         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT United States Court of Appeals
                                                 Fifth Circuit

                                                                  FILED
                                                              December 13, 2007
                               No. 05-20944
                             Summary Calendar               Charles R. Fulbruge III
                                                                    Clerk

HUEY P WALTERS,

                                           Petitioner-Appellant

v.

NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF
CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                           Respondent-Appellee


                Appeal from the United States District Court
                     for the Southern District of Texas
                          USDC No. 4:05-CV-1026


Before KING, DAVIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
     Huey P. Walters, Texas prisoner # 501052, appeals the district court’s
denial of his 28 U.S.C. § 2254 petition for failure to exhaust his state court
remedies and, in the alternative, grant of the respondent’s motion for summary
judgment with regard to the award of his educational good-time credits.
     The district court erred in denying Walters’s § 2254 petition for failure to
exhaust. Although the state habeas trial court recommended that Walters’s


     *
      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should not be published and is not precedent except under the limited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. 05-20944

state habeas application be “dismissed” on procedural grounds, the Texas Court
of Criminal Appeals “denied” the application. Under this court’s precedent,
because Walters’s state habeas application was “denied,” it was adjudicated on
the merits and not dismissed on procedural grounds. Miller v. Johnson, 200
F.3d 274, 281 (5th Cir. 2000); see Ex parte Torres, 943 S.W.2d 469, 472 (Tex.
Crim. App. 1997).     The record shows that Walters filed his state habeas
application after he filed his time-credit dispute resolution forms and more than
180 days had passed without a response and, thus, contrary to the state habeas
trial court’s finding, Walter was not precluded from raising his time-credit
claims in his state habeas application. See TEX. GOV’T CODE ANN. § 501.0081
(West 2004); Ex parte Stokes, 15 S.W.3d 532, 533 (Tex. Crim. App. 2000).
      Walters argues that the state created a liberty interest in the award of
educational good-time credits and that prison officials failed to award him all of
the good-time credits to which he was entitled upon completion of his college
degree in December 2003. Walters also asserts that by not backdating his
educational credits prison officials have lengthened his sentence in violation of
the Ex Post Facto Clause.
      The district court found that Walters failed to show that he did not receive
the proper amount of time credits following his completion of an educational
program and failed to dispute the respondent’s assertion that he could earn no
more credits than he was currently receiving. However, the district court
granted summary judgment to the respondent and, thus, it was the respondent’s
burden to show that there were no errors in how credits were awarded to
Walters. See FED. R. CIV. P. 56(c). Walters’s time record is not in the record on
appeal, and there was no summary judgment evidence showing that Walters was
not entitled to ten additional good-time credits upon the completion of his college
degree or showing how many credits he was awarded. The summary judgment
evidence presented by the respondent contained only a conclusional assertion
that there were no errors in the calculation of Walters’s sentence. Thus, the

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district court erred in granting summary judgment to the respondent based on
Walters’s failure to show that he did not receive the proper amount of credits to
which he is entitled.
      The district court also erred in determining that, even assuming that
Walters did not receive the proper of amount of credits, Walters was not entitled
to federal habeas relief because, under Texas law, good-time credits do not affect
an inmate’s term of imprisonment. It is well settled that Texas inmates, such
as Walters, who are eligible for mandatory supervision release have a protected
liberty interest in earned good-time credits. Teague v. Quarterman, 482 F.3d
769, 776-77 (5th Cir. 2007); Malchi v. Thaler, 211 F.3d 953, 957-58 (5th Cir.
2000).
      For the same reason, the district court erred in determining that the
failure to backdate Walters’s good-time credits did not violate the Ex Post Facto
Clause because such credits did not affect or increase his term of imprisonment.
The Supreme Court has found ex post facto violations with respect to
retrospective changes affecting a prisoner’s good-conduct time. See Lynce v.
Mathis, 519 U.S. 433, 445-46 (1997); Weaver v. Graham, 450 U.S. 24, 35-36
(1981). The respondent did not put on any summary judgment evidence showing
that Walters was not entitled to backdating of the award of the educational
credits, and it is not clear from the record whether Walters is entitled to
backdating. Accordingly, the district court erred in granting summary judgment
to the respondent on this claim.
      JUDGMENT VACATED AND CASE REMANDED FOR FURTHER
PROCEEDINGS.




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