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
ANTONIO DUDLEY has filed with this Court a Petition for a
Writ of Habeas Corpus by a Person in State Custody
challenging a state prison disciplinary ruling. [ECF 9]. 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 Question 16 of his form
habeas application, petitioner advises he is eligible for
release on mandatory supervision. [ECF 9 at 5]. However, on
February 27, 2019, respondent filed an Answer arguing
petitioner's habeas corpus application should be
dismissed with prejudice because petitioner is not, in fact,
eligible for mandatory supervised release. [ECF 18].
October 8, 1989, petitioner was convicted in the
208th Judicial District Court of Harris County,
Texas of the first degree felony offense of attempted murder.
State v. Dudley, No. 534, 058 [ECF 15-1 at 3]. In
response to Question 15 of his form habeas application,
petitioner states that for his original conviction, there was
not a judicial finding that he used or exhibited a deadly
weapon during the commission of his original offense. [ECF 9
at 5]. However, a Commitment Inquiry submitted by respondent
reflects there was, in fact, an affirmative deadly weapon
finding in petitioner's judgment of conviction. [ECF 15-1
at 3]. In a post-answer pleading filed March 19, 2019,
petitioner does not dispute that there was an affirmative
deadly weapon finding in his original judgment of conviction,
nor does he otherwise address respondent's argument that
as a result of such a finding and his ineligibility for
release to mandatory supervision, that petitioner's
claims cannot provide a basis for federal habeas corpus
relief. [ECF 17].
mandatory supervision eligibility statute in effect when
petitioner committed his attempted murder
offense on June 18, 1989 stated “[a]
prisoner may not be released to mandatory supervision if the
prisoner is serving for an offense and the judgment for the
offense contains an affirmative [deadly weapon] finding under
Subdivision (2), Subsection (a), Section 3g, Article 42.12,
of this code . . . .” Tex. Code Crim. Proc. art. 42.18
§ 8(c) (1989). Based on the record submitted by
respondent, it appears the judgment for petitioner's
holding conviction contained an affirmative deadly weapon
finding rendering petitioner ineligible for release to
mandatory supervision. As petitioner is not eligible for
mandatory supervised release as a result of the deadly weapon
finding made in relation to his attempted murder conviction,
he may not challenge a prison disciplinary proceeding by way
of a federal petition for a writ of habeas corpus and is not
entitled to any federal habeas corpus relief. See
Malchi, 211 F.3d at 958. Petitioner's habeas
application must 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 ANTONIO DUDLEY 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 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.