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Johnson v. Davis

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

April 6, 2018

ANSEL W. JOHNSON, [1] 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 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 30 days previously accrued good time credits as punishment.[2] Petitioner is presently incarcerated at the Jordan Unit in Gray County, Texas pursuant to two (2) Tarrant County convictions for the offenses of possession of controlled substances, and the 4-year sentences assessed therein on May 4, 2017. State v. Johnson, Nos. 1477046D, 1478133D.

         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 acknowledges he is not eligible for release on mandatory supervision. [ECF 3 at 5]. Review of the online TDCJ Offender Information Detail reflects petitioner was twice convicted of aggravated robbery with a deadly weapon on January 29, 1988. Since September 1996, an inmate may not be released to mandatory supervision if the inmate has been previously convicted of aggravated robbery. See Texas Code of Crim. Proc. art. 42.18 § 8(c)(10) (1996); currently Texas Gov't Code § 508.149 (a)(12)(2017). 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. 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 ANSEL W. JOHNSON 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. ENTERED April 6, 2018.

         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 grounds, 28 U.S.C. § 636(b)(1), as recognized in ACS Recovery Servs., Inc. v. Griffin, 676 F.3d 512, 521 n.5 (5th Cir. 2012); Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5th Cir. 1988).

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Notes:

[1] Petitioner has represented to the Court that his name is “Ansel Wre Johnson.” A review of the Texas Department of Criminal Justice website lists petitioner as “Angel W. Johnson.” The Clerk docketed this case using the name provided by petitioner and the undersigned will also use this name.

[2]Other punishment petitioner was assessed in the disciplinary proceeding merely constituted changes in the conditions of his confinement and does not implicate the Due Process Clause of the United States Constitution as required for review in a federal habeas corpus proceeding. See Sandin v. Conner, 515 U.S. 472, 478, 115 S.Ct. 2293, ...


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