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 prison
disciplinary ruling wherein petitioner lost 300 days
previously accrued good time credits as
punishment. 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.
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.
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).
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.
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.
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 ...