HAB54\DISCIP\R&R\BARRIENTEZ-262.DIS-RELEASED:2

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

JOSEPH ALEXANDER BARRIENTEZ, §

§

Petitioner, §

§

v. § 2:03-CV-0262

§

DOUGLAS DRETKE, Director, §

Texas Department of Criminal Justice, §

Correctional Institutions Division, §

§

Respondent. §

REPORT AND RECOMMENDATION

TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS

Before the Court is a Petition for a Writ of Habeas Corpus by a Person in State Custody

filed by petitioner JOSEPH ALEXANDER BARRIENTEZ wherein he challenges the results of

a prison disciplinary proceeding. For the reasons hereinafter set forth, it is the opinion of the

undersigned United States Magistrate Judge that the petition for a writ of habeas corpus should

be DISMISSED.

I.

STATE COURT CONVICTION

At the time this habeas petition was filed, petitioner was in the lawful custody of the

Texas Department of Criminal Justice, Correctional Institutions Division (TDCJ-CID), as a

result of a judgment and sentence out of the 25th Judicial District Court of Guadalupe County,

Texas. On June 5, 2002, in State v. Barrientez, No. 98-1318-CR, petitioner pleaded guilty to the

 

 Case 2:03-cv-00262-J Document 14 Filed 08/16/06 Page 1 of 6 PageID 139
1

Other punishment with which petitioner was assessed constituted changes in the conditions of petitioner’s

confinement and does not implicate the Due Process Clause of the United States Constitution. See Sandin v. Conner, 515 U.S.

472, 478, 115 S.Ct. 2293, 2297 (1995); Madison v. Parker, 104 F.3d 765, 767 (5th Cir. 1997).

HAB54\DISCIP\R&R\BARRIENTEZ-262.DIS-RELEASED:2 2

third degree felony offense of driving while intoxicated, and was sentenced to a term of

imprisonment of five (5) years and six (6) months. Further elaboration of the specifics of

petitioner’s state court conviction and any post-conviction proceedings are unnecessary as

petitioner challenges only the result of a prison disciplinary adjudication in this proceeding.

II.

DISCIPLINARY ADJUDICATION

On May 29, 2003, petitioner was found guilty of [participating in a] riot, a Level 1, Code

8.0 offense. Petitioner was punished with the forfeiture of 365 days previously accrued good

time credits.1

 Following the finding of guilt in the disciplinary proceeding, petitioner filed a Step

1 grievance which was denied on June 29, 2003. According to petitioner, he then filed a Step 2

grievance which was returned without being processed because the Step 1 documentation was

not attached. Petitioner avers he was then transferred from his unit and the time for filing a Step

2 grievance expired while he was in transit, prior to his refiling. On August 16, 2003, petitioner

filed the instant federal habeas corpus application challenging the disciplinary adjudication. 

III.

PETITIONER’S ALLEGATIONS

Petitioner contends his federal constitutional rights were violated with regard to the 

May 29, 2003 disciplinary proceeding in Case No. 20030264139 in the following respects:

1. There was insufficient evidence to support the finding of guilt; and

2. Petitioner was denied due process because he was denied the right to call

and question the charging officer as a witness.

 

 Case 2:03-cv-00262-J Document 14 Filed 08/16/06 Page 2 of 6 PageID 140
2

The Commitment Inquiry Information sheet provided by respondent for interpreting the codes of the Commitment

Inquiry on Cause No. 98-1318-CR states “MS:Y” – indicates Barrientez is eligible for mandatory supervision release.” The

Commitment Inquiry, however, indicates, “MS:N” for petitioner’s DWI offense which indicates petitioner is not eligible for

mandatory supervision release.

HAB54\DISCIP\R&R\BARRIENTEZ-262.DIS-RELEASED:2 3

IV.

ELIGIBILITY FOR MANDATORY SUPERVISED RELEASE

In order to challenge a state 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 release

and have received a punishment sanction which included forfeiture of previously accrued good

time credits. See Malchi v. Thaler, 211 F.3d 953, 958 (5th Cir. 2000). Respondent initially

contends that because the Board of Pardons and Paroles exercised its discretion in voting to deny

petitioner release to mandatory supervision on three (3) instances (August 6, 2002, November

18, 2002, and September 22, 2003), that petitioner is no longer eligible for release to mandatory

supervision. Respondent cites no authority for this proposition, but attaches a copy of an April

15, 2004 Commitment Inquiry from the TDCJ-CID records division which indicated petitioner

was not, on that date, eligible for mandatory supervised release on his DWI conviction. 

(Respondent’s Exhibit A).2

Because the Parole Board had found, prior to the date of the disciplinary case at issue,

that petitioner’s accrued good conduct time was not an accurate reflection of the inmate's

potential for rehabilitation and that his release would endanger the public, he was denied release

to mandatory supervision. Cf. Meyer v. Cockrell, 2003 WL 21448573 (N.D. Tex. 2003) (citing

an affidavit submitted as an exhibit); Cordova v. Johnson, 2001 WL 493179 (N.D. Tex. 2001)

(“It is assumed for purposes of this recommendation that Cordova has satisfied the minimum

eligibility requirements to be considered for mandatory release prior to December 15, 1999, on

which date the parole board refused to release him to discretionary mandatory supervision.”). 

 

 Case 2:03-cv-00262-J Document 14 Filed 08/16/06 Page 3 of 6 PageID 141
3

The undersigned does not reach the issue left unresolved in Malchi, i.e., whether an inmate who is eligible for

mandatory release under Texas’ post-September 1, 1996 mandatory release statute has a federal constitutional expectancy of

early release under the revised statute and, thus, has a liberty interest in release to mandatory supervised release.

HAB54\DISCIP\R&R\BARRIENTEZ-262.DIS-RELEASED:2 4

Once petitioner was denied release to mandatory supervision on the first occasion (August 6,

2002), petitioner no longer had a constitutional expectancy of early release to mandatory

supervised release. Consequently, after his first denial, petitioner no longer had a liberty interest

in mandatory supervision as any future release would be at the discretion of the Board of

Pardons and Paroles.3 As petitioner was not eligible for mandatory supervision at the time of the

disciplinary proceeding, he could not challenge the prison disciplinary adjudication by way of

federal habeas corpus. 

V.

EXHAUSTION OF AVAILABLE STATE REMEDIES

Respondent also argued petitioner failed to exhaust his state administrative remedies and,

thus, his claims are procedurally defaulted. Here, in his Step 1 grievance, petitioner did not raise

the issues he complains of herein. Petitioner contends, however, that he submitted a Step 2

grievance which “was returned without being processed due to [his] failure to attach [the] Step

One [grievance] to it.” Petitioner argues he was then transferred and his time for resubmitting

the Step 2 grievance expired while he was in transit. Petitioner has not presented the Court with

any evidence demonstrating his attempts to file a Step 2 grievance, or reflecting the dates

petitioner was in transit.

The undersigned finds petitioner has not demonstrated he has sufficiently exhausted his

administrative remedies with regard to the claims herein alleged. Consequently, petitioner’s

claims are subject to dismissal for petitioner’s failure to exhaust.

 

 Case 2:03-cv-00262-J Document 14 Filed 08/16/06 Page 4 of 6 PageID 142
4

Petitioner did not advise the Court of his release, nor has he submitted a change of address to the Court.

HAB54\DISCIP\R&R\BARRIENTEZ-262.DIS-RELEASED:2 5

VI.

MOOTNESS

Inquiry to the Texas Department of Criminal Justice, Correctional Institutions Division

on this date reveals petitioner was released from confinement to mandatory supervision on

November 14, 2005.4 Petitioner’s release from confinement renders the instant habeas

application moot. Petitioner challenges only the disciplinary proceeding in this action and the

resulting loss of good time credits. Consequently, the only relief available to petitioner if

successful in this matter was the restoration of the good time credits forfeited by the disciplinary

action. As petitioner has been released to mandatory supervision and is no longer incarcerated,

his request for a return of good time credits is moot. Under Texas Government Code section

498.003(a), “[g]ood conduct time applies only to eligibility for parole or mandatory supervision

as provided by Section 508.145 or 508.147 and does not otherwise affect an inmate’s term.” 

Therefore, it is the opinion of the undersigned that because of petitioner’s release to mandatory

supervision, the issues raised in his writ of habeas corpus are moot under the continuing

controversy requirement and that such petition should be dismissed.

VII.

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 by a Person in State Custody

filed by petitioner JOSEPH ALEXANDER BARRIENTEZ be DISMISSED as moot.

 

 Case 2:03-cv-00262-J Document 14 Filed 08/16/06 Page 5 of 6 PageID 143
HAB54\DISCIP\R&R\BARRIENTEZ-262.DIS-RELEASED:2 6

VIII.

INSTRUCTIONS FOR SERVICE

The United States District Clerk is directed to send a file-marked copy of this Report and

Recommendation to petitioner and to counsel of record for respondent by the most efficient

means available. 

IT IS SO RECOMMENDED. 

ENTERED this 16th day of August 2006.

 _______________________________

 CLINTON E. AVERITTE

 UNITED STATES MAGISTRATE JUDGE

* NOTICE OF RIGHT TO OBJECT *

Any party may object to these proposed findings, conclusions and recommendation. In

the event a party wishes to object, they are hereby NOTIFIED that the deadline for filing

objections is eleven (11) days from the date of filing as indicated by the file mark on the first

page of this recommendation. Service is complete upon mailing, Fed. R. Civ. P. 5(b), and the

parties are allowed a 3-day service by mail extension, Fed. R. Civ. P. 6(e). Therefore, any

objections must be filed on or before the fourteenth (14th) day after this recommendation is

filed. See 28 U.S.C. § 636(b); Fed. R. Civ. P. 72(b); R. 4(a)(1) of Miscellaneous Order No. 6, as

authorized by Local Rule 3.1, Local Rules of the United States District Courts for the Northern

District of Texas. 

Any such objections shall be made in a written pleading entitled “Objections to the

Report 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 to the proposed findings, conclusions, and recommendation

contained in this report 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 in this report and accepted by the district

court. See Douglass v. United Services Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996);

Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5th Cir. 1988). 

 

 Case 2:03-cv-00262-J Document 14 Filed 08/16/06 Page 6 of 6 PageID 144