Opinion
No. 3-01-CV-1435-D
May 9, 2002
FINDINGS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
This case has been referred to the United States magistrate judge pursuant to 28 U.S.C. § 636(b) and a standing order of reference from the district court. The findings and recommendation of the magistrate judge are as follow:
I.
This is a habeas case brought under 28 U.S.C. § 2254. Petitioner Connell Wickware, an inmate in the TDCJ-ID, was convicted of a disciplinary infraction for refusing to participate in a prison-mandated substance abuse treatment program. As punishment, he lost recreation and commissary privileges for 20 days and 180 days of good time credit. Petitioner challenged his disciplinary conviction and punishment through the prison grievance process. His grievance was denied. Petitioner now seeks federal habeas relief pursuant to 28 U.S.C. § 2254.
Respondent acknowledges that petitioner has exhausted his state remedies because state post-conviction relief is not available to challenge the outcome of a prison disciplinary proceeding. See Ex parte Brager, 704 S.W.2d 46 (Tex.Crim.App. 1986).
II.
Petitioner raises one broad issue in four grounds for relief. Succinctly stated, he contends that state prison officials have no authority to require him to attend a substance abuse treatment program. Respondent counters that the TDCJ-ID has broad discretionary authority to implement procedures for requiring inmates to participate in such programs. See TEX. GOVT CODE ANN. § 501.0931 (Vernon Supp. 2001). Under prison regulations, a refusal or failure to attend a required treatment program, without a legitimate reason, constitutes a disciplinary infraction. See TCDJ-ID DIS. R. PROC. FOR OFFENDERS § 25.2 (Jan. 1998). Consequently, respondent maintains that there is no basis for federal habeas relief.By order dated March 8, 2002, the Court set this case for an evidentiary hearing and appointed counsel to represent petitioner. However, unbeknownst to the Court, petitioner had been released to mandatory supervision one month earlier. On April 25, 2002, respondent filed a motion to dismiss. Respondent argues that petitioner's subsequent release moots the only viable claim raised in his habeas petition — the loss of good time credits. The motion has been briefed by the parties and is ripe for determination.
III.
A collateral attack on a conviction generally is not rendered moot by the fact that the petitioner has served his sentence. Carafas v. LaValle, 391 U.S. 234, 237-38, 88 S.Ct. 1556, 1559-60, 20 L.Ed.2d 554 (1968). However, this rule does not apply when the petitioner does not attack the validity of his conviction and merely contests the imposition and duration of his confinement. Lane v. Williams 455 U.S. 624, 625-28, 102 S.Ct. 1323, 1324-25, 71 L.Ed.2d 508 (1982); Aaron v. Pepperas, 790 F.2d 1360, 1362 (9th Cir. 1986).
Petitioner does not attack the validity of his conviction. Instead, he challenges the loss of good time credits for failing to participate in a prison-mandated substance abuse treatment program. A prisoner has a protected liberty interest in the loss of accrued good time only if he is eligible for release to mandatory supervision. See Malchi v. Thaler, 211 F.3d 953, 957-58 (5th Cir. 2000) Under Texas law, "[g]ood conduct time applies only to eligibility for parole or mandatory supervision . . . and does not otherwise affect an inmate's term." See TEX. GOV'T CODE ANN. § 498.003 (Vernon 1998). Petitioner was released to mandatory supervision on February 8, 2002. Thereafter, his good time has no further legal significance.
Petitioner was arrested on a pre-revocation warrant and returned to custody on February 23, 2002. (Resp. Mot., Exh. B). However, this does not salvage his claim. Even if the Court restores his good time credits, those credits would be forfeited if his mandatory supervision is revoked. See TEX. REV. CIV. STAT. ANN. art. 6181-1 (Vernon 1971), now Tax. GOV'T CODE ANN. § 498.004(b) (Vernon 1998) (providing for automatic forfeiture of previously earned good time credits "[u]pon the revocation of parole or mandatory supervision"). See also Ex parte Henderson, 045 S.W.2d 469, 472 (Tex.Crim.App. 1983) (good time credit not a right, but a privilege which may be forfeited). If petitioner is not revoked and returned to mandatory supervision, his good conduct time will not affect the expiration of his sentence. See TEX. GOV'T CODE ANN. § 498.003.
Petitioner offers two reasons why this case should not be dismissed. First, he contends that his request for injunctive relief presents a live "case or controversy." However, the Fifth Circuit has held that such relief is not available in a section 2254 proceeding. See Cook v. Texas Dep't of Criminal Justice, 37 F.3d 166, 168-69 (5th Cir. 1994) (section 1983 is appropriate legal vehicle to attack unconstitutional parole procedures or conditions of confinement). Second, petitioner maintains that a resolution of his underlying constitutional claim is necessary before he can bring a civil rights action under 42 U.S.C. § 1983. This may or may not be true. Regardless, petitioner's inability to bring a civil suit for damages as a result of the loss of good time credits is not a sufficient collateral consequence to prevent his claim from becoming moot. See Spencer v. Kemma, 523 U.S. 1, 7-8, 118 S.Ct. 978, 983, 140 L.Ed.2d 43 (1998) (inability to bring civil suit for wrongful parole revocation insufficient to meet Article III "injury-in-fact" requirement).
Ordinarily, the Court would liberally construe petitioner's prose complaint and treat his claim as a request for injunctive relief under 42 U.S.C. § 1983. However, petitioner has filed a separate civil rights action based on the same set of facts. Wickware v. Cockrell, No. 3-02-CV-0922-R (N.D. Tex., filed May 2, 2002). That case is currently pending before another judge in this district.
RECOMMENDATION
Respondent's motion to dismiss should be granted. Petitioner's application for writ of habeas corpus should be dismissed as moot.
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(g) The institutional division shall adopt rules of conduct for inmates participating in the program.
(h) If the institutional division determines that an inmate is not complying with the rules of the program, the institutional division may end the inmate's participation in the program and transfer the inmate out of the program.
TEX. GOVT CODE ANN. § 501.0931 (Vernon Supp. 2001).