Johnson v. Quarterman

IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 10, 2008
No. 08-50499
Conference Calendar Charles R. Fulbruge III
Clerk
WILLIAM E JOHNSON
Plaintiff-Appellant
v.
NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION
Defendant-Appellee
Appeal from the United States District Court
for the Western District of Texas
USDC No. 1:08-CV-273
Before DAVIS, WIENER, and PRADO, Circuit Judges.
PER CURIAM:*
William E. Johnson, Texas prisoner # 493576, who was convicted of
aggravated sexual assault, filed a habeas petition alleging that he did not receive
credit on his sentence for the period he was released from prison under
mandatory supervision. Johnson has filed an interlocutory appeal from the
district court’s order denying his motion for a preliminary injunction seeking his
release on a personal recognizance bond. He repeats his argument that his
*
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should not be published and is not precedent except under the limited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. 08-50499
sentence was illegally extended because, following the revocation of his release
on mandatory supervision, he did not receive credit for the time that he spent on
release from prison under mandatory supervision. He contends that he has
shown unconstitutional acts on the respondent’s part and that he is being
illegally incarcerated.
Interlocutory orders denying injunctions are immediately appealable as
an exception to the final-judgment rule. See 28 U.S.C. § 1292(a)(1); Lakedreams
v. Taylor, 932 F.2d 1103, 1107 (5th Cir. 1991). A district court's decision on a
motion for a preliminary injunction is reviewed for abuse of discretion. Women’s
Med. Ctr. v. Bell, 248 F.3d 411, 418-19 (5th Cir. 2001). The plaintiff must
establish four elements: (1) a substantial likelihood of success on the merits;
(2) a substantial threat that the plaintiff will suffer irreparable injury; (3) that
the threatened injury outweighs any harm the injunction might cause the
defendant; and (4) that an injunction is not contrary to the public interest.
Hoover v. Morales, 164 F.3d 221, 224 (5th Cir. 1998).
Prior to September 2001, Texas prisoners were not entitled to credit on
their sentences for the period that they were released on mandatory supervision
if their release was revoked; thus, they had no liberty interest in street time
credits. See Thompson v. Cockrell, 263 F.3d 423, 426 (5th Cir. 2005); Starnes v.
Connett, 464 F.2d 524, 524 (5th Cir. 1972). Texas law was amended effective
September 1, 2001, to provide “that certain parole violators will receive street-
time credit.” Ex parte Spann, 132 S.W.3d 390, 392 (Tex. Crim. App. 2004); see
TEX. GOV’T CODE ANN. § 508.283(c). This amendment could have created a
liberty interest in retaining street-time credit for some prisoners whose release
was revoked after September 1, 2001.
However, the amendment does not apply to prisoners who have been
convicted of certain violent offenses listed in TEX. GOV’T CODE ANN. § 508.149(a).
Because Johnson was convicted of aggravated sexual assault, a felony listed in
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No. 08-50499
§ 508.149(a)(8), he is not eligible for the credit on his sentence. See § 508.283(b);
Spann, 132 S.W.3d at 392 & n.4.
Johnson has not demonstrated that he has a liberty interest in receiving
street-time credit for the period that he was released on mandatory supervision.
Thus, Johnson has not made a showing that there is a substantial likelihood
that he will succeed on the merits of his habeas claim. He has not shown
irreparable harm or injury because he is merely serving the sentence that was
imposed for his offense of conviction. Nor has he made any specific showing that
his release would not disserve the public interest. The district court did not
abuse its discretion in denying Johnson’s motion for a preliminary injunction.
Women’s Med. Ctr., 248 F.3d at 418-19. The ruling is AFFIRMED.
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