Hallmark v. Johnson , 118 F.3d 1073 ( 1997 )

UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 95-20752
JOHN ALEX HALLMARK,
Petitioner-Appellant,
VERSUS
GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee.
No. 95-20869
TERRENCE R. SPELLMON,
Petitioner-Appellant,
VERSUS
GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee.
No. 95-21050
WALTER JOSEPH THIBODEAUX,
Petitioner-Appellant,
VERSUS
GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee.
No. 96-20115
KENNETH GREGORY THOMPSON, JR.,
Petitioner-Appellant,
VERSUS
GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee.
No. 96-20587
RODNEY J. GIBSON,
Petitioner-Appellant,
VERSUS
GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee.
No. 96-20901
LUCRECIA LYNN MONROE, also known as Lucretia Lynn Monroe,
Petitioner-Appellant,
VERSUS
GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee.
Appeals from the United States District Court
For the Southern District of Texas
--------------------------------------------------------------
No. 95-50531
DANNY LEON LUCAS,
Plaintiff-Appellant,
VERSUS
WAYNE SCOTT, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, INSTITUTIONAL DIVISION; CHARLES VANCE, JR.,
Chairman of the Texas Board of Criminal Justice,
Defendants-Appellees.
No. 96-50140
RUBEN A. RODRIGUEZ,
Petitioner-Appellant,
VERSUS
GARY L. JOHNSON, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, INSTITUTIONAL DIVISION,
Respondent-Appellee.
Appeals from the United States District Court
For the Western District of Texas
July 25, 1997
Before JOLLY, JONES, and PARKER, Circuit Judges.
PARKER, Circuit Judge:
In this consolidated appeal, the appellants present a common
issue: whether the Texas Board of Criminal Justice’s 1993 directive
eliminating the Director of Pardons and Paroles’ discretion to
restore good time credits previously forfeited for disciplinary
violations constituted a violation of the Ex Post Facto Clause when
applied to prisoners with forfeited good time credits at the time
of the directive. Finding no violation of the Constitution’s ex
post facto prohibition, we affirm the various district courts on
this issue. Four appellants also present individual claims.
Finding all of these to be without merit, we affirm the district
courts on these claims as well.
I. FACTUAL AND PROCEDURAL HISTORY
Beginning in 1977, Texas state law vested discretion in the
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Director of Pardons and Paroles (“Director”) to forfeit good time
credits for prison rule violations and also gave the Director the
discretion to restore such forfeited good time credits.1 The Texas
Legislature amended the statute in 1987, adding the following
provision that allowed the Texas Board of Criminal Justice (“TBCJ”)
to adjust its policy on restoration of good time credits in
relation to prison overcrowding.
At least annually, the Texas Board [of Criminal Justice] shall
review the department’s rules and policies relating to
restoration of good conduct time that has been forfeited and
in awarding additional good conduct time retroactively to
inmates who have been reclassified. The board shall consider
in its review whether the inmate overcrowding in the
department has decreased and whether it is necessary for
purposes of deceasing the overcrowding to restore good conduct
time or award additional good conduct time retroactively to
inmates who have been reclassified. If the board determines
that overcrowding has decreased and it is not necessary to
restore good conduct time or award additional good conduct
time, it shall direct the department to discontinue those
practices.
Tex. Civ. Stat. Ann. art. 6181-1 § 4 (West 1988). Thus, if the
TBCJ determined that there was a decrease in overcrowding, it could
direct the Texas Department of Criminal Justice to discontinue the
restoration of good time credits.
In 1993, the TBCJ issued a “Notice to Inmate Population” dated
1
The statute read as follows.
Good conduct time is a privilege and not a right. Consequently, if
during the actual term of imprisonment in the department, an inmate
commits an offense or violates a rule of the department, all or any part
of his accrued good conduct time may be forfeited by the director. The
director may, however, in his discretion, restore good conduct time
forfeited under such circumstances subject to rules and policies to be
promulgated by the department.
Tex. Civ. Stat. Ann. art. 6181-1 § 4 (West 1979).
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November 12, 1993 (“the 1993 directive”) which stated the
following.
Effective November 20, 1993, the Texas Department of Criminal
Justice--Institutional Division will discontinue the
restoration of good conduct time forfeited as a result of
disciplinary violations. This change in policy applies to
good conduct time that is currently forfeited or that is
forfeited in the future due to disciplinary rule violations.
This means that any lost good time that was not restored as of
November 20 will be permanently forfeited.
The directive was enforced as announced.
The appellants appeal to this court following denials of their
habeas petitions by the district courts. The appellants argue that
the change in policy which eliminated the Director’s discretion to
restore their forfeited good time credits violates the
Constitution’s ex post facto prohibition. Various individual
claims are also asserted.
DISCUSSION
A. Certificates of Appealability
The Antiterrorism and Effective Death Penalty Act of 1996
(“AEDPA”), Pub. L. 104-132, 110 Stat. 1214, amended 28 U.S.C. §
2253 to require a certificate of appealability (“COA”) before an
appeal may proceed in a § 2255 or a § 2254 action. Following the
Supreme Court’s decision in Lindh v. Murphy, -- U.S. --, -- S. Ct.
--, -- L. Ed. 2d --, 1997 WL 338568 (June 23, 1997), we held that
§ 2254 petitioners are subject to the AEDPA’s COA requirement only
when a § 2254 petition is filed in the district court after the
AEDPA’s effective date of April 24, 1996. United States v. Carter,
-- F.3d --, 1997 WL 374754, *4 n.1 (5th Cir. July 8, 1997). As an
initial matter, we must address whether the various appellants in
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this case have conformed to any applicable COA requirements. For
§ 2254 petitioners not subject to the AEDPA’s new COA requirement,
its predecessor, the certificate of probable cause (“CPC”), remains
in effect as a prerequisite to our jurisdiction. See, e.g.,
Sterling v. Scott, 57 F.3d 451, 453 (5th Cir. 1995).
We must examine the various appellants’ cases’ chronologies to
determine if an appellant requires a COA or a CPC. Then, we must
ascertain if each appellant has met the applicable prerequisites
for our jurisdiction.
1. John Hallmark (“Hallmark”)
The district court’s final judgment denying Hallmark’s § 2254
motion was entered on August 21, 1995 and Hallmark filed his notice
of appeal on September 13, 1995. Thus, the AEDPA’s new COA
requirement does not apply to Hallmark and its predecessor, the
CPC, remains in effect for his appeal. The district court denied
Hallmark’s application for a CPC in November 1995. We construe
Hallmark’s notice of appeal as a request for the issuance of a CPC.
See Fed. R. App. P. 22(b) (1995).
Unless we grant a CPC, we have no jurisdiction to hear an
appeal from a denial of habeas relief. Sterling v. Scott, 57 F.3d
451, 453 (5th Cir. 1995). To obtain a CPC, Hallmark must make a
substantial showing that he has been denied a federal right.
Barefoot v. Estelle, 463 U.S. 880, 893, 103 S. Ct. 3383, 3394-95,
77 L. Ed. 2d 1090 (1983). This standard does not require Hallmark
to demonstrate the he would prevail on the merits but it does
require him to “demonstrate that the issues are debatable among
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jurists of reason; that a court could resolve the issues [in a
different manner]; or that questions are adequate to deserve
encouragement to proceed further.” Crank v. Collins, 19 F.3d 172,
174 (5th Cir. 1994) (quoting Barefoot, 463 U.S. at 893 n.4 and
omitting internal quotations and citations)). Applying this
standard, we grant Hallmark’s application for a CPC. See Newby v.
Johnson, 81 F.3d 567, 569 n.1 (5th Cir. 1996) (holding that
challenge to credit issued for time served while on parole arises
out of process issued by state court and is thus properly addressed
under § 2254).
2. Terrence Spellmon (“Spellmon”)
The district court entered final judgment dismissing
Spellmon’s habeas petition on September 14, 1995. Spellmon filed
a notice of appeal on October 18, 1995. The district court denied
a CPC and this court subsequently granted Spellmon a CPC on April
1, 1996.
3. Walter Joseph Thibodeaux (“Thibodeaux”)
The district court entered final judgment dismissing
Thibodeaux’s habeas petition on November 11, 1995. Thibodeaux
filed his notice of appeal on December 6, 1995. The district court
denied Thibodeaux a CPC and this court subsequently granted
Thibodeaux a COA on the ex post facto issue. Following Lindh’s
holding that the AEDPA’s amendments to the chapter of Title 28
containing the COA requirement are not retroactively effective, we
now consider Thibodeaux’s appeal under the predecessor CPC standard
which did not involve the specification or limitation of issues
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upon which it was granted. See Muniz v. Johnson, 114 F.3d 43, 45
(5th Cir. 1997). Having already considered at least one of
Thibodeaux’s issues to merit a COA, we grant a CPC for his appeal
since we have previously explained that the showing required for
both the COA and the CPC is the same. See United States v.
Youngblood, -- F.3d --, 1997 WL 355356 (5th Cir. June 27, 1997);
Muniz, 114 F.3d at 45.
4. Kenneth Gregory Thompson, Jr. (“Thompson”)
After dismissing Thompson’s habeas petition, the district
court denied Thompson a CPC on April 4, 1996. Thompson was
subsequently granted a COA on the ex post facto issue. We now
grant a CPC for his appeal.
5. Rodney J. Gibson (“Gibson”)
Gibson filed his habeas petition in the district court on
August 9, 1995. The district court entered final judgment
dismissing Gibson’s habeas petition on June 13, 1996. Gibson was
granted a COA on his ex post facto issue. We now grant a CPC for
his appeal.
6. Lucrecia Lynn Monroe (“Monroe”)
Monroe filed her § 2254 petition in the district court on June
19, 1995. The district court dismissed her habeas petition and
subsequently denied Monroe a CPC. Monroe was granted a COA on her
ex post facto issue. We now grant a CPC for her appeal.
7. Danny Leon Lucas (“Lucas”)
The district court entered final judgment dismissing Lucas’s
habeas petition and civil rights claims on June 26, 1995. Lucas
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filed a notice of appeal on July 10, 1995. Given such a
chronology, the AEDPA’s COA requirement does not apply and the
former CPC requirement remains in effect for Lucas. The district
court neither granted nor denied Lucas a CPC. Because a CPC is a
prerequisite to our jurisdiction in a § 2254 action, we must
dismiss this appeal for lack of jurisdiction and remand for the
district court’s consideration of a CPC. See Fed. R. App. P. 22(b)
(1995); Crank v. Collins, 19 F.3d 172, 174 (5th Cir. 1994).
8. Ruben Rodriguez (“Rodriguez”)
After the district court denied habeas relief on January 31,
1996, Rodriguez filed a timely notice of appeal and the district
court granted a CPC.
B. The Ex Post Facto Claim
The appellants allege that the 1993 directive removing the
director’s discretion to restore forfeited good time is a violation
of the Constitution’s ex post facto prohibition in that it
eliminated the possibility of their forfeited good time credits
being restored. See U.S. Const. art. I, § 10 (“No state
shall...pass any...ex post facto Law”). They argue that the 1993
directive increases their punishment burden after sentencing
because under the old scheme, it was possible that they would have
obtained an earlier release than under the new scheme. The state
offers that good time credits only affect eligibility for parole
and mandatory supervision and because good time credits do not
affect the length of the sentence as imposed and the Director has
always had the discretion not to restore forfeited good time
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credits, the directive did not create a more burdensome punishment.
The imposition of a punishment more severe than that assigned
by law when the criminal act occurred is a violation of the
Constitution’s ex post facto prohibition. Weaver v. Graham, 450
U.S. 24, 30, 101 S. Ct. 960, 964, 67 L. Ed. 2d 17 (1981). In order
to amount to an ex post facto violation, a change must be both
retroactive and to a prisoner’s detriment. “[T]wo critical
elements must be present for a criminal or penal law to be ex post
facto: it must be retrospective, that is, it must apply to events
occurring before its enactment, and it must disadvantage the
offender affected by it.” Id. at 29.
The central issue of our ex post facto inquiry is whether the
1993 directive effectively increased or made more burdensome the
appellants’ punishment.2 See Lynce v. Mathis, -- U.S. --, 117 S.
Ct. 891, 37 L. Ed. 2d 63 (1997) (question presented was whether
consequences disadvantaged petitioner by increasing his
punishment). We must decide if the change disadvantaged the
prisoners affected by it to a degree of ex post facto significance.
Cal. Dep’t of Corrections v. Morales, -- U.S. --, --, 115 S. Ct
1597, 1603, 131 L. Ed. 2d 588 (1995). “In evaluating the
2
We note that the Supreme Court held in Lindh v. Murphy, -- U.S.
--, -- S. Ct. --, -- L. Ed. 2d --, 1997 WL 338668 (June 23, 1997), that the
review provisions for habeas cases set out by the AEDPA in 28 U.S.C. §
2254(d) are not to be applied retroactively to cases pending at the time
of the AEDPA’s effective date. Lindh overruled our earlier pronouncements
in this area, namely Drinkard v. Johnson, 97 F.3d 751 (5th Cir. 1996),
cert. denied, -- U.S. --, 117 S. Ct. 1114, 137 L. Ed. 2d 315 (1997), and
subsequent decisions regarding the application of § 2254(d). Accordingly,
our review is conducted without reference to the provisions set out in
amended § 2254(d).
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constitutionality...we must determine whether it produces a
sufficient risk of increasing the measure of punishment attached to
the covered crimes.” Id.
In Weaver v. Graham, the Supreme Court held that a statute
unilaterally reducing the amount of good time credits that a
prisoner could earn to reduce his sentence was barred by the ex
post facto prohibition. In Lynce v. Mathis, the Court held that
the retroactive cancellation of early release credits already
awarded to state prisoners increased the prisoners’ punishment so
as to constitute an ex post facto violation. 117 S. Ct. 891. This
case is distinct from Weaver and Lynce in that it does not present
a retroactive denial of an opportunity to reduce a prison sentence,
nor does it involve the cancellation of good time credits already
earned by prisoners. The 1993 directive did not retract already
accumulated good time credits and the appellants in this case were
not denied an opportunity to earn good time credits. In fact, they
have retained the opportunity to earn just as many good time
credits as they could on the day that they committed their crimes.
The only change enacted by the 1993 directive was that upon loss of
good time credits as a result of disciplinary infractions, there
was no longer a possibility of those good time credits being
restored.
Although a “speculative, attenuated risk of affecting a
prisoner’s actual term of confinement” may exist, that fact does
not answer an ex post facto inquiry. Morales, 115 S. Ct at 1603.
The question of this constitutional transgression has long been “a
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matter of degree.” Id. (citation and quotations omitted). While
the Supreme Court has declined to articulate a dividing line for
identifying those changes that have a sufficient effect on
substantive crimes or punishments to fall within the ex post facto
prohibition, the Court has explained that “speculative,”
“attenuated” and “conjectural” effects are insufficient under any
threshold that it might establish for ex post facto violations.
Id. In Morales, the Court found that the California legislation at
issue created “only the most speculative and attenuated risk of
increasing the measure of punishment attached to the covered
crimes,” Id. at 1605, and thus presented no ex post facto
violation. See also Lynce, 117 S. Ct. at 898 n. 16 (“Simply put,
we rejected the inmate’s claim in Morales, because it could not be
said with any certainty that the amended statutory scheme was more
‘onerous’ than at the time of the crime.”).
We regard the Texas legislation at issue as also presenting
only a speculative possibility of increasing the appellants’ terms
of confinement. In contrast to Weaver, the appellants were, as
already stated, not deprived of the opportunity to obtain an early
release. The appellants were deprived only of the opportunity to
have forfeited good time credits restored and only if (1) they
committed a prison violation, (2) discretion was exercised to
forfeit some of their good time credits because of the rule
infraction, and (3) they would have, under the earlier
discretionary scheme, had those good time credits restored. In
other words, while the opportunity to earn early release was
13
constricted to some degree, it was only if there was a disciplinary
problem, a discretionary exercise of forfeiture was exercised, and
the prisoner would have had the good time credits restored under
the previous discretionary restoration scheme. Such is too
attenuated and speculative to constitute an ex post facto
violation. Cf. Hamm v. Latessa, 72 F.3d 947, 948 (1st Cir. 1995)
(finding risk of increased punishment too speculative where earlier
release depended on an unlikely series of events and it was still
possible that prisoner would have had a later release under old
scheme), cert. denied, -- U.S. --, 117 S. Ct. 154, 136 L. Ed. 2d 99(1996). The fact that there was always a possibility to lose
earned good time credits as a result of a disciplinary violation
and never have them restored makes it clear that the 1993 directive
did not increase the appellants’ punishment. As the California
Supreme Court explained, “[t]here is a critical difference between
a diminution of the ordinary rewards for satisfactory performance
of a prison sentence---the issue in Weaver--and an increase in
sanctions for future misbehavior in prison--which is at issue
here.” In re Ramirez, 705 P.2d 897, 901 (Cal. 1985). The 1993
directive did not substantially alter the consequences attached to
a crime already completed, and thus it did not change the quantum
of punishment such that it is unconstitutional. Cf. Weaver, 450
U.S. at 33.
Finally, we note that a critical element of an ex post facto
violation is an absence of forewarning, that is, that the change is
unexpected. As the Supreme Court has explained, “critical to
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relief under the ex post facto Clause is not an individual’s right
to less punishment, but the lack of fair notice and governmental
restraint when the legislature increases punishment beyond that
what was perceived when the crime was consummated.” Weaver, 450
U.S. at 30 (emphasis added). The Director of Pardons and Parole
has had the power since 1977 to decline to restore, at his
discretion, good time credits forfeited for prison violations, see
Tex. Civ. Stat. Ann. art. 6181-1 § 4 (West 1979), and so there was
indeed fair warning of the possibility of forfeiture of good time
credits and the consequences thereof.
We find that no violation of the Ex Post Facto clause
occurred.
C. Individual Claims
1. Deprivation of Liberty Interest without Due Process Claim
Thibodeaux,3 Monroe and Rodriguez argue that prisoners have a
protected liberty interest in the restoration of good time credits
and that they were deprived of their protected liberty interest
without due process, as required by the Fourteenth Amendment’s Due
Process Clause.
This argument fails as the appellants lack the liberty
interest that they assert. Since 1977, Texas law has provided that
3
Thibodeaux also presents a contention that he has suffered
retaliation in the parole process as a result of his status as a recognized
“writ-writer.” He did not present this claim to the district court, nor
to the state habeas court, and thus we cannot consider it for the first
time in this court. See Yohey v. Collins, 985 F.2d 222, 226 (5th Cir.
1993); Hulsey v. Texas, 929 F.2d 168, 172 (5th Cir. 1991). We have
considered only his contentions related to the 1993 directive as they were
the only issues before the district court.
15
good conduct time credits are “a privilege and not a right.” Tex.
Civ. Stat. art. 6181-1 § 4 (West 1988). Since 1977 and up until
the 1993 directive, Texas prison authorities possessed the
discretion to restore or not to restore forfeited good conduct time
credits. Tex. Civ. Stat. art. 6181-1§ 4 (West 1988) (“The director
may, however, in his discretion, restore good conduct time
forfeited under such circumstances subject to rules and policies to
be promulgated by the department.”).
Because the state statutes have, since at least 1977, vested
complete discretion with the state correctional authorities on the
issue of restoration of good time credits forfeited for
disciplinary infractions, there is no protected liberty interest in
the restoration of good time credits and this argument fails. See
Greenholtz v. Inmates of Neb. Penal and Correctional Complex, 442
U.S. 1, 11, 99 S. Ct. 2100, 2105, 60 L. Ed. 2d 668 (1979) (a
statute which “provides no more than a mere hope that the benefit
will be obtained...is not protected by due process”); Hamill v.
Wright, 870 F.2d 1032, 1036-37 (5th Cir. 1989) (no liberty interest
in award of good conduct time credits where state authorities
possessed complete discretion concerning the award of such
credits); Ex parte Montgomery, 894 S.W.2d 324, 328-29 (Tex. Crim.
App. 1995) (policy of discretionary restoration of forfeited good
time credits did not create a protected liberty interest); see also
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) (“statutes or regulations
that provide that a parole board ‘may’ release an inmate on parole
16
do not give rise to a protected liberty interest”); Allison v.
Kyle, 66 F.3d 71, 74 (5th Cir. 1995) (Texas parole statutes do not
create a protected liberty interest due to discretionary nature).
2. Spellmon’s Due Process Claims
Spellmon alleges that he was denied due process during a
prison disciplinary hearing which resulted in the forfeiture of
good time credits. Specifically, he alleges that he was not given
adequate notice of the charges and was denied the right to cross-
examine a witness.
Under Wolff v. McDonnell, 418 U.S. 539, 564-65, 94 S. Ct.
2963, 41 L. Ed. 2d 935 (1974), disciplinary action resulting in an
inmate’s loss of good time credit must be accompanied by certain
procedural safeguards, including written notice of the charges at
least 24 hours before a hearing regarding disciplinary sanctions.
See Murphy v. Collins, 26 F.3d 541, 543 & n.5 (5th Cir. 1994). The
disciplinary charge against Spellmon involved a conspiracy to
create a work stoppage. Spellmon contends that he should have been
notified of his alleged co-conspirators’ names because without such
information he could not properly prepare a defense. However, he
does not explain how the lack of that piece of information was
prejudicial to the preparation of his defense and thus his argument
on this issue fails. See Simpson v. Ortiz, 995 F.2d 606, 609 (5th
Cir. 1993) (a prerequisite to issuance of a writ of habeas corpus
is showing of prejudice as a result of alleged constitutional
violation).
Spellmon also claims a due process problem in being prevented
17
from cross-examining the warden at the hearing with a particular
question. The transcript of the hearing is not in the record
before us, but even if it revealed that the warden was in fact not
allowed to answer the question posed by Spellmon, Spellmon has not
demonstrated that he was denied a procedurally adequate hearing.
In Wolff, the Supreme Court held that confrontation and cross-
examination of witnesses is not required in prison disciplinary
hearings. 418 U.S. at 567-68.
Spellmon also contends that he was denied due process by the
Texas state courts’ policy against considering challenges to prison
disciplinary proceedings in state habeas proceedings. Insofar as
Spellmon raises a due process challenge to the state habeas
proceedings, his claim fails because infirmities in state habeas
proceedings do not constitute grounds for relief in federal court.
See Duff-Smith v. Collins, 973 F.2d 1175, 1182 (5th Cir. 1992).
III. CONCLUSION
For the foregoing reasons, we AFFIRM the various district
courts as to the ex post facto claim. We have reviewed all of the
appellants’ individual contentions, and we AFFIRM the district
courts as to those claims as well. In the case of Lucas, we
DISMISS his appeal for lack of jurisdiction and REMAND for the
district court’s consideration of his CPC application.
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