Burden v. Dretke

Full title: KIM WAYNE BURDEN, Petitioner, v. DOUGLAS DRETKE, Director, Texas…

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

Date published: Apr 13, 2004

No. 2:03-CV-0422 (N.D. Tex. Apr. 13, 2004)

Opinion

No. 2:03-CV-0422.

April 13, 2004

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

CLINTON AVERITTE, Magistrate Judge

Petitioner KIM WAYNE BURDEN has filed with this Court a petition for a writ of habeas corpus challenging two prison disciplinary cases. In both his original habeas application and his amended application, petitioner advises he is in respondent's custody pursuant to an October 16, 1996 conviction out of the 276^th Judicial District Court of Camp County for the felony offense of robbery, and the resulting 20-year sentence. Despite robbery being a listed offense which renders an inmate ineligible for mandatory supervision, Tex. Gov't Code § 508.149(a)(10) (Vernons 1996), petitioner avers, in his amended petition, that he is eligible for mandatory supervised release.

On April 13, 2004, a custodian of records at the Texas Department of Criminal Justice, Correctional Institutions Division, confirmed that petitioner is serving a sentence for the conviction of the offense of 2^nd degree robbery and is not eligible for mandatory supervised release.

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 this case, petitioner appears to have lost good time, however, petitioner isnot eligible for mandatory release due to his conviction of the 2^nd degree felony offense of robbery.

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 KIM WAYNE BURDEN be DENIED.

INSTRUCTIONS FOR SERVICE and NOTIFICATION OF RIGHT TO OBJECT

The United States District Clerk is directed to send a file-marked copy of this Report and Recommendation to petitioner utilizing the inmate correspondence card if petitioner's last known address is a prison unit, or by certified mail, return receipt requested, if petitioner has provided the Court with a non-institutional address.

Any party who wishes to make objections to this Report and Recommendation must make such objections within fourteen (14) days after the filing thereof. See 28 U.S.C. § 636(b); Rule 8(b)(3) of the Rules Governing Section 2254 Cases in the United States District Courts; Fed.R.Civ.P. 5(b), 6(e). Any such objections shall be in writing and shall specifically identify the portions of the findings, conclusions, or recommendation to which objection is made, and set out fully the basis for each objection. Any objecting party shall file written objections with the United States District Clerk and serve a copy of such objections on all other parties. A party's failure to timely file written objections to the proposed findings, conclusions, and recommendation contained in the original Report and Recommendation shall bar him, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions set forth in this report and accepted by the district court. Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).

IT IS SO RECOMMENDED.