United States District Court, N.D. Texas, Amarillo Division
FINDINGS, CONCLUSIONS AND RECOMMENDATION TO DENY
PETITION FOR A WRIT OF HABEAS CORPUS
ANN RENO UNITED STATES MAGISTRATE JUDGE.
has filed with this Court a Petition for a Writ of Habeas
Corpus by a Person in State Custody challenging a state
prison disciplinary ruling wherein he lost thirty (30) days
previously accrued good time credits as
punishment. Petitioner is presently incarcerated at
the Neal Unit in Potter County, Texas pursuant to three (3)
Liberty County, Texas felony convictions (one count of
possession of a controlled substance, and two counts of theft
of property more than $1, 500 but less than $20, 000,
enhanced), and the concurrent 20-year sentences assessed
therein on July 10, 2014. State v. Elam, Nos.
CR31060, CR31061, and CR 31062.
January 10, 2018, respondent filed an Answer asserting
petitioner is not eligible for mandatory supervised
release; therefore, his petition fails to state a claim for
which federal habeas relief can be granted.
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 indicates he
is eligible for release on mandatory supervision. However,
respondent has submitted petitioner's TDCJ commitment
records reflecting petitioner was convicted of delivery of a
controlled substance in a drug free zone on November 12,
1999. Since September 1996, Texas law stated an inmate may
not be released to mandatory supervision if the inmate has
been previously convicted of a felony for which the
punishment was increased because the offense was committed in
a drug free zone. See Texas Code of Crim. Proc. art.
42.18 § 8(c)(12) (1996); currently Texas
Gov't Code § 508.149 (a)(14)(2018).
mandatory supervision statute was also in effect in April
2013 and July 2014 when petitioner committed the offenses for
which he is currently confined. Consequently, petitioner is
not eligible for release to mandatory supervision. 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. Thus, petitioner's habeas
application should be DENIED.
the RECOMMENDATION of the undersigned United States
Magistrate Judge to the United States Senior District Judge
that the petition for a writ of habeas corpus filed by
petitioner JERRY O'NEAL ELAM be DENIED.
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.
NOTICE OF RIGHT TO OBJECT *
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).
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 ...