1

 Even if petitioner failed to present his claim to the Texas Court of Criminal Appeals, "[a]n 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." 28 U.S.C. § 2254(b)(2).

IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

ROBERT LEON WILSON §

§

Petitioner, §

§

VS. §

§ NO. 3-06-CV-0130-N

DOUGLAS DRETKE, Director §

Texas Department of Criminal Justice, §

Correctional Institutions Division §

§

Respondent. §

FINDINGS AND RECOMMENDATION OF THE

UNITED STATES MAGISTRATE JUDGE

Petitioner Robert Leon Wilson, 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 denied.

I.

Petitioner was twice paroled after serving part of a 15-year sentence for burglary of a

habitation. Both times his parole was revoked and petitioner was returned to custody without credit

on his sentence for the 10 years he spent on parole. It is not clear whether petitioner challenged the

denial of sentence credits in an application for state post-conviction relief. Instead, he appears to

raise this claim for the first time in a federal writ of habeas corpus.1

II.

In his sole ground for relief, petitioner contends that he is entitled to credit on his sentence

for the time he was on parole.

 

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 2

 The Fifth Circuit has held that the Texas mandatory supervision statute creates an expectancy of early release

when the calendar time of eligible inmates, combined with good time credits, equals 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, 94 S.Ct. 2963, 2975, 41

L.Ed.2d 935 (1974). Even if petitioner were eligible for release to mandatory supervision instead of parole, no court has

ever held that the denial of sentence credit for time spent on release implicates a federal constitutional right. See Greer

v. Dretke, No. 3-03-CV-2745-H, 2004 WL 287377 at *1 n. 2 (N.D. Tex. Jan. 29, 2004).

A.

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

expiration of his sentence. See Greenholtz v. Inmates of Nebraska Penal and Correctional Complex,

442 U.S. 1, 7, 99 S.Ct. 2100, 2104, 60 L.Ed.2d 668 (1979); Orellana v. Kyle, 65 F.3d 29, 31-32 (5th

Cir. 1995), cert. denied, 116 S.Ct. 736 (1996) (no constitutional right to early release on parole).2

This includes credit for "street time" while out on parole. See Newby v. Johnson, 81 F.3d 567, 569

(5th Cir. 1996). However, a state may not apply the parole laws retroactively. See Weaver v.

Graham, 450 U.S. 24, 29, 101 S.Ct. 960, 964, 67 L.Ed.2d 17 (1981). The critical inquiry is whether

the law changes the legal consequences of an act completed before the effective date of the

legislation. Id., 101 S.Ct. at 965; Story v. Collins, 920 F.2d 1247, 1251 (5th Cir. 1991).

B.

Petitioner seeks credit on his sentence for the time he was on parole. The relevant statute

in effect at the time the underlying offense was committed provides, in relevant part:

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.CODE CRIM. PROC. ANN. art. 42.18, § 14(a) (Vernon 1990), now codified at TEX.GOV’T CODE

ANN. § 508.156(e) (Vernon Supp. 2004) (emphasis added). There is no evidence that this statute

has been applied retroactively to deprive petitioner of any right under state or federal law.

Consequently, petitioner is not entitled to federal habeas relief. See Greer v. Dretke, No. 3-03-CV-

 

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2745-H, 2004 WL 287377 at *1 (N.D. Tex. Jan. 29, 2004); Blair v. Dretke, No. 3-03-CV-1001-L,

2003 WL 22244647 at *1-2 (N.D. Tex. Sept. 18, 2003), rec. adopted, 2003 WL 22495767 (N.D.

Tex. Oct. 31, 2003).

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

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: March 20, 2006.

 

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