United States District Court, S.D. Texas, Galveston Division
MEMORANDUM OPINION AND ORDER
C. HANKS JR. UNITED STATES DISTRICT JUDGE
Bernard Kirk Barnes, an inmate in the custody of the Texas
Department of Criminal Justice-Correctional Institutions
Division (“TDCJ”), proceeds pro se and
in forma pauperis. Barnes filed a federal petition
for habeas corpus regarding his parole eligibility date (Dkt.
1). Respondent has filed an electronic copy of state court
records (Dkt. 9) and a motion for summary judgment (Dkt. 10).
Barnes has not responded to the motion, and the time to do so
has expired. Having considered the petition, the motion, the
applicable law, and all matters of record, the Court will
grant summary judgment for Respondent for
the reasons explained below.
is serving a ten-year sentence in TDCJ as a result of a 2014
conviction in Rockwall County for possession of a controlled
substance. See Offender Information Details
(last visited June 20, 2019). In these habeas proceedings,
Barnes seeks to challenge his “parole eligibility
date” (Dkt. 1, at 2, 5). He claims that TDCJ officials
have violated his due process rights in connection with his
eligibility for parole review:
Parole has a policy that an offender is not elig[i]ble for
parole if he or she has had a disciplinary case within the
last (6) months prior to the el[igibi]lity date. My last case
was June 26th 2017 however I appealed that disciplinary
conviction and the case was overturned with an option for
rehearing and was reheard on Oct 26, 2017. Now when I became
elig[i]ble for parole the unit parole officer is now saying
that he[']s going by the rehearing date of Oct 26th 2017
to make me inelig[i]ble for parole when Rule XIII(D)(2)
clearly state[s] the original date of disciplinary conviction
is the date used. To use the new date amounts to retaliating
against me because I appeared. I am s[upp]osed to be
elig[i]ble for a parole interview because I have not had a
disciplinary infraction in 8 months when the requirement is
(id. at 6). Barnes seeks an order from this Court
instructing the Board of Pardons and Paroles that he
“is in fact elig[i]ble to be interview[ed] for
parole” as part of a “yearly parole review”
because the date of his disciplinary infraction (June 26,
2017) rather than the rehearing date (October 26, 2017)
should be used for calculating the amount of time since his
last infraction (id. at 7).
has submitted an affidavit from Charley Valdez, a program
supervisor with TDCJ's Classification and Records
Department (Dkt. 10-1). Valdez reviewed the records for
Barnes and states that Barnes was reviewed and voted by the
Board of Pardons and Paroles on June 16, 2015; April 12,
2016; and February 10, 2017 (Dkt. 10-1, at 3). On October 28,
2017, Barnes was removed from parole review because of his
Pursuant to 37 Texas Administrative Code Section 145.3(4)(A),
on 10/28/2017, Offender Barnes was removed from parole review
because he had received a major disciplinary infraction, for
which he lost 300 days of good time, occurring on 06/26/2017.
The first hearing occurred on July 6, 2017; but, after
Offender Barnes filed a grievance, and his good time was
restored, the disciplinary case was reheard on 10/26/17.
Offender Barnes against lost 300 days of good time credit.
(Id. at 4) (citing Exhibits A and B).
filed his petition in this case on February 9, 2018. The
Board again reviewed Barnes on February 28, 2018 and denied
him release on parole (id.). Publicly available TDCJ
records indicate that on December 17, 2018, after Valdez
prepared his affidavit, Barnes again was denied parole and
that he is scheduled for his next review in December 2019.
SeeParole Review Information (available at
01952319&fullName=BARNES%2CBERNARD⢄) (last visited
June 20, 2019).
has filed 29 applications for post-conviction relief with the
Texas Court of Criminal Appeals, including three writs filed
since his 2014 conviction (WR-7, 589-27; WR-7, 589-28; WR-7,
589-29). However, all three recent writs challenge
his conviction and do not pertain to his parole eligibility
date or his 2017 disciplinary case. Barnes concedes that he
has not filed any petitions or applications in state court
challenging his parole eligibility date (Dkt. 1, at 5),
although he filed an administrative grievance with TDCJ and
was told that the issue was not grievable (id. at 5,
affidavit states that Barnes is not eligible for
“discretionary mandatory supervision” because of
his prior conviction for robbery by threat (Dkt. 10-1, at
Barnes agrees that he is ineligible for mandatory supervision
(Dkt. 1, at 5).