Fuhrman v. Cockrell , 79 F. App'x 614 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
IN THE UNITED STATES COURT OF APPEALS July 11, 2003
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 03-50101
Summary Calendar
MICHAEL JOSEPH FUHRMAN,
Petitioner-Appellant,
versus
JANIE COCKRELL, DIRECTOR,
TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent-Appellee.
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Appeal from the United States District Court
for the Western District of Texas
USDC No. P-01-CV-27-F
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Before HIGGINBOTHAM, SMITH and CLEMENT, Circuit Judges.
PER CURIAM:*
Michael Joseph Fuhrman, Texas prisoner # 531212, seeks a
certificate of appealability (COA) to appeal the denial of his 28
U.S.C. § 2254 petition. He raises several constitutional claims
pertaining to his discipline for refusing to submit a DNA sample
in conformity with TEX. GOV’T CODE ANN. § 411.148 (Vernon Supp.
2003). The district court found that Fuhrman had not lost good-
*
Pursuant to 5TH CIR. R. 47.5, the court has determined
that this opinion should not be published and is not precedent
except under the limited circumstances set forth in 5TH CIR.
R. 47.5.4.
No. 03-50101
-2-
time credits and that he was ineligible for release to mandatory
supervision.
Furhman, however, provided the district court with several
inmate time slips, which support his contention that he lost
good-time credits in disciplinary proceedings other than
disciplinary case # 20010015552 as a result of his persistent
refusal to give a DNA specimen. Moreover, Fuhrman provided the
district court with his mandatory supervision release
certificate, rendering debatable the issue whether he is eligible
for release to mandatory supervision. Texas prisoners eligible
for mandatory release who allege that they were erroneously
denied good-time credit that, if restored, would effect sooner
release from prison may seek relief under 28 U.S.C. § 2254.
Malchi v. Thaler, 211 F.3d 953, 956 (5th Cir. 2000). Fuhrman has
met his burden of showing that “that reasonable jurists would
find the district court’s assessment of the constitutional claims
debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484
(2000).
We therefore grant Fuhrman a COA, vacate the district
court’s judgment, and remand for a definitive finding whether
Fuhrman lost good-time credits in any disciplinary cases other
than # 20010015552 for refusing to submit a DNA specimen. Should
this be the case, the district court is instructed to order the
Respondent to brief the issues (1) whether Furhman is eligible
for release to mandatory supervision and (2) whether his
No. 03-50101
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forfeiture of good-time credits contravenes § 411.148(d)’s
provision that “[a]n inmate may not be held past a statutory
release date if the inmate fails or refuses to provide a blood
sample,” and, if so, whether there are constitutional
implications necessitating habeas relief. COA is denied in all
other respects.
The district court opined that Fuhrman’s Georgia offense did
not, on its face, support a finding that he was required to
submit to DNA testing, because there was no indication that the
burglary was committed with the intent to commit the felonies
formerly enumerated in § 411.148. We note, however, that
§ 411.148 was amended in 1999 to delete the provision that had
required DNA eligible burglaries to have been committed with the
intent to commit the crimes enumerated in § 411.148(a)(1). See
TEX. GOV’T CODE ANN. § 411.148(a)(1), (2) (Vernon Supp. 2003); see
also Act of June 19, 1999, ch. 1368, § 1, 1999 Tex. Legis. Serv.
(amending § 411.148 effective September 1, 1999). Consequently,
there is no indication that the Georgia offense of burglary of a
habitation was not a DNA eligible offense, given that it involved
conduct punishable under Texas Penal Code § 30.02(c)(2), which
provides that the crime of burglary is a “felony of the second
degree if committed in a habitation.” TEX. PENAL CODE. ANN.
§ 30.02(c)(2) (Vernon 2003).
COA GRANTED; VACATED AND REMANDED.