Holmes v. Dretke

Full title: REGINALD ROY HOLMES, Petitioner, v. DOUGLAS DRETKE, Director, Texas…

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

Date published: Mar 24, 2005

No. 2:05-CV-0038 (N.D. Tex. Mar. 24, 2005)

Opinion

No. 2:05-CV-0038.

March 24, 2005

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

CLINTON AVERITTE, Magistrate Judge

Petitioner has filed with this Court a petition for a writ of habeas corpus challenging a November 20, 2003 prison disciplinary proceeding and the resultant loss of 30 days previously earned good time credits. The disciplinary proceeding took place at the Preston E. Smith Unit in Dawson County, Texas. As of the date the instant habeas application was filed, petitioner remained incarcerated in the Smith 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 does not identify the conviction and sentence he is presently serving.¹ Petitioner acknowledges, however, that for his original conviction, there was a finding that he used or exhibited a deadly weapon and that he is not eligible for mandatory supervised release. While petitioner appears to have lost good time, petitioner is not eligible for mandatory supervised release due to his conviction which included a finding of a deadly weapon. See Tex. Gov't Code Ann. § 508.149(a)(1).

1 Inquiry to the records department of the Texas Department of Criminal Justice, Correctional Institutions Division reveals petitioner is serving a sentence assessed for his conviction of the felony offense of involuntary manslaughter with a deadly weapon.

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 REGINALD ROY HOLMES 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.