Opinion
Civil Action No. 4-03-CV-739-Y
November 13, 2003
FINDINGS, CONCLUSIONS, AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND NOTICE AND ORDER
This cause of action was referred to the United States Magistrate Judge pursuant to the provisions of 28 U.S.C. § 636(b), as implemented by an order of the United States District Court for the Northern District of Texas. The Findings, Conclusions, and Recommendation of the United States Magistrate Judge are as follows:
I. FINDINGS AND CONCLUSIONS A. NATURE OF THE CASE
This is a petition for writ of habeas corpus by a state prisoner under 28 U.S.C. § 2254.
B. PARTIES
Petitioner Larry James Treakle, TDCJ-CJD #840738, is in custody of the Texas Department of Criminal Justice, Correctional Institutions Division, and is presently incarcerated in the Stiles Unit in Beaumont, Texas.
Respondent Douglas Dretke is the Director of the Texas Department of Criminal Justice, Correctional Institutions Division (TDCJ).
C. FACTUAL AND PROCEDURAL HISTORY
Treakle is confined in TDCJ as a result of a Tarrant County conviction for indecency with a child by contact. (Resp't Answer, Ex. A.) By the instant habeas petition, Treakle challenges various disciplinary proceedings conducted at the Stiles Unit in Beaumont, Texas, resulting in commissary, cell, and/or contact visitation restrictions and a reduction in time-earning classification from S3 to S4. (Id. Ex. B.)Treakle filed this federal petition for writ of habeas corpus in the United States District Court for the Eastern District of Texas, Beaumont Division, on June 1, 2003. By order dated June 9, 2003, the case was transferred to this court although Treakle is not confined in this district and the disciplinary proceedings did not take place in this district. Dretke has filed an answer with supporting documentation, arguing that the instant petition fails to state a basis for federal habeas relief. Treakle has filed a reply.
A pro se habeas petition is filed when the petition is delivered to prison authorities for mailing. Spotville v. Cain, 149 F.3d 374, 377 (5th Cir. 1998).
D. GROUNDS
Treakle appears to argue in two grounds that (1) the disciplinary proceedings were the result of "malicious prosecution," and (2) the punishment affects his projected release date. (Pet. at 7.)
E. RULE 5 STATEMENT
Dretke has not addressed whether Treakle has properly exhausted his administrative remedies, reserving the right to do so in the event this petition is not dismissed as failing to state cognizable claims under § 2254. (Resp't Answer at 1-2.)
F. DISCUSSION
A. "Malicious Prosecution "Under his first ground, Treakle's supporting facts, as set forth in the petition, are incoherent as they relate to his claim of "malicious prosecution." (Pet. at 7.) He states: "hi the following 2001029697, 2001139703, 20010183280, and 20030232967, there has been no disciplinary case that has been in a finding of guilt." In Treakle's answer to interrogatories he also alludes to the fact that "a prison inmate has no constitutionally guaranteed immunity from being falsely or wrongly of conduct which may result in the deprivation of a protected liberty interest." (Pet'r Answer to Interrogatories at 7.) Having reviewed his pleadings in full, Treakle does not elaborate further regarding the details of this claim. Consequently, Treakle has not presented a sufficient factual basis for habeas relief under ground one.
B. Punishment
Under his second ground, Treakle appears to argue that due to the disciplinary infractions and the resultant punishment, his projected mandatory supervision release date has been extended. (Pet. at 7; Pet'r Answer to Interrogatories at 6-7.) A state prisoner seeking federal habeas review pursuant to § 2254 must assert a violation of a federal constitutional right to be entitled to such relief. See Lowery v. Collins, 988 F.2d 1364, 1367 (5th Cir. 1993). This case does not involve the loss of good conduct time. To the extent then the disciplinary proceedings resulted only in cell restrictions, loss of commissary and contact visitation privileges, and a reduction in Treakle's time-earning status, which do not impact the fact or duration of confinement, ground two does not raise a federal constitutional question. See Malchi v. Thaler, 211 F.3d 953, 958-59 (5th Cir. 2000); Madison v. Parker, 104 F.3d 765, 768 (5th Cir. 1997); Luken v. Scott, 71 F.3d 192, 193 (5th Cir. 1995); Clark v. Woods, No. 7:99-CV-173-R, 2001 WL 123668, at *2 (N.D. Tex. Jan. 16, 2001) (not designated for publication).
In conclusion, Dretke's assertion appears correct. The instant petition fails to state a claim that is cognizable under federal habeas review. Accordingly, Treakle is not entitled to habeas corpus relief.
II. RECOMMENDATION
Treakle's petition for writ of habeas corpus should be denied.
III. NOTICE OF RIGHT TO OBJECT TO PROPOSED FINDINGS, CONCLUSIONS AND RECOMMENDATION AND CONSEQUENCES OF FAILURE TO OBJECT
Under 28 U.S.C. § 636(b)(1), each party to this action has the right to serve and file specific written objections in the United States District Court to the United States Magistrate Judge's proposed findings, conclusions, and recommendation within ten (10) days after the party has been served with a copy of this document. The court is extending the deadline within which to file specific written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation until December 4, 2003. The United States District Judge need only make a de novo determination of those portions of the United States Magistrate Judge's proposed findings, conclusions, and recommendation to which specific objection is timely made. See 28 U.S.C. § 636(B)(1). Failure to file by the date stated above a specific written objection to a proposed factual finding or legal conclusion will bar a party, except upon grounds of plain error or manifest injustice, from attacking on appeal any such proposed factual finding or legal conclusion accepted by the United States District Judge. See Douglass v. UnitedServs. Auto. Ass'n, 79 F.3d 1415 , 1428-29 (5th Cir. 1996) (en banc op. on reh'g); Carter v. Collins, 918 F.2d 1198, 1203 (5th Cir. 1990).
IV. ORDER
Under 28 U.S.C. § 636, it is ORDERED that each party is granted until December 4, 2003, to serve and file written objections to the United States Magistrate Judge's proposed findings, conclusions, and recommendation. It is further ORDERED that if objections are filed and the opposing party chooses to file a response, a response shall be filed within seven (7) days of the filing date of the objections.It is further ORDERED that the above-styled and numbered action, previously referred to the United States Magistrate Judge for findings, conclusions, and recommendation, be and hereby is returned to the docket of the United States District Judge.