Opinion
2:03-CV-0208
April 7, 2004
REPORT AND RECOMMENDATION TO DENY PETITION FOR A WRIT OF HABEAS CORPUS
Petitioner ANH VIET TRAN has filed with this Court a petition for a writ of habeas corpus challenging a December 12, 2002 prison disciplinary case. In his habeas application, petitioner does not identify the judgment and sentence pursuant to which he is in respondent's custody, however, petitioner avers he is eligible for mandatory supervised release.
In a prior habeas application filed by petitioner in this Court on January 11, 2001, Cause No. 2:01-CV-0022, petitioner challenged another prison disciplinary case. In that habeas application, petitioner advised the Court that he is not eligible for mandatory supervised release, having been convicted of capital murder resulting in a life sentence. On April 5, 2004, a custodian of records at the Texas Department of Criminal Justice, Correctional Institutions Division, confirmed that petitioner is serving a sentence for the conviction of the offense of capital murder and is ineligible for mandatory supervised release.
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 which included forfeiture of previously accrued good time credits. See Malchi v. Thaler, 211 F.3d 953, 958 (5th Cir. 2000). In this case, petitioner lost 695 days good time, however, petitioner isnot eligible for mandatory release due to his conviction of the capital felony offense of capital murder. See Tex. Gov't Code Ann. § 508.149(a)(3).
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 ANH VIET TRAN be DENIED.
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 utilizing the inmate correspondence card if petitioner's last known address is a prison unit, or by certified mail, return receipt requested, if petitioner has provided the Court with a non-institutional address.
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 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.