Opinion
No. 2:04-CV-0235.
October 18, 2004
REPORT AND RECOMMENDATION TO DENY PETITION FOR A WRIT OF HABEAS CORPUS
Petitioner RUBEN ESPINOSA, JR., a state prisoner, has filed with this Court a petition for a writ of habeas corpus challenging a March 5, 2004 prison disciplinary proceeding and the resultant loss of 2.298 days of earned good time credit. The disciplinary proceeding took place at the Dalhart Unit in Dallam County, Texas. As of the date the instant habeas application was filed, petitioner remained incarcerated in the Dalhart Unit.
In order to challenge a prison disciplinary adjudication by way of a federal petition for a writ of habeas corpus, a petitioner must, at a minimum, be eligible for mandatory supervised releaseand have received a punishment sanction which included forfeiture of previously accrued good time credits. See Malchi v. Thaler, 211 F.3d 953, 958 (5th Cir. 2000). In his habeas application, petitioner advises he is in respondent's custody pursuant to a conviction for intoxicated manslaughter out of Bexar County, Texas, and the resulting 8-year sentence. Petitioner avers that for his original conviction, there was a finding that he used or exhibited a deadly weapon, and that he is not eligible for mandatory supervised release. See Tex. Gov't Code § 508.149(a)(1). In the instant case, petitioner appears to have lost good time, however, petitioner is not eligible for mandatory supervised release due to his conviction for intoxicated manslaughter and the resultant finding that he used or exhibited a deadly weapon.
RECOMMENDATION
It is the RECOMMENDATION of the undersigned United States Magistrate Judge to the United States District Judge that the petition for a writ of habeas corpus filed by petitioner RUBEN ESPINOSA, JR. be DENIED.
INSTRUCTIONS FOR SERVICE
The United States District Clerk is directed to send a file-marked copy of this Report and Recommendation to petitioner by the most efficient means available.
IT IS SO RECOMMENDED.