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IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT

No. 02-40615
Summary Calendar

JOSEPH K. ARNOLD,
Petitioner - Appellant,
versus
JANIE COCKRELL, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL JUSTICE,
INSTITUTIONAL DIVISION,
Respondent - Appellee.

Appeal from the United States District Court
For the Eastern District of Texas

October 2, 2002
Before HIGGINBOTHAM, SMITH, and CLEMENT, Circuit Judges.
PER CURIAM:
Joseph K. Arnold, Texas state prisoner # 284250, appeals the
district court's denial of habeas corpus relief. We affirm.
I. Facts and Procedural History
Arnold was convicted by a jury in 1978 of aggravated kidnapping,
and subsequently sentenced to life in prison. Arnold filed a state
postconviction application in 2001, arguing that he was entitled to
release to mandatory supervision on the basis that his combined

calendar time and good-time credits exceeded the statutory time
necessary for the granting of such release. The Court of Criminal
Appeals denied this petition in January 2002. Arnold filed the
instant § 2254 petition in February 2002, at which time he had served
23 calendar years and had accumulated 43 years of good-time credit,
for a total of 66 years of credit. He asserts that the mandatory
supervision law in effect for prisoners sentenced in 1978 requires
that inmates who have accumulated more than 60 years of total time
must be released to mandatory supervision.
The district court denied Arnold's petition, stating that the
statute could not be applied to prisoners who had received a life
sentence. However, the district court granted Arnold a certificate
of appealability because of a conflict among district courts in the
treatment of this issue. This is a matter of first impression for
this court.
II. Analysis
Federal habeas relief is available only if a prisoner "has been
deprived of some right secured to him or her by the United States
Constitution or by the laws of the United States."1 In Malchi, we
concluded that Texas's mandatory supervision law in place prior to
September 1, 1996 created a "constitutional expectancy of early
1 Malchi v. Thaler, 211 F.3d 953, 957 (5th Cir. 2000)(quoting
Orellana v. Kyle, 65 F.3d 29, 31 (5th Cir. 1995)).
2

release."2 Therefore, it must be determined if Arnold is eligible for
mandatory supervision release. If he is not, Arnold does not have a
constitutional claim for which relief can be granted.
The statute at issue at the time Arnold was sentenced reads: "A
prisoner who is not on parole, except a person under sentence of
death, shall be released to mandatory supervision by order of the
Board when the calendar time he has served plus any accrued good
conduct time equal the maximum term to which he was sentenced."3 The
statute does not state how the maximum time for a life sentence is
determined.
The district court concluded that although theoretically
eligible for release, "the reality of the matter is that [Arnold]
will never be factually eligible to be released" because "his
calendar time combined with his good conduct time will never reach a
life sentence."4 Other courts have reached the same conclusion.5
However, at least one district court reached a different result.6
2 Id. at 957-58.
3 Tex. Code Crim. Proc. Ann. art. 42.12 § 15(c)(Vernon 1977).
4 Arnold v. Director, TDCJ-ID, No. 02-CV-93 (E.D. Tex. Mar.4,
2002)(Mag. report and recommendations, accepted by order of Apr. 3,
2002).
5 See, e.g., Barnes v. Cockrell, 2002 WL 1878548 (N.D. Tex. Aug.
12, 2002); Brown v. Cockrell, 2002 WL 638584 (N.D. Tex. Apr. 17,
2002); Morris v. Cockrell, 2002 WL 66798 (N.D. Tex. Jan. 11, 2002);
Derry v. Johnson, 2001 WL 1029520 (N.D. Tex. Aug. 27, 2001).
6 Govan v. Johnson, No. 1-97-247-C (N.D. Tex. July 28,
1998)(unpublished).
3

We need not resolve this issue ourselves, because the Court of
Criminal Appeals of Texas has addressed this issue in a recent
opinion. It concluded that "a life-sentenced inmate is not eligible
for release to mandatory supervision"7 under the 1981 version of the
statute at issue. The court concluded that neither the 1981 statute
nor the current statute permitted release for prisoners sentenced for
life. The court reasoned: "Under a literal reading of this law, it
is mathematically impossible to determine a mandatory supervision
release date on a life sentence because the calendar time served plus
any accrued good conduct time will never add up to life."8 The same
conclusion clearly applies to the 1977 version of the law, which is
at issue here, because the relevant language is the same as the 1981
version.
As we have stated, "[i]t is not our function as a federal
appellate court in a habeas proceeding to review a state's
interpretation of its own law", and "we defer to the state courts'
interpretation" of its statute.9 In Seaton v. Procunier, we stated:
"We will take the word of the highest court on criminal matters of
Texas as to the interpretation of its law, and we do not sit to
review that state's interpretation of its own law."10
7 Ex parte Franks, 71 S.W.3d 327 (Tex. Crim. App. 2001).
8 Id. at 328.
9 Weeks v. Scott, 55 F.3d 1059, 1063 (5th Cir. 1995)(citations
omitted).
10 750 F.2d 366, 368 (5th Cir. 1985).
4

We must therefore conclude that Arnold is not eligible for
release under the Texas mandatory supervision statute. Because he is
not eligible for release, Arnold does not have a constitutionally
protected interest, and his petition for habeas corpus relief must be
denied. AFFIRMED.
5