HAB54\DISCIP\R&R\MERITS\MENDENHALL-440.INELIG-PRE:2

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

CRAIG EMMETT MENDENHALL, §

§

Petitioner, §

§

v. § 2:03-CV-0440

§

NATHANIEL QUARTERMAN, Director, §

Texas Department of Criminal Justice, §

Correctional Institutions Division, §

§

Respondent. §

REPORT AND RECOMMENDATION

TO DENY 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 CRAIG EMMETT MENDENHALL challenging 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 DENIED.

I.

STATE COURT CONVICTION

Petitioner in the custody of the Texas Department of Criminal Justice, Correctional

Institutions Division (TDCJ-CID) as a result of judgments and sentences out of the 203rd Judicial

District Court of Dallas County, Texas, the 278th Judicial District Court of Walker County, Texas,

and the 87th Judicial District Court of Freestone County, Texas. On June 16, 1983, in Dallas

County, petitioner pleaded guilty to six (6) counts of aggravated robbery with a deadly weapon, and

 

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Other punishment 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).

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was sentenced to a term of imprisonment of thirty (30) years for each count, such terms to run

concurrently. See State v. Mendenhall, Nos. F83-34776-UP, F83-83688-IP, F83-84773-UP, F83-

84775-UP, F83-88927-VP, and F83-89838-IP. On December 13, 1990, in Walker County,

petitioner pleaded guilty to the offense of escape, and was sentenced to a term of imprisonment of

five (5) years, said sentence to run consecutively to the 30-year sentences out of Dallas County. See

State v. Mendenhall, No. 15,320-C. On April 22, 1998, in Freestone County, petitioner was found

guilty of the offense of assault of a public servant, and was sentenced to a term of imprisonment of

sixty-five (65) years, such sentence to run consecutively to the prior 30-year and 5-year sentences. 

Further elaboration of the specifics of petitioner’s state court convictions 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 January 17, 2003, after a disciplinary hearing, petitioner was found guilty of the prison

disciplinary offense of extortion of money, a Level 1,Code 5.1 violation of the TDCJ-CID

disciplinary rules. See Case No. 20030129461. Said finding of guilt was based on the charging

officer’s report and testimony as well as the offender’s handbook, which described the offense

charged. As punishment, 365 days of petitioner’s previously accrued good time credits was

forfeited.1

Following the finding of guilt in the disciplinary proceeding, petitioner filed a Step 1

 

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grievance which was denied on February 24, 2003. Petitioner also filed a Step 2 grievance which

was denied on March 13, 2003. Petitioner challenges this disciplinary adjudication by the instant

federal habeas corpus application. 

III.

PETITIONER’S ALLEGATIONS

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

January 17, 2003 disciplinary proceeding in Case No. 20030129461 in the following respects:

1. Petitioner was denied due process because the hearing officer seized from

petitioner a written statement and written questions he intended to ask

witnesses and, thus, he was denied the right to read the written statement or

ask the written questions;

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

question certain witnesses during the hearing, and was denied the right to

secure written statements from said witnesses to present at the hearing;

3. Petitioner was denied due process because he was denied the right to present

documentary evidence, to wit: bank statements, written statements from

petitioner’s banker, and Inmate Trust Fund print outs, at the hearing; and

4. Petitioner was denied due process because he was denied the right to an

impartial fact finder.

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 the forfeiture of previously accrued good time

credits. See Malchi v. Thaler, 211 F.3d 953, 958 (5th Cir. 2000). In his initial answer, respondent

indicated petitioner was not eligible for mandatory supervision at the time of his disciplinary

 

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Tex. Code Crim. Proc. art. 41.12(15)(c) (Vernon Ann. 1983) (“[a] prisoner who is not on parole, except a person

under sentence of death, shall be released to mandatory supervision . . . when the calendar time he has served plus any accrued

good conduct time equals the maximum term to which he was sentenced.”)

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adjudication, but did not argue petitioner’s habeas application should be denied on this basis.

In an amended answer filed June 23, 2005, respondent argues petitioner’s federal writ

should be dismissed with prejudice because he is not eligible for release to mandatory supervision

and, therefore, his loss of good time credits does not invoke due process concerns. Respondent

contends petitioner is not eligible for release to mandatory supervision because of his convictions

for aggravated robbery with a deadly weapon. Respondent acknowledges petitioner committed the

aggravated robbery offenses on January 10, 12, 17 and 21, 1983, and February 6 and 8, 1983, and

that, at the time petitioner committed these offenses, commission of them did not preclude

eligibility for mandatory supervision.2

 Respondent argues, however, that petitioner’s conviction for

the offense of assault on a public servant on March 6, 1997, resulted in the application of the

current mandatory supervision statute which provided:

A prisoner may not be released to mandatory supervision if the prisoner is serving or

has previously been convicted for an offense and the judgment for the offense

contains an affirmative finding under Subdivision (2), Subsection (a), Section 3g,

Article 42.12, of this code or if the prisoner is serving a sentence for or has

previously been convicted of:

. . .

(10) a first degree felony under Section 29.03, Penal Code (Aggravated Robbery).

Tex. Code Crim. Proc. Art. 42.18 §§ 8(c) and 8(c)(10) (Vernon Ann. 1996). Respondent argues the

mandatory supervision statute in effect when petitioner committed the assault of a public servant

offense renders petitioner ineligible for release on mandatory supervision because he was

previously convicted of aggravated robbery. Citing McCall v. Dretke, 390 F.3d 358, 365-66 (5th

Cir. 2004), respondent maintains mandatory supervision eligibility is based on an inmate’s most

 

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Act of June 1, 1995, 74th Leg., R.S., ch. 263, 1995 Tex. Gen. Laws 2592 (current version at Tex. Gov’t Code Ann. §§

508.147, 508.149 (Vernon 2005) (emphasis added).

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recent offense “rather than based on the dates of his earlier offense” and concludes petitioner is not

eligible for mandatory release, that he has no liberty interest in release, and that he should be denied

federal habeas corpus relief.

In McCall, the defendant was convicted, in 2000, of felony driving while intoxicated (DWI). 

The charge was elevated from a misdemeanor offense to a felony offense because of two prior DWI

convictions in 1994 and 1997. While serving his 10-year sentence, petitioner was notified he would

only be eligible for “discretionary” mandatory supervision which went into effect on September 1,

1996, rather than the mandatory supervision provisions which were in effect at the time he

committed the DWI offenses in 1994 and 1997, and which convictions were used to elevate his

2000 DWI offense to a felony. The 1996 law regarding mandatory supervision release provided the

change in the law was to apply “only to a prisoner serving a sentence for an offense committed on

or after the [September 1, 1996] effective date.”3

 The new law also provided that an offense would

be considered to have been committed before the statute’s effective date if “any element of the

offense occurr[ed] before the effective date.” The Fifth Circuit considered only the issue of whether

application of the 1996 “discretionary” mandatory supervision law to petitioner constituted an ex

post facto law. Id. at 364. The McCall Court found defendant’s punishment for the 2000 DWI

offense was based on the date of his most recent offense (the 2000 offense), which took place after

the 1996 mandatory supervision statute became effective. The Court found the “discretionary”

mandatory supervision was not a secondary punishment for the defendant’s prior 1994 and 1997

offenses, but was “a statutorily authorized punishment for criminal conduct that has occurred after

the passage of the law.” Id. Consequently, the Court held the application of the 1996

 

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Post-1996 mandatory supervised release has been referred to as discretionary mandatory release as opposed to pre1996 mandatory release which is more properly classified as automatic mandatory supervised release.

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“discretionary” mandatory supervision law to the defendant’s 2000 conviction was not ex post facto

because the defendant’s “most recent offense took place after the statute became effective.”

The issues in this case regarding petitioner Mendenhall’s eligibility for mandatory

supervision release are different from the issue presented in McCall. First, in McCall, the issue was

not whether the petitioner was or was not eligible for mandatory supervised release, but, instead, the

issue was whether the petitioner was eligible for pre-1996 or post-1996 mandatory supervision

release.4 In this case, petitioner Mendenhall was eligible for pre-1996 mandatory supervised release

on each of the thirty-year aggravated robbery sentences he is currently serving when convicted. 

The five-year escape sentence has been stacked onto the prior aggravated robbery sentences and

petitioner Mendenhall was eligible for supervised release on the escape conviction when convicted. 

The sixty-five year sentence for assault on a public servant has been stacked onto the prior

sentences for aggravated robbery and escape, and on that sentence petitioner Mendenhall would be

eligible for post-1996 mandatory supervision release as of the date he was convicted. Respondent,

however, argues he is not eligible for mandatory release on the sixty-five year assault of a public

servant sentence because the mandatory supervision statute in effect at the time petitioner

committed the assault on a public servant offense provided that anyone serving a sentence for or

who had previously been convicted of, an enumerated offense, which included aggravated robbery,

would be ineligible for mandatory supervised release. The difficulty arises, however, because the

TDCJ commitment inquiries attached to respondent’s amended answer are either unclear or

contradict respondent’s argument. Those commitment inquiries reflect petitioner is eligible for

mandatory supervision release on the six aggravated robbery sentences as well as the escape

 

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The sixty-five year assault on a public servant plus the five-year escape, plus the six thirty-year aggravated robbery

sentences (which are running concurrently), equal one hundred years.

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sentence. While the commitment inquiry does reflect petitioner is not eligible for mandatory

supervision release on the assault of a public servant sentence, there is no information or

explanation why the commitment inquiries indicate petitioner is eligible for mandatory supervised

release on the other six sentences, and the Court is unable to resolve this contradiction with the

information before the Court. Further complicating this issue is the fact respondent indicates that,

for purposes of time calculation, of all of the sentences petitioner is serving are added together

resulting in a maximum term of 100 years incarceration.5 If, in fact, petitioner is serving what

amounts to a 100-year sentence, then the TDCJ records referenced previously appear to reflect

petitioner eligible for mandatory supervision on 35 years of the 100-year sentence.

Consequently, while it may very well be that petitioner is in fact ineligible for mandatory

supervised release, for the reasons set forth above, respondent has not met the burden to establish

that fact. Additional information regarding the actual length of petitioner Mendenhall’s sentence,

whether he is in fact serving a 100-year sentence and the basis for such a calculation, whether he is

eligible or ineligible for mandatory supervised release on any of such sentence, and if ineligible,

some explanation as to why TDCJ commitment inquiries reflect petitioner is eligible for mandatory

supervised release on the majority of his sentences, are all issues which cannot be answered based

upon the pleadings and information received to date. Consequently, it is the opinion and finding of

the Magistrate Judge that the petition for writ of habeas corpus should not be dismissed on the basis

that petitioner is not eligible for mandatory supervised release.

 

 

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V.

EXHAUSTION OF AVAILABLE STATE REMEDIES

Respondent argues petitioner has failed to exhaust his state administrative remedies with

regard to claims 2 - 4 and, thus, those claims are procedurally defaulted. In his Step 1 grievance,

petitioner asserted:

Captain Hendricks blithley (sic) seized all [petitioner’s] (10) page prepared

statements, written questions, request for witnesses, and documentary evidence . . .

[and] abrogated [petitioner’s] entitlement to present the seized items . . . at the . . .

offense hearing.

. . .

Further Captain Hendrick’s blanket denial of all of [petitioner’s] witnesses, crucial

documentary evidence, and refusal to allow the charging officer to be questioned by

[petitioner’s] substitute counsel denied [petitioner] the right to be heard, and Captain

Hendrick’s clearly calculated act/actions demonstrates that she was not an impartial

decision maker which denied due process to [petitioner] when he was denied an

impartial tribunal hearing officer. Further evidence of such was demonstrated by

Captain Hendrick’s interruptions of [petitioner’s] verbal attempt at a statement

during the course of said hearing.

In his Step 2 grievance, petitioner stated:

In [petitioner’s] Level One appeal . . . [petitioner] clearly outlined how his

substantive procedural due process rights were violated when [petitioner] was denied

due process and due course of law . . . . [Petitioner] further clearly stated that

disciplinary Hearing Officer Captain Hendrick seized all of [petitioner’s] statements,

written questions, request for witnesses, and documentation and evidence . . . then

blithley (sic) abolished [petitioner’s] entitlement to present these items at the 1-17-03

hearing.

Petitioner also raised claims of insufficient evidence and no evidence to support a finding of guilt in

the disciplinary proceeding. 

Petitioner’s claim that he was denied the right to secure written statements from witnesses

prior to the hearing so as to present such statements at the hearing was not raised in either

grievance. Petitioner’s claim that he was denied an impartial fact finder was raised only in the Step

 

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One grievance, and not the Step Two grievance. Petitioner’s claim that he was denied the right to

present documentary evidence was raised only in conclusory fashion and did not allege any specific

documents, much less the documents petitioner identifies in this proceeding. The undersigned finds

these claims unexhausted and procedurally defaulted. 

The undersigned finds petitioner did sufficiently raise claims, in both grievances, that the

hearing officer seized, from petitioner, a written statement and written questions he intended to ask

his requested witnesses and thus denied him the opportunity to read the statement or ask the

questions. Petitioner also sufficiently raised and exhausted the claim that he was denied the right to

call and question certain witnesses.

VI.

MERITS

In his first ground, petitioner argues he was denied due process because the hearing officer

“seized” his written statement and written questions he intended to ask witnesses and, thus, he was

denied the right to present his written statement and written witness questions at the hearing. The

hearing records, however, reflect the hearing officer considered petitioner’s written statement in

reaching her decision that petitioner was guilty of the charged disciplinary offense. (See record

citations in respondent’s amended answer, p. 14). The hearing officer also reviewed petitioner’s

proposed witness questions and provided written explanations for their denial. These “seized”

items are part of the hearing record before this Court. Therefore, contrary to petitioner’s claim, the

record shows the hearing officer did not “seize” petitioner’s written statement and witness questions

but, rather, received them as part of the hearing record and considered them in reaching her

decision. Further, there is no constitutional right to cross-examine witnesses in prison disciplinary

 

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proceedings. Wolff v. McDonnell, 418 U.S. 539, 567 (1974). To the extent, if any, petitioner is

arguing he was denied due process because he was not allowed to personally read his statement,

petitioner has not directed the undersigned to any authority suggesting a constitutional right exists

that gives an inmate the right to dictate the manner in which evidence is presented.

Petitioner’s claim that he was denied due process because he was denied the right to call and

question certain witnesses is also without merit. A hearing officer has discretion to deny requested

witnesses in a prison disciplinary proceeding. Smith v. Rabalais, 659 F.2d at 543-44. Here,

although not required to do so, the hearing officer clearly stated her reasons for denying petitioner’s

requested witnesses and proposed witness questions. Specifically, the hearing officer explained the

requested witnesses, some of whom were members of the public and not employees of TDCJ, were

not eligible to participate in prison disciplinary proceedings and that petitioner’s proposed witness

questions were about matters not relevant to the disciplinary proceeding. R. 68, 73, 75, 82. 

Petitioner cannot show the hearing officer abused her discretion in denying petitioner any witnesses

or in refusing to submit proposed questions to witnesses. Petitioner cannot demonstrate the absence

of his requested witnesses or his proposed questions to said witnesses resulted in any prejudice to

his case. Petitioner’s claims should be DENIED. 

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 filed by petitioner CRAIG EMMETT

MENDENHALL is without merit and should be, in all things, DENIED.

 

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VIII.

INSTRUCTIONS FOR SERVICE

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

Recommendation to petitioner by the most efficient means available. 

IT IS SO RECOMMENDED. 

ENTERED this 26th day of October 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). 

 

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