in Re Danny Cline ( 2010 )

IN THE
TENTH COURT OF APPEALS
No. 10-10-00191-CR
IN RE DANNY CLINE
Original Proceeding
MEMORANDUM OPINION
Danny Cline seeks a writ of mandamus compelling state prison officials to give
him time credit for his participation in educational and vocational programs. Because
Cline either has or had an adequate remedy at law, we will deny his request for
mandamus relief.1
To obtain mandamus relief, a petitioner must first show that he has no adequate
remedy at law. Simon v. Levario, 306 S.W.3d 318, 320 (Tex. Crim. App. 2009) (orig.
proceeding). Under ordinary circumstances, the proper avenue for challenging the
manner in which the Department of Criminal Justice awards time credits is by a habeas
1
We apply Rule of Appellate Procedure 2 and disregard numerous deficiencies in Cline’s
mandamus petition. See TEX. R. APP. P. 2.
application under article 11.07 of the Code of Criminal Procedure. See, e.g., Ex parte
Williams, 257 S.W.3d 711 (Tex. Crim. App. 2008) (per curiam); see also TEX. CODE CRIM.
PROC. ANN. art. 11.07 (Vernon Supp. 2009).
Here, however, Cline contends that habeas relief is not available because of the
abuse-of-the-writ doctrine.2 See TEX. CODE CRIM. PROC. ANN. art. 11.07, § 4; Ex parte
Brooks, 219 S.W.3d 396, 399-400 (Tex. Crim. App. 2007) (the subsequent-application
provision of article 11.07, section 4 “adopts the abuse-of-the-writ doctrine used in
federal practice”). Article 11.07, section 4(a)(1) prohibits the filing of a subsequent
habeas application unless:
the current claims and issues have not been and could not have been
presented previously in an original application or in a previously
considered application filed under this article because the factual or legal
basis for the claim was unavailable on the date the applicant filed the
previous application.
TEX. CODE CRIM. PROC. ANN. art. 11.07, § 4(a)(1).3
But after referring to the abuse-of-the-writ doctrine, Cline argues that his current
claim could not have been raised earlier because his claim did not accrue until June 28,
2009 when the Department allegedly should have released him if it had given him the
time credits he claims were wrongfully denied. We need not decide whether Cline
could have presented this claim in a previous habeas application because he is not
2
According to information found on the website of the Court of Criminal Appeals, Cline has filed
thirteen habeas applications. Three of them were dismissed as improper subsequent writs under article
11.07, section 4.
3
Section 4(a)(2) permits the filing of a subsequent habeas application if the application contains
facts that establish “by a preponderance of the evidence, but for a violation of the United States
Constitution no rational juror could have found the applicant guilty beyond a reasonable doubt.” TEX.
CODE CRIM. PROC. ANN. art. 11.07, § 4(a)(2) (Vernon Supp. 2009). This provision does not apply to Cline’s
time-credit claim.
In re Cline Page 2
entitled to mandamus relief regardless of whether the claim is barred by the abuse-of-
the-writ doctrine.
If this claim could have been presented in a previous habeas application but
Cline failed to do so, then he cannot now seek mandamus relief. See In re Pannell, 283
S.W.3d 31, 36 (Tex. App.—Fort Worth 2009, orig. proceeding) (“Mandamus is not
available if another remedy, though it would have been adequate, was not timely
exercised.”); accord In re Carson, 12 S.W.3d 886, 888 (Tex. App.—Texarkana 2000, orig.
proceeding).
If the claim could not have been presented in a previous habeas application, then
Cline has an adequate legal remedy available to him, namely, a habeas application
under article 11.07, § 4(a)(1). See TEX. CODE CRIM. PROC. ANN. art. 11.07, § 4(a)(1).
Cline either has or had an adequate legal remedy by habeas. Therefore, we deny
his mandamus petition.
FELIPE REYNA
Justice
Before Chief Justice Gray,
Justice Reyna, and
Justice Davis
Petition denied
Opinion delivered and filed August 18, 2010
Do not publish
[OT06]
In re Cline Page 3