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Flenteroy v. Davis

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

April 12, 2019

CHARLES FLENTEROY, a/k/a Charlie Flentroy, 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 an April 2018 prison disciplinary ruling wherein he lost 30 days previously accrued good time credits as punishment.[1] At the time he filed his habeas application, petitioner was incarcerated at the Clements Unit in Potter County, Texas.

         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 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.

         RECOMMENDATION

         It is 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 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 12, 2019.

         * 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 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] 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 ...


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