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Robinson v. Davis

United States District Court, N.D. Texas, Amarillo Division

February 27, 2018

RUSSELL ROBINSON, JR., 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

          LEE ANN RENO, UNITED STATES MAGISTRATE JUDGE.

         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 300 days previously accrued good time credits as punishment.[1] Petitioner is presently incarcerated at the Clements Unit in Potter County, Texas pursuant to an Ellis County conviction for the felony offense of continued violence against a family member and the resultant 99-year sentence assessed therein on July 18, 2014. State v. Robinson, No. 38602CR.

         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 concedes he is not eligible for release on mandatory supervision.

         Petitioner's current confinement for his conviction for the offense of continued violence against a family member does not make him ineligible for release to mandatory supervision; however, it is his 1988 conviction for attempted murder with a deadly weapon that makes him ineligible. See Roberson v. Dir., TDCJ-CID, 6:08CV324, 2008 WL 5412383, at *1 (E.D. Tex. Dec. 29, 2008) (Under Texas law, the law in effect at the time of the holding conviction governs eligibility for release on mandatory supervision).

         The law in effect at the time of petitioner's holding conviction is the date he committed the offense i.e. November 14, 2013. See Ex Parte Keller, 173 S.W.3d 492, 495 (Tex.Crim.App.2005). On that date, the law in effect held an inmate may not be released to mandatory supervision if the inmate has been previously convicted of an offense with a deadly weapon finding. See Texas Gov't Code § 508.149 (a)(1)(2013). Petitioner's previous conviction for attempted murder with a deadly weapon therefore disqualifies him for release to mandatory supervision. Consequently, for the foregoing reasons, petitioner's habeas application should be DENIED.

         RECOMMENDATION

         It is 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 RUSSELL ROBINSON, JR., 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.

         * 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 ...


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