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Henderson v. Davis

United States District Court, W.D. Texas, Austin Division

June 16, 2017

ROGER WALLACE HENDERSON
v.
LORIE DAVIS

          THE HONORABLE LEE YEAKEL UNITED STATES DISTRICT JUDGE.

          REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE

          ANDREW W. AUSTIN UNITED STATES MAGISTRATE JUDGE.

         The Magistrate Judge submits this Report and Recommendation to the District Court pursuant to 28 U.S.C. §636(b) and Rule 1(e) of Appendix C of the Local Court Rules of the United States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to United States Magistrate Judges.

         Before the Court are Petitioner's Application for Habeas Corpus Relief under 28 U.S.C. § 2254 (Document 1); Respondent's Answer (Document 8); and Petitioner's response (Document 14). Petitioner, proceeding pro se, has paid the filing fee for his application. For the reasons set forth below, the undersigned finds that Petitioner's application for writ of habeas corpus should be dismissed.

         I. STATEMENT OF THE CASE

         A. Petitioner's Criminal History

         According to Respondent, the Director has custody of Petitioner pursuant to a judgment and sentence of the 21st Judicial District Court of Bastrop County, Texas in cause number 7976. Petitioner was charged with and pleaded guilty to burglary of a building. On July 29, 1993, pursuant to a plea bargain, the trial court sentenced Petitioner to 25 years' imprisonment.

         On October 12, 2000, Petitioner was released on parole. His parole was revoked on October 4, 2004, and Petitioner was returned to prison. On March 29, 2011, Petitioner was released on parole. His parole was revoked on October 23, 2015. Petitioner did not receive street-time credit for the time he was on parole, because he did not meet his mid-point calculation dates.

         B. Petitioner's Grounds for Relief

         Petitioner raises the following grounds for relief:

1. Petitioner's parole officer was insubordinate when he initially charged Petitioner with failing to report and then later claimed Petitioner was being charged with failing to reschedule his appointment. Stated differently, Petitioner was not provided proper notice when the alleged parole violation of failing to report was later changed to failing to reschedule his appointment with the parole officer;
2. After his parole was revoked in 2004, he was illegally denied street-time credit;
3. After his parole was revoked in 2015, he was illegally denied street-time credit; and
4. Failure to return his previously earned good time credits upon his return to prison in 2015 violated the Ex Post Facto Clause.

         It is not clear whether Petitioner is also attempting to raise claims under 42 U.S.C. § 1983. He includes in his request for relief a demand for monetary damages. However, that request ...


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