UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

JOHNNY FORSYTH, SR.,

Petitioner,

v. No. 4:22-cv-0860-P

BOBBY LUMPKIN, DIRECTOR,

TDCJ-CID,

Respondent.

OPINION AND ORDER

Came on for consideration the petition of Johnny Forsyth, Sr., under 

28 U.S.C. § 2254 for writ of habeas corpus. The Court, having considered 

the petition, the response, the record, and applicable authorities, 

concludes that the petition must be DENIED.

BACKGROUND

Petitioner is serving a three-year sentence for possession of a 

controlled substance, namely, methamphetamine, of more than one but 

less than four grams, imposed in Case No. 1666122D in the 396th 

Judicial District Court, Tarrant County, Texas. ECF No. 3 at 1; ECF No. 

14-10 (SHCR-03) at 5–7. He challenges the denial of release to 

discretionary mandatory supervision (“DMS”), saying that his rights to 

Due Process were violated. ECF No. 3 at 3.

On February 17, 2022, Petitioner received notice that he was going 

to be considered for DMS and that he had thirty days in which to submit 

any additional information he wanted the Board of Pardons and Paroles 

to consider in making its decision. ECF No. 13, Ex. A. On May 12, 2022, 

the Board of Pardons and Paroles denied Petitioner’s release to DMS, 

listing a number of reasons for its decision. ECF No. 4, Ex. B. On May 

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31, 2022, Petitioner filed his state application for writ of habeas corpus.1

ECF No. 14-10 (SHCR-03) at 10. On September 7, 2022, the Court of 

Criminal Appeals of Texas denied the petition without written order on 

findings of the trial court without hearing and on the Court’s 

independent review of the record. ECF No. 14-11 (SHCR-03) Action 

Taken. 

APPLICABLE LEGAL STANDARDS

A. Section 2254

A writ of habeas corpus on behalf of a person in custody under a state 

court judgment shall not be granted with respect to any claim that was 

adjudicated on the merits in state court proceedings unless the 

petitioner shows that the prior adjudication:

(1) resulted in a decision that was contrary to, or involved 

an unreasonable application of, clearly established federal 

law, as determined by the Supreme Court of the United 

States; or

(2) resulted in a decision that was based on an 

unreasonable determination of the facts in light of the 

evidence presented in the State court proceedings.

28 U.S.C. § 2254(d). A decision is contrary to clearly established federal 

law if the state court arrives at a conclusion opposite to that reached by 

the United States Supreme Court on a question of law or if the state 

court decides a case differently than the Supreme Court has on a set of 

materially indistinguishable facts. Williams v. Taylor, 529 U.S. 362, 

405–06 (2000); see also Hill v. Johnson, 210 F.3d 481, 485 (5th Cir. 

2000). A state court decision will be an unreasonable application of 

clearly established precedent if it correctly identifies the applicable rule 

but applies it objectively unreasonably to the facts of the case. Williams, 

529 U.S. at 407–09; see also Neal v. Puckett, 286 F.3d 230, 236, 244–46 

(5th Cir. 2002) (en banc) (focus should be on the ultimate legal 

conclusion reached by the state court and not on whether that court 

considered and discussed every angle of the evidence). 

1 Like Respondent, the Court relies on the date the petition was received 

for filing, since the petition itself only bore a date of May 2022. ECF No. 14-10 

(SHCR-03) at 18.

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A determination of a factual issue made by a state court is presumed 

to be correct. 28 U.S.C. § 2254(e)(1). The presumption of correctness 

applies to both express and implied factual findings. Young v. Dretke, 

356 F.3d 616, 629 (5th Cir. 2004); Valdez v. Cockrell, 274 F.3d 941, 948 

n.11 (5th Cir. 2001). Absent express findings, a federal court may infer 

fact findings consistent with the state court’s disposition. Marshall v. 

Lonberger, 459 U.S. 422, 433 (1983). Thus, when the Court of Criminal 

Appeals of Texas denies relief without written order, such ruling is an 

adjudication on the merits that is entitled to this presumption. Ex parte 

Torres, 943 S.W.2d 469, 472 (Tex. Crim. App. 1997). The petitioner has 

the burden of rebutting the presumption of correctness by clear and 

convincing evidence. 28 U.S.C. § 2254(e)(1); Hill, 210 F.3d at 486. 

In making its review, the Court is limited to the record that was 

before the state court. 28 U.S.C. § 2254(d)(2); Cullen v. Pinholster, 563 

U.S. 170, 181 (2011).

B. Mandatory Supervision

Texas prisoners have a limited liberty interest in release to DMS. 

Board of Pardons v. Allen, 482 U.S. 369, 377 (1987); Ex parte Geiken, 28 

S.W.3d 553, 558 (Tex. Crim. App. 2000) (en banc). That liberty interest 

entitles an inmate to notice of an upcoming review and a meaningful 

opportunity to be heard. Ex parte Retzlaff, 135 S.W.3d 45, 50 (Tex. Crim. 

App. 2004). To be meaningful, the notice must be given at least thirty 

days in advance of the review so that the inmate will have an 

opportunity to submit any information deemed relevant to the decision. 

Id. A meaningful opportunity to be heard does not require a live hearing. 

Geiken, 28 S.W.3d at 560. If release is denied, due process requires 

notice of the respect in which the inmate falls short of being granted 

release. Id. It does not require the Board to provide the particulars in 

the inmate’s file upon which it rested its decision. Greenholtz v. Inmates 

of the Neb. Penal & Corr. Complex, 442 U.S. 1, 15–16 (1979); Geiken, 28 

S.W.3d at 560.

ANALYSIS

In this case, the record reflects that Petitioner was given timely 

notice and an opportunity to submit additional information to the Board 

before it made its DMS decision in his case. ECF No. 13, Ex. A. And, 

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Petitioner was given notice of the reasons that he was not granted 

DMS.2 ECF No. 4, Ex. B. He received all the process he was due. 

CONCLUSION

For the reasons discussed, the petition is DENIED.

Further, for the reasons discussed herein, pursuant to 28 U.S.C. 

§ 2553(c), a certificate of appealability is DENIED.

SO ORDERED on this 12th day of January 2023.

2 Petitioner complains that the notice of decision erroneously states that 

only one component of the list of reasons was required to support the denial, 

whereas the statute governing DMS requires that it be granted unless (1) the 

inmate’s accrued good conduct time was not an accurate reflection of his 

potential for rehabilitation and (2) the inmate’s release would endanger the 

public. ECF No. 4 at 11 (quoting TEX. GOV’T CODE § 508.149 (b)(1)-(2)). Both of 

those factors were found in his case. 

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