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 an April
2018 prison disciplinary ruling wherein he lost 30 days
previously accrued good time credits as
punishment. At the time he filed his habeas
application, petitioner was incarcerated at the Clements Unit
in Potter County, Texas.
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 response to Questions 15
and 16 of his habeas application, petitioner avers there was
a finding in his original conviction that he used or
exhibited a deadly weapon and that he is not eligible for
release on mandatory supervision. Review of the online
Offender Information Detail maintained by the Texas
Department of Criminal Justice reflects petitioner is serving
a sentence for robbery. The mandatory supervision statute in
effect when petitioner committed his robbery offense on
November 29, 2001 stated “[a]n inmate may not be
released to mandatory supervision if the inmate is serving a
sentence for or has been previously convicted of . . . an
offense for which the judgment contains an affirmative
[deadly weapon] finding under Section 3g(a)(2), Article
42.12, Code of Criminal Procedure . . . [or] a second degree
felony under Section 29.02, [Texas] Penal Code
[robbery].” Texas Gov't Code § 508.149(a)(1),
(11) (2001). Petitioner is serving a sentence for robbery and
has indicated in his habeas application that his conviction
contained an affirmative deadly weapon finding. 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.
the RECOMMENDATION of the undersigned United States
Magistrate Judge to the Senior United States District Judge
that the petition for a writ of habeas corpus filed by
petitioner CHARLES FLENTEROY a/k/a Charlie Flentroy be
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 12, 2019.
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 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.
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 ...