1

In his answer, respondent has informed the Court that such conviction was for the second degree felony offense of

arson.

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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

CLARENCE R. MARTIN, §

§

Petitioner, §

§

v. § 2:05-CV-0043

§

DOUGLAS DRETKE, Director, §

Texas Department of Criminal Justice, §

Correctional Institutions Division, §

§

Respondent. §

REPORT AND RECOMMENDATION TO DENY

PETITION FOR A WRIT OF HABEAS CORPUS

Petitioner CLARENCE R. MARTIN has filed with this Court a petition for a writ of

habeas corpus challenging a prison disciplinary case. Petitioner failed to provide the Court with

the required information about his underlying conviction, except to state that he is serving a six

year sentence and in respondent’s custody pursuant to a June 14, 2002 conviction for the felony

offense of arson, out of the Judicial District Court of Brazoria County, Texas.1

In order to challenge a 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 supervised

release and must 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). In this case,

respondent, in his response filed June 23, 2005, briefed the issue of petitioner’s eligibility for

 

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mandatory release. Respondent contends petitioner was not eligible for mandatory release at the

time he filed the instant petition on August 5, 2004, since he had been denied release to

mandatory supervision by the Texas Board of Pardons and Paroles on January 27, 2004 and

December 6, 2004. Petitioner has not filed any reply to respondent’s answer and has not

challenged respondent’s contention that petitioner is no longer eligible for mandatory release.

In deciding Malchi, supra, the Fifth Circuit did not reach the issue of whether an inmate

serving a sentence for an offense committed after September 1, 1996, has a liberty interest in his

accrued good time so as to entitle him to federal habeas corpus relief if such good time was

forfeited. The September 1, 1996 date is significant because the legislature amended the

mandatory release supervision statute effective that date. The amendment changed release to

mandatory supervision from being automatic when an inmate’s accrued good time and flat time

served equaled his sentence, to making release subject to review by the Parole Board.

In this case, petitioner Martin’s release is governed by the post-September 1, 1996

mandatory release provisions, and, in fact, petitioner has been denied release to mandatory

supervision by the Parole Board. Since Martin has been denied release, the Texas Department of

Criminal Justice records reflect he is no longer eligible for release to mandatory supervision. 

Therefore, while statutorily the arson offense for which petitioner was convicted constitutes an

offense for which release to mandatory supervision is permitted, automatic mandatory release is

no longer available to petitioner Martin, and, consequently, his status regarding release is subject

to the discretion of the Parole Board. In fact, Martin’s next review will, according to the TDCJ

records furnished by respondent, not occur until January 2006, and he will have completely

served and discharged his six year sentence in June 2006.

 

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For the reasons set forth above, the Magistrate Judge agrees with respondent that Martin

is no longer eligible for mandatory release and that his expectation of release is contingent upon

favorable action by the Parole Board to the degree that he no longer has a liberty interest in his

accrue good time credits. Since he no longer has a liberty interest in his accrued good time

credits, he is not eligible for federal habeas corpus relief and his petition for writ of habeas

corpus should be DENIED.

RECOMMENDATION

It is the RECOMMENDATION of the undersigned United States Magistrate Judge to the

United States District Judge that the petition for a writ of habeas corpus filed by petitioner

CLARENCE R. MARTIN be DENIED.

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 30th day of September 2005.

 _______________________________

 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

 

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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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