Opinion
No. 2:01-CV-0040
April 22, 2002
On November 9, 2000, petitioner HERBERT FEIST filed a Petition for a Writ of Habeas Corpus by a Person in State Custody challenging the results of three prison disciplinary proceedings that occurred at the William P. Clements Unit in Amarillo, Potter County, Texas. Petitioner initially filed this case in the Eastern District of Texas, Beaumont Division. The case was transferred to this Court in January 2001. In his original petition, which consists of more than 25 pages and which was not submitted on the proper habeas forms, petitioner disclosed information indicating the punishment imposed on him as a result of these disciplinary convictions included reductions in line class, and cell, recreation and commissary restrictions. From his original petition, it did not appear that petitioner lost any previously earned good-time credits as a result of the disciplinary cases.
The Beaumont Court, prior to transferring the case to this Court, did issue an Order on December 7, 2000, requiring Feist to list all of the sanctions he suffered as a result of his disciplinary convictions in case nos. 990333692, 20000226492, and 20010000802. In response, petitioner did not claim to have lost any previously earned good-time. After transfer of this case from the Eastern District, a Show Cause Order issued from this Court on April 6, 2001. In response to such Show Cause Order, petitioner again listed a multitude of sanctions and alleged improprieties on each disciplinary case, and, except for one passing reference regarding disciplinary case number 20010000802 to "lost of good time" without any specifics or documentary support, petitioner did not allege he lost any specific amount of "previously earned good-time credits."
Petitioner may seek to recover good-time credits lost in a prison disciplinary proceeding by way of a writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973). However, as set forth above, petitioner has not established that he lost any previously earned good-time credits in disciplinary case numbers 990333692 or 20000226492, and he has not answered consistently with respect to case number 20010000802. Because petitioner has not established that he lost any good-time credits in these disciplinary proceedings, petitioner has failed to show he is presently suffering any cognizable federal constitutional deprivation to warrant habeas corpus relief.
"As a general rule, only sanctions which result in loss of good conduct time credits for inmates who are eligible for release on mandatory supervision or which otherwise directly and adversely affect release on mandatory supervision will impose upon a liberty interest." Spicer v. Collins, 9 F. Supp.2d 673, 685 (E.D.Tex. 1998)( citing Orellana v. Kyle, 65 F.3d 29, 31-33 (5th Cir. 1995), cert. denied, 516 U.S. 1059 (1996)). Since petitioner did not lose any good-time credits, he is not entitled to federal habeas 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 HERBERT FEIST be DENIED with respect to disciplinary case numbers 990333692 and 20000226492 because petitioner did not lose any good time. It is the further recommendation that the petition be denied with respect to disciplinary case number 20010000802, unless within fourteen (14) days from this date petitioner FEIST obtains the current habeas corpus forms available to him at the prison law library and submits on such forms an amended petition by writing on such habeas form the words "Amended Petition" and filling in this cause number (2:01-CV-0040) and completing such habeas petition as to disciplinary case number 20010000802. Petitioner shall specifically address in his amended petition whether and to what extent he lost any previously earned good time credits as a result of that disciplinary case and shall set forth his allegations as to why such disciplinary finding should be set aside.
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 by certified mail, return receipt requested.
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 arid 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).