Curry v. Dretke

Full title: MALCOLM CURRY, Petitioner, v. DOUGLAS DRETKE, Director, Texas Department…

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

Date published: Oct 18, 2004

2:04-CV-0205 (N.D. Tex. Oct. 18, 2004)

Opinion

2:04-CV-0205.

October 18, 2004

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

CLINTON AVERITTE, Magistrate Judge

Petitioner MALCOLM CURRY, a state prisoner, has filed with this Court a petition for a writ of habeas corpus challenging a March 22, 2004 prison disciplinary proceeding and the resultant loss of what petitioner categorizes as, "extreme reduction in custody status; extreme deletion of earned good time credits." The disciplinary proceeding took place at the Roach Unit in Childress County, Texas. As of the date the instant habeas application was filed, petitioner remained incarcerated in the Roach 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 four convictions out of Tarrant County, Texas for the offenses of aggravated assault, escape, and two counts of assault on a public servant, and the resulting 5-year concurrent sentences. Petitioner avers that for his original convictions, there was no finding that he used or exhibited a deadly weapon, but that he is not eligible for mandatory supervised release. Aggravated assault is a listed offense which renders an inmate ineligible for mandatory supervision. Tex. Gov't Code § 508.149(a)(7). 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 aggravated assault.

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 MALCOLM CURRY 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.