Opinion
2:18-CV-138-D
07-25-2018
JEREMIAH EZEKIAL THOMAS, Petitioner, v. LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.
FINDINGS , CONCLUSIONS AND RECOMMENDATION TO DENY PETITION FOR A WRIT OF HABEAS CORPUS
Petitioner has filed with this Court a Petition for a Writ of Habeas Corpus by a Person in State Custody challenging a prison disciplinary ruling wherein petitioner lost 45 days previously accrued good time credits as punishment. Petitioner is presently incarcerated at the Clements Unit in Potter County, Texas pursuant to three (3) Harris County convictions for the offenses of aggravated robbery with a deadly weapon, and the 35-year sentences assessed therein on January 27, 1988. State v. Thomas, Nos. 490906, 490907, and 490909.
Other punishment petitioner was assessed in the disciplinary proceeding merely constituted changes in the conditions of his confinement and does not implicate the Due Process Clause of the United States Constitution as required for review in a federal habeas corpus proceeding. See Sandin v. Conner, 515 U.S. 472, 478 (1995); Madison v. Parker, 104 F.3d 765, 767 (5
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 release and have received a punishment sanction that included forfeiture of previously accrued good-time credits. See Malchi v. Thaler, 211 F.3d 953, 958 (5th Cir. 2000). In his habeas application, in response to Question 16 of the form, petitioner states he is eligible for release on mandatory supervision; however, in response to Question 15, he acknowledges that his convictions include a finding that he used or exhibited a deadly weapon. [ECF 3 at 5]. Review of the online Offender Information Detail maintained by the Texas Department of Criminal Justice confirms that petitioner is incarcerated pursuant to three aggravated robbery with a deadly weapon convictions and that his projected release date is his maximum sentence date, which is a confirmation of his ineligibility for mandatory supervised release.
Since September 1996, an inmate may not be released to mandatory supervision if the inmate has been previously convicted of aggravated robbery. See Tex. Code Crim. Proc. art. 42.18 § 8(c)(10) (1996); currently Texas Gov't Code § 508.149 (a)(12)(2018). As petitioner is not eligible for mandatory supervised release, he may not challenge a prison disciplinary proceeding by way of a federal petition for a writ of habeas corpus. See Malchi, 211 F.3d at 958. Petitioner's habeas application should be DENIED.
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 JEREMIAH EZEKIAL THOMAS be DENIED.
INSTRUCTIONS FOR SERVICE
The United States District Clerk is directed to send a copy of these Findings, Conclusions and Recommendation to each party by the most efficient means available.
IT IS SO RECOMMENDED.
ENTERED July 25, 2018.
/s/_________
LEE ANN RENO
UNITED STATES MAGISTRATE JUDGE
* NOTICE OF RIGHT TO OBJECT *
Any party may object to these proposed findings, conclusions and recommendation. In the event parties wish to object, they are hereby NOTIFIED that the deadline for filing objections is fourteen (14) days from the date of filing as indicated by the "entered" date directly above the signature line. Service is complete upon mailing, Fed. R. Civ. P. 5(b)(2)(C), or transmission by electronic means, Fed. R. Civ. P. 5(b)(2)(E). Any objections must be filed on or before the fourteenth (14th) day after this recommendation is filed as indicated by the "entered" date. See 28 U.S.C. § 636(b); Fed. R. Civ. P. 72(b)(2); see also Fed. R. Civ. P. 6(d).
Any such objections shall be made in a written pleading entitled "Objections to the Findings, Conclusions and Recommendation." Objecting parties shall file the 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 shall bar an aggrieved party, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings, legal conclusions, and recommendation set forth by the Magistrate Judge and accepted by the district court. See Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996) (en banc), superseded by statute on other grounds, 28 U.S.C. § 636(b)(1), as recognized in ACS Recovery Servs., Inc. v. Griffin, 676 F.3d 512, 521 n.5 (5th Cir. 2012); Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5th Cir. 1988).
th Cir. 1997).