Cabiness v. Dretke

Full title: DAVID WAYNE CABINESS, Petitioner, v. DOUGLAS DRETKE, Director, Texas…

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

Date published: Feb 9, 2004

2:03-CV-0104 (N.D. Tex. Feb. 9, 2004)

Opinion

2:03-CV-0104

February 9, 2004

REPORT AND RECOMMENDATION TO DENY PETITION FOR A WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY

CLINTON AVERITTE, Magistrate Judge

On March 10, 2003, petitioner DAVID WAYNE CABINESS filed a Petition for a Writ of Habeas Corpus by a Person in State Custody challenging the result of a August 1, 2002 prison disciplinary proceeding. In order to challenge a state 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 release and 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). Petitioner advises the Court that he did not lose any good time credits. Consequently, petitioner is not entitled to federal habeas corpus relief.

RECOMMENDATION

It is the RECOMMENDATION of the United States Magistrate Judge to the United States District Judge that the Petition for a Writ of Habeas Corpus by a Person in State Custody filed by petitioner DAVID WAYNE CABINESS 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.

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.