Barrera v. Dretke

Full title: MIKE BARRERA, Petitioner, v. DOUGLAS DRETKE, Director, Texas Department of…

Court: United States District Court, N.D. Texas, Amarillo Division

Date published: Mar 15, 2005

No. 2:04-CV-0248 (N.D. Tex. Mar. 15, 2005)

Opinion

No. 2:04-CV-0248.

March 15, 2005

REPORT AND RECOMMENDATION TO DENY PETITION FOR A WRIT OF HABEAS CORPUS

CLINTON AVERITTE, Magistrate Judge

Petitioner has filed with this Court a petition for a writ of habeas corpus challenging an October 14, 2003 prison disciplinary proceeding and the resultant loss of 730 days previously earned good time credits. The disciplinary proceeding took place at the Clements Unit in Potter County, Texas. As of the date the instant habeas application was filed, petitioner remained incarcerated in the Clements Unit.

Petitioner was granted temporary permission to proceed in forma pauperis in this case as the Court had not received any payment to satisfy the requisite filing fee or an application to proceed without payment. On October 22, 2004, petitioner submitted to this Court correspondence wherein he advised he had submitted a money order for the filing fee with his petition to the Dallas Division Court. Petitioner provided a copy of a money order receipt in the amount of $5.00. The Dallas Division advised this Court that it did not have any record of a $5.00 money order being submitted in this case. As of this date, petitioner has not paid the requisite filing fee in this case, nor submitted evidence that this Court, the Dallas Court, or any other court, received and processed the money order for the requisite filing fee in this case, nor has he submitted an application to proceed in forma pauperis.

Ineligibility for Mandatory Supervision

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 out of the 144^th Judicial District Court in Bexar County, Texas, and the resulting 15-year sentence. Petitioner fails, however, to identify the crime for which he was convicted, whether such conviction resulted in an affirmative finding of a deadly weapon, or whether petitioner is eligible for mandatory supervised release. Inquiry on this date to the Texas Department of Criminal Justice, Correctional Institutions Division, revealed petitioner is currently serving the 15-year sentence for his conviction of the offense of aggravated sexual assault of a child. While petitioner appears to have lost good time, petitioner is not eligible for mandatory supervised release due to his conviction for aggravated sexual assault. See Tex. Code Crim. Proc. § 508.149(a)(7).

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 MIKE BARRERA be DISMISSED for failure to pay the habeas corpus filing fee. It is the alternative 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 MIKE BARRERA 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.