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Lampkin v. Davis

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

March 8, 2018

ESAW LAMPKIN, 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

         Came for consideration the Petition for a Writ of Habeas Corpus by a Person in State Custody filed by petitioner ESAW LAMPKIN. For the following reasons, petitioner's habeas application should be DENIED.

         I. STATEMENT OF THE CASE

         Petitioner is confined in the Texas Department of Criminal Justice, Correctional Institutions Division pursuant to an August 25, 2016 judgment and 35-year sentence for the offense of driving while intoxicated, third or more, out of the 124th District Court of Gregg County, Texas. See State v. Lampkin, No. 42, 897-B. Further recitation of the procedural history and collateral review proceedings of petitioner's case are not relevant to the proceedings challenged herein.

         II. PETITIONER'S ALLEGATIONS

         Petitioner contends he is being held in violation of the Constitution and laws of the United States for the following reasons:

1. The Board of Pardons and Paroles violated his Due Process and Equal Protection rights by denying him access to an in-prison DWI treatment program afforded to similarly situated prisoners;
2. The Board of Pardons and Paroles violated his Due Process and Equal Protection rights when it failed to consider his Offender's Rehabilitation Education Participation that reduced his risk factor against public safety;
3. The Board of Pardons and Paroles denied his parole in violation of petitioner's Fifth Amendment right against the risk of double jeopardy; and
4. The Board of Pardons and Paroles violated his Due Process and Equal Protection rights because petitioner was not allowed to be present and speak at his hearing.

         III. RESPONDENT'S ANSWER

         On February 28, 2018, respondent filed her answer asserting petitioner's habeas application should be dismissed because his parole denial claims are not cognizable on federal habeas review. In her response, respondent fully and accurately briefed statutory and case law regarding the August 17, 2017 denial of petitioner's release to parole due to his criminal history, substance abuse and past behavior while on parole. [ECF 18 at 3-5]. Petitioner did not file a reply to respondent's answer.

         IV. MERITS

         Petitioner contends the Board of Pardons and Paroles has improperly denied him parole. He requests to be released to an in-prison DWI treatment program and, after successful completion of that program, to be immediately released to parole.[1] Petitioner has failed to assert a claim cognizable in federal habeas corpus proceedings. “Parole” is the discretionary and conditional release of an eligible inmate sentenced to the institutional division so that the inmate may serve the remainder of his sentence under the supervision of the pardons and paroles division. Tex. ...


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