Johnson v. Patton, 2014 WL 4377708 (9/5/14) (Okl.) (unpub'd) - A state habeas petitioner challenges the crediting of jail and street-time and gets a remand. The district court denied relief on the grounds that Mr. Johnson only raised state law claims. But the 10th points out that whether the state has created a liberty interest in certain credits depends on an analysis of state law and actions. To the extent Mr. Johnson is entitled to credits because they were awarded or apply by operation of state law, he has a liberty interest by Oklahoma law. With respect to time served in jail prior to trial, state law says the defendant "will automatically receive credit for" that time. Plus it was corrections department policy to apply jail-time credit if the sentencing judge didn't deny it. Since the trial court did not deny it, nothing in the record indicated Mr. Johnson was not entitled to the credits. As to whether Mr. Johnson received those credits, the record indicated only that the relevant records were lost in a fire. On remand the district court would need to decide if Mr. Johnson received the credits he was due and, if not, whether the state deprived him of those credits through a constitutionally sufficient procedure.

As for street time, i.e., time spent on parole, Mr. Johnson had a due process liberty interest in the state applying street-time credits to which he was entitled. While it was in the governor's discretion to decide whether or not to grant Mr. Johnson street time, the governor actually did award him 10 years of street time credit. So he is entitled to that credit. Mr. Johnson and the state dispute whether state law requires that time to be credited against his 37-year sentence from which he was paroled or just the year sentence imposed when the governor revoked parole. The 10th remanded for the district court to analyze the state law question, [which the 10th suggests the district court could certify to the Oklahoma Court of Criminal Appeals], and decide if Mr. Johnson has a due process interest in having the credits applied to the 37-year sentence. If he had such an interest, then the d. ct. must decide if Mr. Johnson was deprived of that interest through a constitutionally sufficiently procedure.

In a footnote the 10th observes that, since Mr. Johnson did not have a Sixth Amendment right to counsel in a civil case, he also had no Sixth Amendment right to go pro se. But he does have a federal statutory right under 28 U.S.C. § 1654 ("in all courts of the U.S. the parties may plead and conduct their own cases personally") to go pro se in a civil case. So the 10th directed the d.ct. to consider any renewed request to go pro se. It had previously denied Mr. Johnson's pro se requests. On the other hand, the 10th notes counsel must be appointed under Rule 8(c) of the Rules governing § 2254 cases, if the district court holds an evidentiary hearing.