Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Downie v. Davis

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

October 8, 2019

MARCUS LANG DOWNIE, Petitioner,
v.
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

          FINDINGS, CONCLUSIONS AND RECOMMENDATION TO DISMISS PETITION FOR A WRIT OF HABEAS CORPUS

          LEE ANN RENO, UNITED STATES MAGISTRATE JUDGE

         Before the Court is a Petition for a Writ of Habeas Corpus by a Person in State Custody filed pro se by petitioner MARCUS LANG DOWNIE. [ECF 3]. At the time he initiated this federal habeas proceeding, petitioner was incarcerated at the Clements Unit in Potter County, Texas pursuant to a 3-year sentence assessed on March 28, 2016 for his conviction of the felony offense of possession of a controlled substance out of Nueces County, Texas. State v. Downie, No. 15-CR-0633-F.

         By his habeas application, petitioner does not challenge his holding conviction or sentence; rather, he challenges the “denial of parole/reinterview.” [ECF 3 at 2]. At the time of his filing, the online Offender Information Search website maintained by the Texas Department of Criminal Justice reflected the Texas Board of Pardons and Paroles (the “Parole Board”) denied petitioner parole on July 7, 2016[1] for the following reasons:

1D CRIMINAL HISTORY - THE RECORD INDICATES THAT THE OFFENDER HAS REPEATEDLY COMMITTED CRIMINAL EPISODES THAT INDICATE A PREDISPOSITION TO COMMIT CRIMINAL ACTS UPON RELEASE.
2D NATURE OF OFFENSE - THE RECORD INDICATES THE INSTANT OFFENSE HAS ELEMENTS OF BRUTALITY, VIOLENCE, ASSAULTIVE BEHAVIOR, OR CONSCIOUS SELECTION OF VICTIM'S VULNERABILITY INDICATING A CONSCIOUS DISREGARD FOR THE LIVES, SAFETY, OR PROPERTY OF OTHERS, SUCH THAT THE OFFENDER POSES A CONTINUING THREAT TO PUBLIC SAFETY.
3D DRUG OR ALCOHOL INVOLVEMENT - THE RECORD INDICATES EXCESSIVE SUBSTANCE USE INVOLVEMENT.
5D ADJUSTMENT DURING PERIODS OF SUPERVISION - THE RECORD INDICATES UNSUCCESSFUL PERIODS OF SUPERVISION ON PREVIOUS PROBATION, PAROLE, OR MANDATORY SUPERVISION THAT RESULTED IN INCARCERATION, INCLUDING PAROLE-IN-ABSENTIA.

         Petitioner appears to specifically claim he is being held unlawfully because respondent and/or the Parole Board did not follow the appropriate, required statutory procedures in considering his release to parole, in reconsidering the denial of his release to parole, and in scheduling petitioner's next parole review.[2] As relief in this federal habeas corpus proceeding, petitioner requested the Court order respondent or the Parole Board to (1) attempt “informal resolution” of petitioner's complaints; (2) grant petitioner emergency release to a mental health facility for rehabilitation, treatment and care for his drug addiction and mental illness; or (3) grant petitioner emergency release to parole because he had served 128% (or 27 ½ months flat and accrued good time) of his sentence.[3] [Id. at 7].

         In September 2019, it came to this Court's attention, through filings in numerous other cases initiated by petitioner that are pending in this Court, that petitioner had been released from custody to parole or as a result of his sentence being discharged. Consequently, on September 26, 2019, the Court issued an Order to Show Cause Why Case Should Not be Dismissed directing petitioner to show cause why his case should not be dismissed as moot because the relief petitioner seeks in this federal habeas corpus proceeding is no longer available. [ECF 15]. On October 4, 2019, the Court's Order was returned undelivered with the notations, “RTS” and “Discharged.” [ECF 16]. Inquiry to respondent's online website reflects petitioner is no longer confined in a TDCJ prison facility.

         As noted above, petitioner's only requested relief in this proceeding is an order from the Court requiring respondent or the Parole Board to attempt “informal resolution” of petitioner's complaints, or grant petitioner emergency release to a mental health facility or to parole. It appears to the Court that petitioner has received a parole review and has been released from incarcerated custody to parole, or has fully discharged his 3-year sentence. Consequently, the relief petitioner seeks in this federal habeas corpus proceeding is no longer available. Accordingly, the instant federal habeas corpus petition should be DISMISSED as moot.[4]

         Alternatively, petitioner's case should be dismissed for want of prosecution. Rule 41(b) of the Federal Rules of Civil Procedure allows a court to dismiss an action sua sponte for failure to prosecute or for failure to comply with the federal rules or any court order. Larson v. Scott, 157 F.3d 1030, 1031 (5th Cir. 1988). Petitioner has failed to apprise the Court of the status of his parole review, his actual release to parole or the discharge of his sentence, or that he has received the relief he was seeking in this proceeding. Moreover, petitioner has failed to file a change of address with the Court as required by the Local Civil Rules for the Northern District of Texas. See Civil Rule 1.1(c)(2), 83.13, 83.14. Such neglect also warrants dismissal.

         For the above reasons, petitioner's habeas corpus application should be DISMISSED.

         RECOMMENDATION

         It is the RECOMMENDATION of the United States Magistrate Judge to the United States District Judge that the petition for a writ of habeas corpus filed ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.