F.3d at 32. Furthermore, while “[t]he Constitution does not

guarantee good time credit for satisfactory behavior while in prison”, a state may “create a right to

good time credit” that is protected by the Constitution. Madison v. Parker, 104 F.3d 765, 768 (5th

Cir. 1997) (citing Wolff v. McDonnell, 418 U.S. 539, 557 (1974)). Texas has created no liberty

interest in good-time credits in the context of parole. See id. However, for those covered by the

mandatory supervision scheme in place in Texas prior to September 1, 1996 for earned good-time

credits, Texas has created an expectation of early release that is protected by the United States

Constitution, see Malchi v. Thaler, 211 F.3d 953, 957-58 (5th Cir. 2000). 

A. Parole

Although he is eligible for parole, petitioner has no constitutionally protected expectation

for release on parole. To the extent he raises a due process claim related to a denial of release on

parole, such claim fails. See Johnson v. Rodriguez, 110 F.3d 299, 305 (5th Cir. 1997). Furthermore,

because petitioner has not shown that the State denied him release on parole because of any

purposeful discrimination or any impermissible motive, such as race, he has stated no valid equal

protection claim. See id. at 306. “The Fourteenth Amendment’s promise that no person shall be

denied the equal protection of the laws must coexist with the practical necessity that most legislation

classifies for one purpose or another, with resulting disadvantage to various groups or persons.”

Romer v. Evans, 517 U.S. 620, 631 (1996). Thus, “a party who wishes to make out an Equal Protection claim must prove “the existence of purposeful discrimination” motivating the state action

which caused the complained-of injury.” Johnson, 110 F.3d at 306. Having considered all of peti-

 

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 Section 8(c) of Article 42.18 provides in pertinent part that “[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.” Section 508.149(a) specifically makes an inmate

ineligible for release “to mandatory supervision if the inmate is serving a sentence for or has been previously convicted

of . . . (1) an offense for which the judgment contains an affirmative finding under Section 3g(a)(2), Article 42.12, Code

of Criminal Procedure.”

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tioner’s various arguments and contentions, the Court finds no constitutional violation related to

petitioner’s continued incarceration despite his eligibility for parole. As stated in Section 4 of Article

6181-1, time credit for good conduct, including work-credits, is a privilege that only applies to

eligibility for parole or mandatory supervision and does “not otherwise affect the inmate’s term” of

incarceration.” 

B. Mandatory Supervision

By virtue of his conviction for attempted murder with a deadly weapon, petitioner is not

eligible for release on mandatory supervision. See Tex. Code Crim. Proc. Ann. art. 42.18, § 8(c)

(Vernon 1988) (now codified as Tex. Gov’t Code § 508.149(a)(1) (2006)).4

 Petitioner contends

that § 508.149 unconstitutionally discriminates between “3g offenders” and “other offenders.” He

further contends that the statute denies his liberty interest in “some type of incentive” if his “earned

credits are meaningless.” 

Petitioner’s challenge to the mandatory supervision scheme applicable to him entitles him

to no habeas relief. All prisoners convicted of attempted murder with a deadly weapon in 1989,

regardless of race or other impermissible factor, are ineligible for release on mandatory supervision.

“The State does not violate the tenants of equal protection by precluding release on mandatory

supervision to prisoners who have committed certain enumerated offenses. Making certain classes

of prisoners ineligible for release on mandatory supervision based upon the nature of their underlying

 

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 Although the Court has considered all of petitioner’s various arguments, the unaddressed arguments do not warrant

discussion in light of the principles relied upon in the body of these findings and recommendation. The Court

nevertheless notes that “[i]ncarceration does not constitute cruel and unusual punishment.” Gill v. Stella, 845 F. Supp.

94, 102 (E.D.N.Y. 1994). Rather, “[a]fter incarceration, only the unnecessary and wanton infliction of pain constitutes

cruel and unusual punishment.” Ingraham v. Wright, 430 U.S. 651, 670 (1977) (citations and internal quotation marks

omitted). The failure to credit petitioner’s sentence with the time credits that he has earned does not constitute cruel

or unusual punishment. 

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criminal offense does not offend the notion of equal protection.” Russell v. Cockrell, No. 3:01-CV1425-D, 2003 WL 21750862, at *7 (N.D. Tex. July 25, 2003) (findings, conclusions, and

recommendation accepted by District Court). That the mandatory supervision statute differentiates

between offenders based on crime of conviction does not make the statute unconstitutional. 

With respect to the contention that the statute denies petitioner a liberty interest in “some

type of incentive”, the Court first notes that his earned credits are not “meaningless” considering

that by statute, they are factored into his eligibility for parole. The law is clear, moreover, that a

prisoner who is ineligible for release to mandatory supervision is deprived of no protected liberty

interest when he or she is denied release to mandatory supervision. Ineligible inmates simply have

no liberty interest in release to mandatory supervision.

Having considered all of petitioner’s various arguments and contentions, the Court finds no

constitutional violation related to petitioner’s continued incarceration despite the availability of

release to mandatory supervision for other inmates. 

In conclusion, although he frames his arguments in various ways, petitioner is entitled to no

habeas relief on his first claim because the application of his time credits have not deprived him of

any right secured to him by the United States Constitution or the laws of the United States.5

 

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V. CLAIM TWO

In his second claim, petitioner complains about a “paper hearing” conducted in state court

related to the state habeas application he filed to challenge the application of his time credits to his

sentence. He asserts that the hearing was unfair, and that the court lacked jurisdiction to make

“findings due to a pending Recusal motion.” 

Petitioner’s second claim raises no claim cognizable under 28 U.S.C. § 2254. As already

mentioned, federal habeas relief cannot be had “absent the allegation by a [petitioner] that he or she

has been deprived of some right secured to him or her by the United States Constitution or the laws

of the United States.” Orellana v. Kyle, 65 F.3d 29, 31 (5th Cir. 1995); accord 28 U.S.C. § 2254(a).

This Court cannot grant habeas corpus relief “to correct alleged errors in state habeas proceedings.”

See Trevino v. Johnson, 168 F.3d 173, 180 (5th Cir. 1999) (holding that habeas relief was not

available for such alleged errors). “[E]rrors in state postconviction proceedings will not, in and of

themselves, entitle a petitioner to federal habeas relief.” Morris v. Cain, 186 F.3d 581, 585 n.6 (5th

Cir. 1999). Such errors necessarily fail “because infirmities in state habeas proceedings do not constitute grounds for relief in federal court.” Hallmark v. Johnson, 118 F.3d 1073, 1080 (5th Cir. 1997).

VI. MOTION FOR SUMMARY JUDGMENT

In light of respondent’s answer filed in this action, petitioner moved for summary judgment

on September 1, 2006. He moves for summary judgment 

because His [sic] sentence, Cadena Temporal, is Unconstitutional, where it makes

no measurable contributions to acceptable goals of Punishment, and hence is nothing

more than the purposeless, needless imposition of pain and suffering; is grossly out

of proportion to the severity of Petitioner’s crime, and is disproportionate punishment

sustained through fraud and exploitation, where Discriminatory Privileges bestowed

in violation of evolving standards of decency, i.e., “Cruel and Unusual Punishment”.

 

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The Court should deny petitioner’s motion for summary judgment for the same reasons that it should

deny his habeas petition. 

VII. EVIDENTIARY HEARING

Upon review of the pleadings filed herein, an evidentiary hearing appears unnecessary.

VIII. RECOMMENDATION

For the foregoing reasons, the undersigned Magistrate Judge RECOMMENDS that the

District Court DENY with prejudice the request for habeas corpus relief brought pursuant to 28

U.S.C. § 2254. It is further recommended that the District Court DENY petitioner’s request to

terminate the assignment of the undersigned Magistrate Judge to this case and DENY his motion

for summary judgment. 

SIGNED this 19th day of December, 2006.

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO APPEAL/OBJECT

The United States District Clerk shall serve a copy of these findings, conclusions, and recommendation on all parties by mailing a copy to each of them. Pursuant to 28 U.S.C. § 636(b)(1), any

party who desires to object to these findings, conclusions and recommendation must file and serve

written objections within ten days after being served with a copy. A party filing objections must specifically identify those findings, conclusions, or recommendation to which objections are being made.

The District Court need not consider frivolous, conclusory or general objections. Failure to file

written objections to the proposed findings, conclusions, and recommendation within ten days after

being served with a copy shall bar the aggrieved party from appealing the factual findings and legal

conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds

of plain error. Douglass v. United Servs. Auto Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc).

 ___________________________________

 IRMA CARRILLO RAMIREZ

 UNITED STATES MAGISTRATE JUDGE

 

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