IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

SHAWN DEWAYNE MORRIS, §

Petitioner, §

§

v. § CIVIL ACTION NO. 4:05-CV-0451-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 under 28 U.S.C. § 2254. 

B. PARTIES

Petitioner Shawn Dewayne Morris, TDCJ-ID # 661765, is in custody of the Texas

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

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

Correctional Institutions Division (TDCJ).

C. FACTUAL AND PROCEDURAL HISTORY

On December 20, 1993, Morris was sentenced to four concurrent fifteen-year sentences

 

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“3State Habeas R,” “4State Habeas R,” “5State Habeas R.,” and “6State Habeas R.” refer

to the court records for Morris’s state habeas Application Nos. WR-25,975-03, WR-25,975-04, WR25,975-05, and WR-25,975-06, respectively.

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stemming from various criminal charges in the 372nd District Court of Tarrant County, Texas.

(3State Habeas R. at 32; 4State Habeas R. at 32; 5State Habeas R. at 32; 6State Habeas R. at 31.)1

Morris was released on mandatory supervision on May 18, 2001. (Resp’t Answer, Exhibit A.) On

February 24, 2004, a warrant issued for his arrest due to alleged violations of the conditions of his

release, and, on August 25, 2004, after a hearing, his mandatory supervision was revoked. (Parole

Records at 1-2, 13.) Morris was penalized by forfeiture of his prior earned good time credits and

street time credit. (Resp’t Answer, Exhibit A.) Morris pursued administrative time credit dispute

resolution and state habeas relief to no avail. See TEX. GOV’T CODE ANN. § 501.0081 (Vernon

2004); Ex parte Morris, Application Nos. WR-25,975-02 through 25,975-06, at cover. Morris filed

this federal petition for writ of habeas corpus in the Houston Division on June 2, 2005, and the

action was transferred to this division by order dated July 6, 2005.

D. ISSUES

Morris purports to raise four grounds for federal habeas relief. (Petition at 7-8.) Although

confusing, his grounds are construed as raising two primary claims: (1) TDCJ has violated his state

and federal constitutional rights by denying him credit for the time he spent in jail pending parole

revocation proceedings, and (2) TDCJ has violated his state and federal due process rights by

forfeiting credit for the time he spent on mandatory supervision (street time) under HB 1649, thereby

unlawfully extending and enlarging his sentence. (Petition at 7-8 & Attachment.)

E. RULE 5 STATEMENT

Dretke contends that Morris has failed to exhaust one or more of his claims as required by

 

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28 U.S.C. § 2254(b) and (c), and that the claims are procedurally barred. 

D. DISCUSSION

A Texas prisoner challenging the failure to be awarded time credits toward his sentence may

satisfy the exhaustion requirement by presenting both the factual and legal substance of his claim

to the Texas Court of Criminal Appeals in a state habeas corpus proceeding pursuant to article 11.07

of the Texas Code of Criminal Procedure. See TEX. CODE CRIM. PROC. ANN. art. 11.07 (Vernon

2005); Alexander v. Johnson, 163 F.3d 906, 908-09 (5th Cir. 1998); Bautista v. McCotter, 793 F.2d

109, 110 (5th Cir. 1986); Richardson v. Procunier, 762 F.2d 429, 432 (5th Cir. 1985). See also Ex

Parte Bates, 978 S.W.2d 575, 576-77 (Tex. Crim. App. 1998). Before seeking relief under article

11.07, Texas inmates are required to first pursue time-credit complaints through a dispute resolution

process within the prison system. See TEX. GOV’T CODE ANN. § 501.0081. 

Morris apparently availed himself of the administrative review process set forth in §

501.0081, although no records of that proceeding(s) were filed in this court. (Resp’t Answer,

Exhibit A.) Morris also filed five state applications for writ of habeas corpus, one for each

conviction in state court Cause Nos. 0443935D, 0495690D, 0505272D, 0513629D, and 0513626D,

respectively. In each state habeas application, Morris raised only one ground for relief, claiming that

the denial of his street time credit violated ex post facto and double jeopardy protections under the

state and federal constitutions and unlawfully extended his sentences by an additional three years.

(2State Habeas R. at 7, 11-19; 3State Habeas R. at 7, 11-19; 4State Habeas R. at 7, 11-19; 5State

Habeas R. at 7, 11-19; 6State Habeas R. at 7, 11-19.) He did not raise any claim pertaining to the

denial of jail time credits or the due process claims he now raises pertaining to the forfeiture of his

street time credit. The exhaustion requirement is not satisfied where the petitioner presents new

 

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factual claims or legal theories in his federal habeas petition. Neville v. Dretke, 423 F.3d 474, 478

(5th Cir. 2005). Because Morris did not raise the same constitutional claims presented in this petition

in his state habeas applications, the claims are unexhausted. Under the Texas abuse-of-the-writ

doctrine, however, he cannot now return to state court for purposes of exhausting the claims. See

TEX.CODE CRIM.PROC.ANN. art. 11.07, § 4. The abuse-of-the-writ doctrine represents an adequate

state procedural bar to federal habeas review. See Nobles v. Johnson, 127 F.3d 409, 423 (5th Cir.

1997). Therefore, absent a showing of cause and prejudice or a miscarriage of justice, such showing

not having been demonstrated, Morris’s claims are procedurally barred from this court’s review. See

Smith v. Johnson, 216 F.3d 521, 523- 24 (5th Cir. 2000). 

Moreover, Morris was not entitled to street time under HB 1649 because he had not reached

the mid-point calculation. (Resp’t Answer, Exhibit A.) See TEX. GOV’T CODE ANN. § 508.283©)

(Vernon 2004). Thus, his argument that forfeiture of his street time unlawfully lengthens or

prolongs his sentences beyond the original term imposed by the trial court is without merit, even

though his maximum sentence discharge date may have been extended due to the forfeiture. See

Sanchez v. Cockrell, No. 4:00-CV-1803-Y, 2001 WL 1297677, at *3 (N.D. Tex. Oct. 11, 2001);

Reynolds v. Johnson, No. 4:00-CV-391-Y, 2001 WL 180165, at *3 (N.D. Tex. Feb. 20, 2001),

adopted, 2001 WL 215945 (N.D. Tex. Mar. 2, 2001). Under state law, time credits have no effect

on the length of sentence imposed. Consequently, an inmate’s punishment is not increased by the

forfeiture of time credits. Morris was informed upon his release on mandatory supervision that in

the event of revocation, time spent on release would be forfeited. (Parole Records at 17.) A prisoner

serving the remaining portion of his sentence after revocation does not violate the Constitution. See

Morrison v. Johnson, 106 F.3d 127, 129 n.1 (5th Cir. 1997).

 

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1II. RECOMMENDATION

Based on the foregoing, it is recommended that Morris’s petition for writ of habeas corpus

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

1specific written objections to the United States Magistrate Judge’s proposed findings, conclusions,

and recommendation until December 23, 2005. 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 December 23, 2005,

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

 

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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 December 2, 2005.

 /s/ Charles Bleil 

CHARLES BLEIL

UNITED STATES MAGISTRATE JUDGE

 

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