*1 * PER CURIAM: Morales, federal Alejandro HERNANDEZ, Gilberto D. 14368-179, the district court’s appeals Appellant Petitioner — petition
dismissal of his U.S.C. v. challenging prison disciplinary proceed- disciplinary hearing in which the offi- ing QUARTERMAN, Director, Nathaniel (DHO) Department cer determined that Morales had of Criminal Jus Division, tice, Institutions Correctional prison of a attempted sexual assault Resp ppellee. days good Morales lost 54 ondent—A counselor. time, penal- to other
conduct addition No. 07-10424. Morales contends that the evidence ties. Appeals, States United support was insufficient to decision of Fifth Circuit. the DHO. July that the Morales has shown by determining
court erred that there was support
“some evidence” the record to disciplinary
the DHO’s decision where that
decision was based on counselor’s writ report stating
ten that Morales blocked office, exposed
her exit from the himself to arousal,
her in a state of and refused her to leave the office.
orders See Hudson (5th 536-37 Cir. district court is
AFFIRMED.
* 47.5, the Pursuant to 5th Cir. R. court has the limited circumstances set forth 5th Cir. opinion determined that this should not be R. 47.5.4. published precedent except and is not under *2 claims, entitles him to relief
Hernandez under the Double Clause us, On the record before Constitution. claim, are not able to resolve this so we remand for the the eviden- requested that tiary hearing Hernandez and the district court denied. I. FACTS AND BACKGROUND aggravated Hernandez committed rob- bery County, on March 1986 in Hale 1, 1986, July pleaded guilty Texas. On he to im- eighteen and was sentenced (“sentence 1”). # prisonment While prison serving sentence # Hernandez Hernandez, Abilene, TX, pro D. Gilberto 2,May attempted committed murder on se. offense, For he that was sentenced Christian-Carnal, the At- Sallie Office of years imprison- ten on March 1989 to General, torney Litigation Postconviction ment, consecutively his sentence to run Div., Austin, TX, Respondent-Appellee. (“sentence 2”).1 robbery for aggravated credits, time Taking into account various begin-date calculated the of sen- Texas February # 1 1986. Hernan- tence as “day-for- dez therefore had calculated REAVLEY, WIENER, and Before February day” sentence-completion date SOUTHWICK, Judges. Circuit aggravated robbery for his convic- that tion. At the time he committed *
WIENER, Judge: Circuit however, robbery, pro- aggravated mandatory supervised release. Petitioner-Appellant Gilberto Hernan- vided for was therefore be was sentenced to two consecutive Hernandez dez prison and serve the re- imprisonment. He contends that released terms of mandatory on su- in the fi- mainder of his sentence legitimate expectation he had a Texas, once the total of his actual time pervision nality of his sentences equaled time good-conduct Nathaniel served and through Respondent-Appellee day.2 Texas day calculated Quarterman, by changing has frustrated occurred on December way it to calculate the claims this the method used This, be served. 1992.3 that his sentences would
* provision at the time that This force Pursuant to 5th Cir. R. the court 47.5, opinion of his crimes. should not be Hernandez committed both determined this except published under and is not 8(c) (Vernon forth in 5th Cir. the limited circumstances set 42.18 2. Tex Code Crim. P. 1985). R. 47.5.4. when, mandatory 1. A sentence is consecutive alia, began Although he Hernandez claims that person a crime while inter commits 2# on October to serve sentence incarcerated in the institutional division affect our conclu- the date we credit does not Department of Criminal Justice. the Texas 42.08(b) (Vernon date Hernandez ad- We shall use the P. sion. See Tex.Code Crim. Nevertheless, change court, a 1987 to Texas’s Before the district mandatory supervision that, laws made Hernan- claimed he had ineligible dez for release to su- developed legitimate expectation *3 pervision on sentence # 2.4 He was there- finality of his sentences because at all rele- required day fore to serve sentence # 2 for vant specified times Texas law once day. Texas claims that began Hernandez commenced, sentence it did not cease to to serve sentence #2 when he became operate. Sentence # 1 commenced on eligible mandatory supervision for on sen- 2, 1986, 2, February February 2004 is 1, i.e., 31,1992. tence # on December eighteen years, day day, for from that 2, commencement date. As for sentence # 1, 2003,5 On October 31 or November that, parties agree latest, at the Her- after Hernandez had served sentence # began nandez to serve it on October day day, for Texas released him on manda- 1993, because Texas used the date on tory supervision. parties Both agree that which a super- was for Hernandez served sentence # 2 day for vised release to calculate the commence- day, so this mandatory supervi- release on ment date of consecutive sentences. Sen- sion had to have been for sentence # 1. tence # 2 day day was therefore served His Mandatory Supervision Certificate of 31, 2003, very day October on which listed 2014 as its maximum supervision. released Hernandez to date, expiration which is the expiration date Hernandez would have had if he had Hernandez contends that because of been sentenced to a single twenty-eight- rule, operation Texas’s continuous he effec- year term or if Texas had tacked the re- tively served sentence # 1 concurrently mainder of sentence # mandatory-su- l’s with sentence # even though he was pervision term —which Texas claims was sentenced to consecutive sentences. Tex- 31, 1993, tolled from October until October disagrees, as contending that after it “con- 31, 2003—onto the end of sentence # 2. structively released” Hernandez on man- datory supervised release for sentence
On March while out on manda # 1—at the latest on October 1993— tory supervision, Hernandez committed 1 was in abeyance held while the crime of possession of a controlled Hernandez served sentence #2 day for substance and was sentenced to six months day. Texas, imprisonment. According to While he serving complete therefore had to a period the Texas of su- Board of Pardons and purported Paroles release for sentence # revoke his 1 that did release for sentence # 1. not end until twenty-eight years Hernandez is after he now scheduled for August release on was sentenced to eighteen years for the 2014.6 underlying crime. explains
vanees because it begin better operate timeline. lo until October correct, If Texas's date is it should have re- operate, date on which sentence # 1 ceased to mandatory supervised leased Hernandez to according at least to him. 31, 2002; release on December but it did not. twenty days 6.Texas added six months and 8(c) (Vernon Tex.Code Crim P. art 42.18 expiration the maximum date listed on Her- Mandatory Supervi- nandez’s Certificate of greater 5. This is than ten custody” from Decem- sion because he was ‘‘out for that 31, 2002, but, ber explained supra as we note period of time. 3, Hernandez claims that sentence # did not Hernan Texas courts denied to whether Hernandez is to equita- After entitled relief, he pro petitions dez filed two se for ble tolling. corpus May federal court on habeas “Equitable tolling appropriate in rare 2006, asserting his entitlement to release and exceptional circumstances”11 because Facto, basis of the Ex Post Double on the “one-year provision AEDPA’s limitations and Due Process
Jeopardy, Clauses. operate jurisdictional does not as a bar.” petitions, court consolidated these district government “actively When the misled request Hernandez’s declined ... the defendant about the ac- cause of evidentiary denied hearing, and an tion,” tolling equitable appropriate.13 Hernandez then relief. asked the arguendo that Assuming Hernandez either *4 COA, grant request a court to was knew or should have known the factual He timely denied. filed a motion with this predicate his claim of on the date that he COA, granted court for which we for the Certificate of Su- Mandatory received the jeopardy claim on 2008. double March listing expiration Release an date Appeals After the Texas Court of Criminal he also specificity— insists—with Forward,'7 appointed Ex Parte we decided affirmatively that he misled supplemental briefing counsel and ordered meaning about the of that 2014 date. Ac- argument. and oral Hernandez, cording to he did not learn that he been pur- had misled until Texas II. DISCUSSION ported super- to “revoke” his mandatory A. AEDPA’s Time Bar vised release. When we deduct the time during pursued which he relief in state 1. Standard Review of that proceedings tolled AEDPA’s limita- legal We review district court’s con- period, tions Hernandez filed the instant questions clusions and mixed law and of petition year than one less after he learned novo, using fact de the same standards as that release had court.8 the district The district court’s result, been As a if revoked. Hernandez is of fact findings are reviewed for clear er- equitable tolling period entitled to for the ror.9 time that between the he received the time Certificate and that he learned Analysis 2. (if that he been misled had had fact he Texas asserted before the district court misled), petition timely. been then his petition that Hernandez’s is time-barred It district this is for the court to address one-year peri- under AEDPA’s limitations argument in the first instance on remand. The district court reach od.10 did not this issue, re-urges but Texas it here as an B. Double ground alternative We de- affirming. 1. Standard Review exercise our affirm on cline to discretion to basis, however, Again, legal questions review finding this instead novo, genuine there are issues of fact as of law questions material mixed and fact de Johnson, (5th (Tex.Crim.App.2008). S.W.3d 7. 258 11. Scott v. 227 F.3d 263 omitted). Cir.2000) (internal quotation marks Cockrell, (5th v. 274 F.3d Valdez Cir.2001). 12. Coleman (5th 1999) (internal quotation omit Cir. marks ted). 2244(d)(1) (2006). 10. 28 U.S.C. ... applies particular it to the facts of the applied standards
using the same
“also in-
Any findings of fact are
case.”20 A state court’s decision
district court.14
error.15 A district
application
for clear
volves an unreasonable
[the]
reviewed
an
evidentia-
if the state court either
precedent
court’s denial
Court’s
proceeding
in a
is re-
ry hearing
unreasonably
legal principle
habeas
extends
A
viewed for abuse of discretion.16
a new
[the Court’s]
by denying dis-
court abuses its discretion
apply
context where it should not
or un-
evidentiary
when
covery
hearing
or an
reasonably
principle
refuses to extend that
dispute
which if resolved
there “is
factual
apply.”21
to a new context where it should
favor, would entitle
petitioner’s
[the
met,
For this standard to be
the state
the state has not
petitioner] to relief and
must be
incorrect and
court’s decision
both
petitioner
afforded the
a full and fair hear-
objectively unreasonable.22
ing.”
2254(e)(2)
Section
if the
provides
factual
petitioner
develop
“has failed to
Analysis
basis of a claim in State court proceedings,
*5
a. AEDPA
an
the
court shall not hold
evi-
[district]
dentiary hearing
except
on the claim”
in
AEDPA,
petitioner
before a
is
Under
relief,
certain limited circumstances.23 If a state
he
entitled to
must show
the
however,
discovery,
court does not allow
or
denying
court decision
relief was
state
to,
if the
the factual
“contrary
develop
or involved an unreasonable
“failure to
basis
of, clearly
directly
not
a
application
established Federal
attributable to
[otherwise]
law,
Supreme
petitioner,”
the
decision or omission of the
as determined
Court
2254(e)(2)
§
apply
A decision
a
then
does not
and the
of the United States.”18
“contrary
clearly
may
state court is
to”
estab-
district court
exercise its discretion to
Supreme
precedent
evidentiary hearing
lished
when it
order an
or discov-
Court
ery.24
a rule that
“applies
govern-
permit
contradicts
Because Texas did not
Her-
cases,”
ing
develop
forth in
[the Court’s]
law set
nandez
the factual basis of his
claim,
opposite
Supreme
jeopardy
permits
reaches an
result from a
double
AEDPA
an
if,
“materially
evidentiary hearing.
case with facts that are
And
under the
Court
above,
indistinguishable.”
A state court’s deci-
standard of review announced
application
an “unreasonable
sion is
conclude
material
facts are unre-
solved,
if
the state court
the district court abused its discre-
[the] Court’s
correct
in
a
governing legal
failing
discovery
identifies the
rule
tion
to order
and
unreasonably
hearing.
cases but
[the] Court’s
Valdez,
(O'Connor, J., concurring)
(announcing
14.
17.
marks
original).
in
teration
409-11,
Id. at
b. Merits We cannot resolve the constitutional (1) questions presents without protects The Double Clause how, pre- sufficient reveal First, prohibits interests. it primary two Fonvard, Texas calculated sentence com- on the same offense retrial of a defendant Hernandez’s; pletion dates cases like or conviction.25 That is not acquittal after (2) hearing any underly- facts jeopardy claim interest type of double ing question the mixed of law and fact of that is at issue in this case. The second of a pris- reasonableness belief protected prohibition interest position oner Hernandez’s that his multiple punishments for the same against on February sentence was final Supreme clearly offense.26 above, inquiry As stated such an will adjust- announced the rule that a sentence necessarily include determination person’s legitimate ment that disturbs a whether are Hernandez’s claims time- “expectation sentence” [a] barred. therefore We remand to the dis- against multiple violates the prohibition trict court with instructions to order the punishments.27 It would be unreasonable necessary discovery and to conduct an double-jeopardy to conclude that a viola- (1) evidentiary hearing if: limited to these is- tion has occurred i.e., legitimately, reasonably, believed that sues. Given the limited nature of our certain; remand, jurisdiction his sentence would end on a date we retain pending (2) comes; (3) that date the state takes any the resolution of those issues and completed some action consistent with a subsidiary facts to their determination. (4) sentence; state thereafter rein- *6 carcei’ates that former because of III. CONCLUSION change way that the state calcu- reasons, For the foregoing the
lates sentences.28
the
of
district court is REVERSED and
contends that under
the
REMANDED;
this case
RETAIN
and we
the
governing
rules
calculation
his sen-
jurisdiction
pending
over this case
the con-
preceding
tences at all times
the 2008 deci-
proceedings
clusion of the
here ordered to
Forward,
in Ex
sion
Paiie
he had served
be conducted on remand.
31,
entirety
of sentence # 2 October
2003,
entirety
and the
of sentence
1
REAVLEY,
Judge, dissenting:
Circuit
2,
correct,
If
he is
then he
I
disagree.
majority
must
The
does
has “satisfied” “one valid alternative” con-
explain
expectation
what
is or how
struction of his
in him an
vesting
Hernandez has raised an
that war-
issue
expectation that further review would not
judicial
a hearing
rants remand for
and
reallocate his consecutive sentences in a
briefs,
i.e.,
term,
action. From the
I assume that
extending
manner
his
imposing
speculated
Hernandez has
about Texas law
another “valid alternative” of how he
twenty-eight year
completion
should serve
combined
calculation of sentence
pri-
sentence.29
of two consecutive sentences after the
426;
Thomas,
136,
Bradley,
491
101
In re
Jones
U.S.
109
28. See id. at
S.Ct.
(1989).
S.Ct.
Criminal
how Texas treats
Forward,
tion.
In Ex Parte
eligibility
S.W.3d
for consecutive sentences for of
so,
(Tex.Crim.App.2008),
that court
pre-
post-
did
fenses that were committed
and
law,
changing no
and Hernandez’s sen-
argues
1987. But he
the Forward
complies.
tence
I see no basis for a legiti-
approach
applied
could not have been
expectation contrary
mate
to Texas law. him in 1993 or 2004 because of the then-
law.
existing
presents
Hernandez then
Respondent’s
calculation of the re-
purported legitimate expectation
for
lease date
Hernandez’s two consecu-
in
pre-Forward
his sentences from the
tive
sentences is
accord with state law
Texas state law. But the cases he cites do
Forward,
as announced
at
S.W.3d
procedural
not contain the same factual or
155. The court
there instructed that
here, i.e.,
posture present
consecutive sen
when,
Hernandez,
like
a defendant’s
straddling
pre-
post-1987
tences
and
pre-
stacked sentences involve both
laws,
supervised
point
release
nor does he
offenses,
post-1987
the state should calcu-
to evidence of the
executing
state
such
late a
supervised release date
consecutive
sentences
the manner he
for
release-eligible
then
Salinas,
advocates. See Ex Parte
length
add the
of any release-ineligible
240 (Tex.Crim.App.2006);
S.W.3d
Ex
sentences to arrive at
final mandatory
Gabriel,
(Tex.Crim.
Parte
sentence for the murder for which
he could never be to supervision, released he partially burglary served the sen-
tence in physical custody and was then
released to supervision supervised- on that
release-eligible offense. I fail to see how
any contrary part view of the law on the legal significance. would be of