Opinion
2:03-MC-0002
October 2, 2003
REPORT AND RECOMMENDATION TO DENY PETITIONER'SMOTION FOR LEAVE TO FILE
Came this day for consideration the above-entitled motion filed by petitioner MICHAEL LOU GARRETT on April 2, 2003. By his pleading, petitioner requests leave of Court to file a Petition for a Writ of Habeas Corpus by a Person in State Custody. Petitioner requests leave to file a habeas petition because of sanctions imposed against him which prohibit his filing any new civil filings, whether sounding in habeas or in any other area of civil law, unless leave to file is first obtained from either a United States Magistrate Judge or from a United States District Judge.
In the proposed petition attached to his motion for leave, petitioner does not challenge his state court conviction, nor does he challenge any loss of good time credits. In fact, the TDCJ-ID disciplinary proceeding petitioner references in his petition has been overturned and there is no existing disciplinary sanction against petitioner. Instead, petitioner requests the Court order respondent to expunge, from petitioner's permanent inmate record, any "documentary evidence" of the disciplinary charge and proceeding.
The undersigned notes that even if petitioner were challenging the disciplinary proceeding referenced in his petition, habeas corpus relief would not be available because petitioner did not lose any accrued good time in that proceeding. In order to pursue a federal cause of action by way of a petition for writ of habeas corpus challenging a prison disciplinary adjudication, a petitioner must, at a minimum, be eligible for mandatory release and have received a punishment sanction which included forfeiture of previously earned good time credits. See Malchi v. Thaler, 211 F.3d 953, 958 (5th Cir. 2000).
Petitioner has not demonstrated a constitutional deprivation actionable by way of habeas relief because of any failure on respondent part to expunge his permanent inmate record of any evidence of the disciplinary charge and proceeding. Specifically, petitioner has failed to show the existence of a constitutional right to the omission of any negative inmate conduct from the inmate's records when such conduct did not result in a standing disciplinary sanction. The fact that petitioner's prison file reflects that a disciplinary case was filed but later overturned in not actionable and would not be inaccurate. Further, habeas relief is appropriate only to challenge the constitutional duration of one's physical confinement. Petitioner claims "his permanent file is reviewed and considered both by TDCJ and the Parole Board and, as a result, can and is adversely affecting both administrative decisions and parole decisions regarding his sentence." This claim is too speculative to merit habeas relief. Petitioner has not, and cannot, show that the expungement of any evidence of the disciplinary charge from his record "would automatically shorten his sentence or lead to his immediate release." See Carson v. Johnson, 112 F.3d 818, 821 (5th Cir. 1997); cf. Luken v. Scott, 71 F.3d 192 (5th Cir. 1995), cert. denied sub. nom, Luken v. Johnson, 517 U.S. 1196, 116 S.Ct. 1690, 134 L.Ed.2d 791 (1996) (the possibility that an inmate's time-earning class "would affect when he was ultimately released from prison 'is simply too attenuated to invoke the procedural guarantees of the Due Process Clause'" because the inmate's time-earning class will not "inevitably affect the duration" of the inmate's sentence). Moreover, petitioner appears to actually be seeking mandamus relief, viz., the compulsion of the expungement from his inmate records of any evidence of his disciplinary charge. A federal court lacks the general power to issue writs of mandamus to direct state entities in the performance of their duties where mandamus is the only relief sought. Moye v. Clerk, DeKalb County Superior Court, 474 F.2d 1275, 1276 (5th 1973).
As this Court cannot grant petitioner the relief he seeks in the habeas application attached to his motion for leave, it would serve no purpose to allow petitioner to file said petition. The petition would be subject to immediate dismissal.
It is the opinion of the undersigned that petitioner should not be granted leave to file a habeas petition, since any such petition would be subject to summary dismissal for the above-stated reasons.
RECOMMENDATION
It is the RECOMMENDATION of the United States Magistrate Judge to the United States District Judge that the Motion for Leave to File filed by petitioner MICHAEL LOU GARRETT be, in all things, DENIED.
INSTRUCTIONS FOR SERVICE and NOTICE OF RIGHT TO OBJECT
The United States District Clerk is directed to send a copy of this Report and Recommendation to petitioner utilizing the inmate correspondence card.
Any party may object to the proposed findings, conclusions, or recommendation 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). Any such objections shall be in the form of a written pleading entitled "Objections to Report and Recommendation," 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. Objecting parties shall file the written objections with the United States District Clerk and serve a copy of such objections on the Magistrate Judge and all other parties. A party's failure to timely file written objections to the proposed findings, conclusions, and recommendation contained in this report shall bar an aggrieved party, 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.