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Barnes v. Davis

United States District Court, S.D. Texas, Galveston Division

June 21, 2019

BERNARD KIRK BARNES, TDCJ # 01952319, Petitioner,
v.
LORIE DAVIS, Respondent.

          MEMORANDUM OPINION AND ORDER

          GEORGE C. HANKS JR. UNITED STATES DISTRICT JUDGE

         Petitioner 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.

         I. BACKGROUND

         Barnes 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 (available at https://offender.tdcj.texas.gov/OffenderSearch/index.jsp) (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 six months.

(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).

         Respondent 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 disciplinary case:

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).[1]

         Barnes 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 https://offender.tdcj.texas.gov/OffenderSearch/reviewDetail.action?sid=01950705&tdcj= 01952319&fullName=BARNES%2CBERNARD⢄) (last visited June 20, 2019).[2]

         Barnes 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).[3] 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, 11-12).

         Valdez's affidavit states that Barnes is not eligible for “discretionary mandatory supervision” because of his prior conviction for robbery by threat (Dkt. 10-1, at 3).[4] Barnes agrees that he is ineligible for mandatory supervision (Dkt. 1, at 5).

         II. LEGAL STANDARDS

         A. Pro ...


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