Gibson v. Dretke

* 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this opinion should not be published and is not precedent except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.
United States Court of Appeals
Fifth Circuit
F I L E D
April 11, 2006
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 04-20456
Summary Calendar
NINO CASTELLANIA GIBSON,
Petitioner-Appellant,
versus
DOUG DRETKE, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
CORRECTIONAL INSTITUTIONS DIVISION,
Respondent-Appellee.
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Appeal from the United States District Court
for the Southern District of Texas
USDC No. 4:04-CV-1145
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Before JOLLY, DAVIS and OWEN, Circuit Judges.
PER CURIAM:*
Nino Castellania Gibson, Texas prisoner # 561250, appeals
the denial of his 28 U.S.C. § 2254 petition challenging the
denial of credit for time served on release to mandatory
supervision after his supervision was revoked. A certificate of
appealability was granted on the issues “whether he was eligible
for credit for his street time under TEX. GOV’T CODE ANN.
§ 508.283(c) and whether he had a protected liberty interest in
credit for his street time.” Gibson v. Dretke, No. 04-20456 (5th

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No. 04-20456
-2-
Cir. Jan. 4, 2005) (unpublished). We review the district court’s
findings of fact for clear error and its legal conclusions de
novo. Summers v. Dretke, 431 F.3d 861, 868 (5th Cir. 2005).
Section 508.283(c) was amended to provide “that certain
parole violators will receive street-time credit if the
‘remaining portion’ of their sentence is less than the amount of
time they have spent out on parole.” See Ex parte Spann, 132
S.W.3d 390, 392 (Tex. Crim. App. 2004). The amendments, however,
apply only to revocations occurring on or after September 1,
2001. Id.; TEX. GOV’T CODE ANN. § 508.283 (Vernon 2004).
The record discloses that Gibson’s mandatory supervision was
revoked on March 26, 2001. Consequently, he is not entitled to
credit for street time because his mandatory supervision was
revoked prior to September 1, 2001. See Spann, 132 S.W.3d at
392. We therefore need not reach the issue whether § 508.283(c)
affords Texas prisoners a liberty interest in street-time credit.
In light of the foregoing, the state court’s decision was
neither contrary to, or involved an unreasonable application of,
clearly established federal law, nor was it based on an
unreasonable determination of the facts in light of the evidence.
See § 2254(d); Summers, 431 F.3d at 868.
AFFIRMED.

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