HAB54\R&R\GARNER-258.PRLREV:2

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

PHIL EDWIN GARNER, §

§

Petitioner, §

§

v. § 2:05-CV-0258

§

NATHANIEL QUARTERMAN, Director, §

Texas Department of Criminal Justice, §

Correctional Institutions Division, §

§

Respondent. §

REPORT AND RECOMMENDATION TO DENY PETITION FOR 

A WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY

Petitioner PHIL EDWIN GARNER has filed with this Court a Petition for a Writ of Habeas

Corpus by a Person in State Custody challenging his July 14, 2004 parole revocation and

respondent’s calculation of petitioner’s time credits. For the reasons set forth below, it is the

opinion of the undersigned United States Magistrate Judge that petitioner’s federal application for

habeas corpus relief should be DENIED.

I.

PROCEDURAL HISTORY

On April 28, 1986, in Cause No. 7106-A, petitioner was indicted in the 88th Judicial District

Court of Tyler County, Texas, for the offense of aggravated sexual assault, a first degree felony. 

On July 11, 1986, petitioner, pursuant to a plea agreement, pled guilty to the offense of sexual

assault, a second degree felony, said offense being reduced pursuant to the plea agreement. The

 

 

FILED

AUGUST 8, 2008

 

 

 

 

 

 KAREN S. MITCHELL

CLERK, U.S. DISTRICT COURT 
1

On April 4, 2001, petitioner was arrested in Arkansas and charged with “possession of firearms by certain persons.” On

July 31, 2001, petitioner plead guilty to the offense and was placed on probation by the Arkansas circuit court for a term of five (5)

years. The State of Texas allowed petitioner to continue his parole with no further action taken. Exhibit A, p. 20-21.

2

Petitioner’s Arkansas parole officer described the offense as follows:

On or about 12/02/03, I received a phone call from David Wilburn who stated he and Garner had been having

problems and that he [Wilburn] had been arrested by the Garland County Sheriff’s Office. Wilburn state that

the charges were dismissed because Garner had submitted a false police report. Wilburn further stated that

Garner was arrested and charged with submitting a false report against Wilburn. Wilburn stated he received a

phone call from one of his neighbors who told him that Garner was going to shoot him. On 12/04/03 I made a

home visit to Garner’s listed address and found two long guns in the master bedroom closet. Garner was arrested

and charged with possession of firearms by certain persons, a class D felony.

Petitioner’s parole officer noted as petitioner’s statement: “Garner stated the guns were not his but belong to his brother.”

Affidavit A, p. 20, 23. The firearms at issue were a .22 caliber rifle and a Bobcat .50 caliber muzzle loader. Affidavit A, p. 21. 

3

Petitioner testified at the preliminary hearing that he did not know the guns were in his residence, that his mother brought

the weapons into the house while he and his family were at the lake, that his mother did not tell him about the guns, that he had told

his parole office he thought his brother had brought the guns to the house, and that he denied threatening to shoot his neighbor.

Petitioner’s mother also testified she placed the guns into the closet, albeit a different closet, and forgot to tell her son.

HAB54\R&R\GARNER-258.PRLREV:2 2

trial court found petitioner guilty of the offense of sexual assault and assessed petitioner’s

punishment at confinement in the Texas Department of Criminal Justice, Institutional Division

(TDCJ-ID) for twenty (20) years. The trial court credited petitioner with jail time from April 25,

1986 through July 11, 1986, resulting in a sentence begin date of April 25, 1986. 

On March 23, 1990, petitioner was granted early release to parole with supervision of parole

to be administered by the State of Arkansas.1 On December 4, 2003, petitioner was arrested in

Arkansas for “possession of firearms by certain persons.”2 The Texas Board of Pardons and Paroles

issued a pre-revocation warrant for petitioner’s arrest on January 8, 2004 alleging he had violated

the terms of his Texas parole. On February 13, 2004, a probable cause hearing was held during

which petitioner’s parole officer testified.3

 The hearing judge determined probable cause did exist

to show a violation of petitioner’s Texas parole. On May 25, 2004, petitioner pled guilty to

violating the terms of his 5-year probation previously assessed in Arkansas on July 31, 2001 by

being in possession of a firearm December 4, 2003, while on probation. Petitioner was found guilty
HAB54\R&R\GARNER-258.PRLREV:2 3

of violating his probation, his probation was terminated, and he was assessed a 6-year sentence for

the 2001 offense, said sentence also being suspended. Affidavit A, pp. 35-41. On May 26, 2004,

pursuant to a negotiated plea of guilty, petitioner was found guilty of the December 4, 2003

“possession of firearms by certain persons” offense and was assessed a 6-year sentence, said

sentence also being suspended. Affidavit A, pp. 42-43. On June 17, 2004, petitioner was informed

of his rights in the Texas revocation process, and that he was charged with violating his parole by

violating a state law and for possessing a firearm (conditions 2 and 5). 

On June 28, 2004, the Board of Pardons and Paroles conducted a parole revocation hearing

on the allegations that petitioner had failed to comply with the terms of his parole by committing a

new criminal offense, to wit: possession of firearms by certain persons, and by violating the parole

condition prohibiting possession of a firearm. At the hearing, petitioner denied both allegations. 

On July 14, 2004, the Parole Board found petitioner had violated the terms of his release and

revoked petitioner’s parole.

On August 9, 2004, petitioner requested a correction of time credited toward the completion

of his sentence pursuant to respondent’s internal time credit dispute resolution process. On March

21, 2005, petitioner’s request was denied. On March 28, 2005, petitioner sought review of his

parole revocation by filing a state application for habeas corpus relief. By his habeas application,

petitioner asserted the revocation of petitioner’s parole was unconstitutional because:

1. The possession of a firearm offense of which he was found guilty was a

violation of his Constitutional right to bear arms in his habitation;

2. The evidence was insufficient to show petitioner possessed a firearm; and

3. Petitioner was denied his right to confront witnesses against him, to wit:

petitioner’s parole officer, which confrontation would have revealed

petitioner did not possess a firearm.
4

See Spotville v. Cain, 149 F.3d 374, 376-78 (5th Cir. 1998) (a prisoner’s federal habeas corpus petition is deemed filed when

he delivers the petition to prison officials for mailing to the district court).

HAB54\R&R\GARNER-258.PRLREV:2 4

On May 25, 2005, the Texas Court of Criminal Appeals denied such petition without written order. 

In re Garner, No. 62,035-01.

On July 6, 2005, petitioner sought reinstatement of 14 years street time by filing a state

application for habeas corpus relief. By this habeas application, petitioner asserted he was

unconstitutionally being denied time credits toward his sentence because:

1. The Texas Legislature constitutionally repealed article 42.12 of the Texas

Code of Criminal Procedure and the “3g, 1/3 law in 1977" and “42.18 1/4 law

in 1987"; 

2. Failing to give petitioner credit for his street time constituted a violation of

the prohibition against double jeopardy;

3. Petitioner was being forced to serve his sentence in installments; and

4. Petitioner was entitled to credit for his street time under Texas Government

Code § 508.149 and 508.283.

On August 31, 2005, the Texas Court of Criminal Appeals denied such petition without written

order. In re Garner, No. 62,035-02.

On September 13, 2005, petitioner filed the instant application for federal habeas relief with

this Court, said petition being received and filemarked September 16, 2005.4 On April 21, 2006,

respondent filed an answer opposing federal habeas corpus relief.

II.

PETITIONER'S ALLEGATIONS

Petitioner appears to contend he is being held in violation of the Constitution and laws of the 
HAB54\R&R\GARNER-258.PRLREV:2 5

United States for the following reasons:

1. The Texas Board of Pardons and Paroles lied to petitioner by originally

giving him a discharge date of April 25, 2006, and has unlawfully extended

petitioner’s 20-year sentence by 16 years;

2. Petitioner was not given a new trial before his sentence was extended by 16

years;

3. Petitioner was originally sentenced in 1986 when good time forfeited upon

revocation was reinstated after petitioner had served 90 days in TDCJ-CID

and new laws disallowing reinstatement of good time have been applied to

him retroactively;

4. Petitioner was denied his right to call and confront witnesses at his

revocation hearing, namely his parole officer from Arkansas;

5. The denial of petitioner’s street time credits constitutes double jeopardy;

6. Petitioner was denied effective assistance of counsel at his revocation hearing

because counsel did not call witnesses and cross-examine witnesses at the

hearing, namely his parole officer in Arkansas;

7. The manner in which petitioner’s sentence has been executed constitutes

cruel and unusual punishment; and

8. Petitioner was entitled to street time under Texas Government Code §

508.149 and .283.

III.

EXHAUSTION OF STATE COURT REMEDIES

Section 28 U.S.C. § 2254 states, as relevant to this proceeding:

(b)(1) An application for a writ of habeas corpus on behalf of a person in custody

pursuant to the judgment of a State court shall not be granted unless it appears that— 

(A) the applicant has exhausted the remedies available in the

courts of the State; or

(B)(I) there is an absence of available State corrective process; or

(ii) circumstances exist that render such process ineffective to
HAB54\R&R\GARNER-258.PRLREV:2 6

protect the rights of the applicant.

(2) An application for a writ of habeas corpus may be denied on the merits,

notwithstanding the failure of the applicant to exhaust the remedies available in the

courts of the State.

(3) . . .

(c) An applicant shall not be deemed to have exhausted the remedies available in the

courts of the State, within the meaning of this section, if he has the right under

the law of the State to raise, by any available procedure, the question presented.

28 U.S.C. § 2254. The exhaustion doctrine set forth in section 2254 requires that the state courts be

given the initial opportunity to address and, if necessary, correct alleged deprivations of federal

constitutional rights in state cases. Castille v. Peoples, 489 U.S. 346, 349, 109 S.Ct. 1056, 1059

(1989). The doctrine serves “to protect the state courts’ role in the enforcement of federal law and

prevent disruption of state judicial proceedings.” Rose v. Lundy, 455 U.S. 509, 518, 102 S.Ct. 1198,

1203, 71 L.Ed.2d 379 (1982). 

Under our federal system, the federal and state courts are equally bound to guard and

protect rights secured by the Constitution. Because it would be unseemly in our dual

system of government for a federal district court to upset a state court conviction

without an opportunity to the state courts to correct a constitutional violation, federal

courts apply the doctrine of comity, which teaches that one court should defer action

on causes properly within its jurisdiction until the courts of another sovereignty with

concurrent powers, and already cognizant of the litigation, have had an opportunity

to pass upon the matter. 

Id. (brackets, internal quotation marks, and citations omitted). To have exhausted his state

remedies, a habeas petitioner must have fairly presented the substance of his federal constitutional

claims to the state courts. Nobles v. Johnson, 127 F.3d 409, 420 (5th Cir. 1997), cert. denied, 523

U.S. 1139, 118 S.Ct. 1845, 140 L.Ed.2d 1094 (1998). This requires that any federal constitutional

claim presented to the state courts be supported by the same factual allegations and legal theories

upon which the petitioner bases his federal claims. Picard v. Connor, 404 U.S. 270, 276, 92 S.Ct.
HAB54\R&R\GARNER-258.PRLREV:2 7

509, 512, 30 L.Ed.2d 438 (1971). Further, in order to satisfy the federal exhaustion requirement,

petitioner must fairly present to the highest state court each constitutional claim he wishes to assert

in his federal habeas petition. Skelton v. Whitley, 950 F.2d 1037, 1041 (5th Cir.), cert. denied sub

nom. Skelton v. Smith, 506 U.S. 833, 113 S.Ct. 102, 121 L.Ed.2d 61 (1992); Richardson v.

Procunier, 762 F.2d 429, 431 (5th Cir. 1985); Carter v. Estelle, 677 F.2d 427, 443 (5th Cir. 1982),

cert. denied, 460 U.S. 1056, 103 S.Ct. 1508, 75 L.Ed.2d 937 (1983). In the state of Texas, the

Court of Criminal Appeals in Austin, Texas is the highest court which has jurisdiction to review a

petitioner’s confinement. Tex. Code Crim. Proc. Ann. art. 44.45 (Vernon 1999). Claims may be

presented to that court through an application for a writ of habeas corpus, see Tex. Code Crim.

Proc. Ann. art. 11.01 et seq. (Vernon 1999), or on direct appeal by a petition for discretionary

review.

The only claims raised in the instant federal habeas application that were raised during the

state habeas application are petitioner’s allegations that (1) he was denied the right to confront and

cross-examine his parole officer at the revocation hearing, (2) that the denial of petitioner’s street

time credits constitutes double jeopardy, and (3) that petitioner is entitled to his street time under

the Texas Government Code. The other claims raised in this federal habeas application are either

new claims never heard by the state’s highest court, or are claims premised on a factual basis that is

different than that presented in the state habeas proceeding. Consequently, with the exception of

the three (3) claims identified above, the state courts were not given an opportunity to properly

investigate, address, and determine the merits of petitioner’s alleged deprivations of federal

constitutional rights in his state court proceedings. Therefore, petitioner has not sufficiently

exhausted his available state court remedies with regard to any of his claims other than the claims
5

The abuse of the writ rule can be an adequate and independent state ground foreclosing federal habeas review. Lowe v.

Scott, 48 F.3d 873, 875 (5th Cir. 1995). Such a procedural rule that acts as a bar, however, must be “firmly established and regularly

followed.” Ford v. Georgia, 498 U.S. 411, 423, 111 S.Ct. 850, 112 L.Ed.2d 935 (1991). The Fifth Circuit Court of Appeals has

determined that the Texas abuse of the writ doctrine has been strictly and regularly applied since 1994. Fuller v. Johnson, 158 F.3d

903, 905 (5th Cir. 1998); Emery v. Johnson, 139 F.3d 191, 195, 201 (5th Cir. 1997), cert. denied, 525 U.S. 969, 119 S.Ct. 418, 142

L.Ed.2d 339 (1998). 

HAB54\R&R\GARNER-258.PRLREV:2 8

set forth above.

Further, petitioner would be precluded, by the Texas abuse of the writ doctrine, see Tex.

Code Crim. Proc. Ann. art. 11.07 § 4 , from raising his unexhausted allegations in a future state

habeas application. See Tex. Code Crim. Proc. Art. 11.07 § 4. If a petitioner "fails to exhaust

available state remedies and 'the court to which the petitioner would be required to present his

claims in order to meet the exhaustion requirement would find the claims procedurally barred',"

then the claim is procedurally defaulted.5

 Jones v. Jones, 163 F.3d 285, 296 (5th Cir. 1998)

(quoting Nobles v. Johnson, 127 F.3d 409, 420 (5th Cir. 1997), cert. denied, 523 U.S. 1139, 118

S.Ct. 1845, 140 L.Ed.2d 1094 (1998) (quoting Coleman v. Thompson, 501 U.S. 722, 735 n. 1, 111

S.Ct. 2546, 115 L.Ed.2d 640 (1991)). In other words, when federal habeas claims "are 'technically'

exhausted because, and only because, [petitioner] allowed his state law remedies to lapse without

presenting his claims to the state courts ... [,] there is no substantial difference between

nonexhaustion and procedural default." Id. (quoting Magouirk v. Phillips, 144 F.3d 348, 358 (5th

Cir.1998)). Here, because petitioner failed to exhaust any of his claims other than those specifically

listed above, said claims, with the noted exceptions, are procedurally defaulted.

There is, however, a “cause and prejudice” exception to the bar for failure to exhaust. 

“When the ground upon which the petitioner relies for habeas relief was not exhausted in state court

and state procedural rules would bar subsequent presentation of the argument,” this Court will not

consider petitioner’s unexhausted claim absent ‘cause’ and ‘prejudice.’” Beazley v. Johnson, 2001
HAB54\R&R\GARNER-258.PRLREV:2 9

WL 118393, *15 (5th Cir. 2001) (quoting Little v. Johnson, 162 F.3d 855, 859 (5th Cir. 1998), cert.

denied, 526 U.S. 1118, 119 S.Ct. 1768, 143 L.Ed.2d 798 (1999)). Federal habeas relief will not be

granted on a procedurally defaulted claim unless the petitioner can demonstrate both good cause for

the default and actual prejudice as a result of the alleged violation of federal law, or demonstrate

that failure to consider the claim will result in a fundamental miscarriage of justice. Id. (citing

Moawad v. Anderson, 143 F.3d 942, 947 (5th Cir.) , cert. denied, 525 U.S. 952, 119 S.Ct. 383, 142

L.Ed.2d 316 (1998) (pre-AEDPA); Nobles, 127 F.3d at 423 n. 33 (post-AEDPA); Williams v. Cain,

125 F.3d 269, 276 (5th Cir.1997), cert. denied, 525 U.S. 859, 119 S.Ct. 144, 142 L.Ed.2d 116

(1998) (post-AEDPA); cf. United States v. Flores, 135 F.3d 1000, 1006 n. 23 (5th Cir.1998), cert.

denied, 525 U.S. 1091, 119 S.Ct. 846, 142 L.Ed.2d 700 (1999) (post-AEDPA, section 2255)).

Petitioner has not argued, much less demonstrated, just cause for his failure to raise the

unexhausted claims in his state court proceedings. The undersigned finds no factors constituting

just cause for petitioner’s failure to raise his allegations before the state’s highest court. The claims,

as well as the factual support for his claims, were readily apparent at the time petitioner’s state

habeas applications were filed and petitioner could have included such in his state actions. Because

petitioner has failed to show sufficient cause for his state procedural default, a “prejudice” analysis

is not necessary. Further, the failure to consider the claims will not result in a fundamental

miscarriage of justice. Consequently, petitioner’s claims, with the exceptions noted above, have

been procedurally defaulted as a result of petitioner’s failure to exhaust at the state court level, are

not cognizable in federal habeas proceedings, and should be dismissed. Accordingly, the only

claims which will proceed for further consideration are petitioner’s claims that:

1. he was denied the right to confront and cross-examine his parole officer at

the revocation hearing;
6

This Court thus need not decide whether equitable tolling is appropriate for the time a petitioner is exhausting his

administrative remedies in the parole context, or whether the pursuit of such administrative remedies can be deemed “other collateral

review” warranting tolling pursuant to § 2244(d)(2), or even whether respondent could assert, on federal habeas review, that a

petitioner has not exhausted his state administrative remedies if he has not filed a motion to reopen and is now procedurally barred

from so filing.

HAB54\R&R\GARNER-258.PRLREV:2 10

2. the denial of petitioner’s street time credits constitutes double jeopardy; and

3. petitioner is entitled to credit for his street time under the Texas Government

Code. 

IV.

TIME BAR

Claim Challenging Parole Revocation

In cases challenging state parole revocations, the one-year limitation period of the AEDPA

begins to run on the “date the factual predicate of the claim or claims presented could have been

discovered through the exercise of due diligence.” If revoked, a parolee is afforded the right to

request the Board reopen the revocation hearing within 45 days from the date of the Board's

decision. 37 Tex. Admin. Code § 145.54 (West 2004). The record does not reflect petitioner filed a

motion to reopen his revocation hearing.6

 Consequently, the one-year period of limitation as to

petitioner’s claims began on the date petitioner’s parole was revoked, i.e., July 14, 2004, requiring

his federal habeas petition be filed on or before July 14, 2005. Cf. Bailey v. Johnson, 2001 WL

282756 (N.D. Tex. March 15, 2001) (respondent considered the date the petitioner learned of the

denial of his motion to reopen as the latest possible date on which the factual predicate of his claims

could have been discovered through the exercise of due diligence). 

On March 28, 2005, petitioner filed a state habeas application challenging his parole

revocation and raising, as relevant here, the denial of his right to confront witnesses. On May 25,

2005, the Texas Court of Criminal Appeals denied petitioner’s state habeas application without
7

Even if this Court were to consider the merits of petitioner’s claim that he was denied his right to confront witnesses rather

than finding such claim time barred, petitioner could not prevail as petitioner admitted in his probation revocation proceeding that

he illegally possessed the firearms.

HAB54\R&R\GARNER-258.PRLREV:2 11

written order. Therefore, the statute of limitations was tolled for the fifty-four (54) days his state

habeas application was pending, rendering petitioner’s federal habeas application due on or before

September 6, 2005. On September 13, 2005, petitioner filed the instant federal habeas application

with this Court, one week late. This short period resulting in the untimeliness of petitioner’s federal

habeas is not a matter which may be disregarded by this Court. Further, petitioner has not

demonstrated he is entitled to any equitable tolling with regard to his claim that he was denied the

right to confront and cross-examine witnesses. Therefore, petitioner’s first claim should be

dismissed as time barred.7

Claims Seeking Street Time

Petitioner’s remaining claims seek reinstatement of street time on the bases that (1) the

denial of petitioner’s street time credits constitutes double jeopardy; and (2) petitioner is entitled to

credit for his street time under Texas Government Code § 508.283. The record does not reflect

when petitioner discovered the factual predicate of these claims or when petitioner could have

discovered his claims through the exercise of due diligence. However, at some point between the

revocation of his parole on July 14, 2004 and the filing of his time credit dispute on August 9, 2004,

petitioner discovered his sentence was not being credited with his street time (most likely when he

received his first time slip from TDCJ-CID). The undersigned will use August 9, 2004 as the date

on which petitioner discovered his claim and the statute of limitations began. 

On August 9, 2004, petitioner filed his claim for time-served credit under TDCJ-CID’s time

credit dispute resolution process. See Tex.Govt Code Ann. § 501.0081. Such dispute was denied
8

See, e.g., Kimbrell v. Cockrell, 311 F.3d 361, 364 (5th Cir. 2002).

HAB54\R&R\GARNER-258.PRLREV:2 12

on March 21, 2005. Respondent argues this 7-month period of time during which the time credit

dispute resolution process was pending should not statutorily or equitably toll the statute of

limitations for filing petitioner’s federal habeas application. While the federal habeas statute does

not specifically provide for any tolling of the limitations period while Texas administrative dispute

resolution proceedings specific to time complaints are pending, the Texas Court of Criminal

Appeals will dismiss time credit claims raised in a state petition for habeas relief for failing to

exhaust the time credit dispute administrative remedies. As of January 1, 2000, inmates are

required to “first pursue claims of denial of time credits through a dispute-resolution process

within the prison system before seeking relief pursuant to TEX. CODE CRIM. PROC. § 11.07.” 

Sorrells v. Cockrell, No. 4:01-CV-0324-A, 2001 WL 1148962, at *3 (N.D. Tex. Sept. 17, 2001).

Therefore, the undersigned is of the opinion that this 7-month time period should be either

statutorily tolled under section 2244(d)(2) similar to disciplinary grievance processes8

 or, at the

least, be subject to equitable tolling. Consequently, the limitation period which began on August

9, 2004 would be statutorily or equitably tolled from August 9, 2004 until March 21, 2005.

Petitioner filed his second state writ application challenging the denial of his street time

credits on July 6, 2005, three and one-half months later. This state writ application was denied

without written order August 31, 2005. Consequently, the limitations period was statutorily tolled

for the fifty-two (52) days this application was pending. Petitioner filed the instant federal habeas

application on September 13, 2005, only thirteen (13) days later, well within the 1-year limitations

period if the time during which the time credit dispute resolution process is pending is tolled. 

Petitioner’s claims challenging TDCJ-CID’s refusal to credit his sentence with street time should
HAB54\R&R\GARNER-258.PRLREV:2 13

be considered on the merits.

IV.

STANDARD OF REVIEW

Under 28 U.S.C. § 2254(d), a writ of habeas corpus on behalf of a person in custody under

a state court judgment shall not be granted with respect to any claim that was adjudicated on the

merits in state court proceedings unless he shows that the prior adjudication: (1) resulted in a

decision that was contrary to, or involved an unreasonable application of, clearly established

federal law 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. 28 U.S.C. § 2254(d). A decision is

contrary to clearly established federal law if the state court arrives at a conclusion opposite to that

reached by the United States Supreme Court on a question of law or if the state court decides a

case differently than the Supreme Court has on a set of materially indistinguishable facts. Williams

v. Taylor, 529 U.S. 362, 405-06 (2000); see also Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 2000),

cert. denied, 532 U.S. 1039 (2001). A state court decision will be an unreasonable application of

clearly established precedent if it correctly identifies the applicable rule but applies it objectively

unreasonably to the facts of the case. Williams, 529 U.S. at 407-08; see also Neal v. Puckett, 286

F.3d 230, 236, 244-46 (5th Cir. 2002) (en banc per curiam), cert. denied, 537 U.S. 1104 (2003). 

Section 2254(e)(1) provides that a determination of a factual issue made by a state court

shall be presumed to be correct. The applicant has the burden of rebutting this presumption of

correctness by clear and convincing evidence. Hill, 210 F.3d at 485. When the Texas Court of

Criminal Appeals denies relief in a state habeas corpus application without written order, it is an

adjudication on the merits, which is entitled to this presumption. Ex parte Torres, 943 S.W.2d
HAB54\R&R\GARNER-258.PRLREV:2 14

469, 472 (Tex.Crim.App. 1997).

V.

STREET TIME

The Texas Court of Criminal Appeals denied petitioner’s claims without written order, an

adjudication on the merits. Consequently, this Court cannot grant habeas corpus relief unless the

state court’s determination conflicts with clearly established federal law as determined by the

Supreme Court or the state court’s decision was based on an unreasonable determination of the

facts in light of the evidence. Petitioner has not, in any way, attempted to show or shown the state

court’s decision was based on an unreasonable determination of the facts in light of the evidence. 

A state prisoner does not have a federal constitutional right to obtain release from

confinement prior to the expiration of his sentence. See Board of Pardons v. Allen, 482 U.S. 369,

378 n. 10, 107 S.Ct. 2415, 2421 n. 10, 96 L.Ed.2d 303 (1987); Orellana v. Kyle, 65 F.3d 29, 31-32

(5th Cir. 1995), cert. denied, 116 S.Ct. 736 (1996). If granted early release, a Texas parole violator

has no constitutional right, as a matter of federal due process, to credit on his sentence for time

spent on parole. See Hallmark v. Johnson, 118 F.3d 1073, 1079-80 (5 Cir.1997); Newby v.

Johnson, 81 F.3d 567, 569 (5 Cir.1996); Hamill v. Wright, 870 F.2d 1032, 1036-37 (5 Cir.1989);

Starnes v. Cornett, 464 F.2d 524, 524 (5 Cir.1972). Consequently, petitioner has no state or

corresponding federal constitutional right to street time credit. See Thompson v. Cockrell, 263

F.3d 423, 426 (5 Cir.2001); Morrison v. Johnson, 106 F.3d 127, 129 (5 Cir.1997) (a prisoner

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

Under Texas statutory law, however, certain offenders who have their parole or mandatory

supervision revoked on or after September 1, 2001, may be entitled to credit for the portion of time
9

Texas law in effect when petitioner was released to mandatory supervision in 1990 provided:

When a person's parole, mandatory supervision, or conditional pardon is revoked, that person may be required

to serve the portion remaining of the sentence on which he was released, such portion remaining to be calculated

without credit for the time from the date of his release to the date of revocation.

Tex. Crim. Proc. art. 42.18, § 14(a) (1990).

Section 508.283, effective September 1, 2001, provides, in relevant part:

(c) If the parole, mandatory supervision or conditional pardon of a person other than a person described by Section

508.149(a) is revoked, the person may be required to serve the remaining portion of the sentence on which the

person was released. For a person who on the date of issuance of a warrant or summons initiating the revocation

process is subject to a sentence the remaining portion of which is greater than the amount of time from the date

of the person's release to the date of issuance of the warrant or summons, the remaining portion is to be served

without credit for the time from the date of the person's release to the date of revocation. For a person who on the

date of issuance of the warrant of summons is subject to a sentence the remaining portion of which is less than the

amount of time from the date of the persons release to the date of issuance of the warrant or summons, the

remaining portion is to be served without credit for an amount of time equal to the remaining portion of the

sentence on the date of issuance of the warrant or citation.

Tex. Gov't Code Ann § 508.283(c) (emphasis added).

HAB54\R&R\GARNER-258.PRLREV:2 15

they spent on parole or mandatory supervision.9 See Ex parte Spann, 132 S.W.3d 390, 392

(Tex.Crim.App. 2004).

Section 508.283 applies to petitioner’s case given that his parole revocation occurred after

September 1, 2001, however, petitioner does not qualify for relief under section 508.283(c). The

starting point is the version of Section 508.283(c) in effect when the inmate's parole or mandatory

supervision is revoked. Ex parte Noyola, 215 S.W.3d 862, 867 (Tex.Crim.App. 2007); see also

Ex parte Foster, 2007 WL 1347832 (Tex.Crim.App. May 9, 2007). By incorporating section

508.149(a) by reference, section 508.283(c) invokes the version of section 508.149(a) in effect

when the inmate's parole or mandatory supervision is revoked. Here, under the version of section

508.149(a) that was in effect when petitioner’s parole was revoked on July 14, 2004, petitioner,

due to his conviction for sexual assault, was serving a sentence for an offense listed in section

508.149(a)(6) when his parole was revoked. Petitioner, therefore, did not meet the first

requirement entitling him to time credit under Section 508.283(c) because he was a person
HAB54\R&R\GARNER-258.PRLREV:2 16

described by Section 508.149(a) when his release was revoked. As a result, petitioner was not

entitled to street-time credit for the period of time he spent on parole from September 1, 2001 to

July 14, 2004. Nor is petitioner entitled to street-time credit from the date of petitioner’s

conditional release, March 27, 1990, through August 31, 2001, the date prior to the effective date

of the statute allowing for conditional credit for street time, as the new version of the statute was

not applied retroactively. See Ex parte Spann, 132 S.W.3d 390, 394 n.7 (Tex.Crim.App. 2004); Ex

parte Keller, 173 S.W.3d 492, 495 n. 8 (Tex.Crim.App. 2005). 

The Texas Court of Criminal Appeals, on state habeas review, made the legal conclusion

by its denial without written order that petitioner is not entitled to time credit for the time he was

released on parole or mandatory supervision. With regard to legal issues adjudicated on the merits

in state court proceedings, federal habeas corpus relief should not be granted unless the state

court’s adjudication “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.” 28 U.S.C. § 2254(d)(1). “The state court’s application of the law must be ‘unreasonable’

in addition to being merely ‘incorrect.’” Caldwell v. Johnson, 226 F.3d 367, 372 (5th Cir. 2000). 

Petitioner has failed to show the state trial court’s decision was unreasonable and is not entitled to

federal habeas relief. Petitioner’s claim should be DENIED.

V.

RECOMMENDATION

It is the RECOMMENDATION of the United States Magistrate Judge to the United States

District Judge that the Petition for a Writ of Habeas Corpus by a Person in State Custody filed by

petitioner PHIL EDWIN GARNER be DENIED.
HAB54\R&R\GARNER-258.PRLREV:2 17

VI.

INSTRUCTIONS FOR SERVICE

The United States District Clerk is directed to send a copy of this Report and

Recommendation to each party by the most efficient means available.

IT IS SO RECOMMENDED. 

ENTERED this 8th day of August 2008.

_____________________________________

CLINTON E. AVERITTE

UNITED STATES MAGISTRATE JUDGE

* NOTICE OF RIGHT TO OBJECT *

Any party may object to these proposed findings, conclusions and recommendation. In the

event a party wishes to object, they are hereby NOTIFIED that the deadline for filing objections is

eleven (11) days from the date of filing as indicated by the “entered” date directly above the

signature line. Service is complete upon mailing, Fed. R. Civ. P. 5(b)(2)(B), or transmission by

electronic means, Fed. R. Civ. P. 5(b)(2)(D). When service is made by mail or electronic means,

three (3) days are added after the prescribed period. Fed. R. Civ. P. 6(e). Therefore, any

objections must be filed on or before the fourteenth (14th) day after this recommendation is

filed as indicated by the “entered” date. See 28 U.S.C. § 636(b); Fed. R. Civ. P. 72(b); R. 4(a)(1)

of Miscellaneous Order No. 6, as authorized by Local Rule 3.1, Local Rules of the United States

District Courts for the Northern District of Texas. 

Any such objections shall be made in a written pleading entitled “Objections to the Report

and Recommendation.” Objecting parties shall file the written objections with the United States

District Clerk and serve a copy of such objections on all other parties. A party’s failure to timely

file written objections to the proposed findings, conclusions, and recommendation contained in this

report shall bar an aggrieved party, except upon grounds of plain error, from attacking on appeal

the unobjected-to proposed factual findings, legal conclusions, and recommendation set forth by

the Magistrate Judge in this report and accepted by the district court. See Douglass v. United

Services Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996); Rodriguez v. Bowen, 857 F.2d 275,

276-77 (5th Cir. 1988).