HAB54\R&R\HUTSON-228.DNY-1983:2

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

WILBERT RAY HUTSON, §

§

Petitioner, §

§

v. § 2:05-CV-0228

§

NATHANIEL QUARTERMAN, Director, §

Texas Department of Criminal Justice, §

Correctional Institutions Division, §

§

Respondent. §

REPORT AND RECOMMENDATION

TO DISMISS PETITION FOR A WRIT OF HABEAS CORPUS

Petitioner WILBERT RAY HUTSON has filed with this Court a form Petition for a Writ

of Habeas Corpus by a Person in State Custody pursuant to 28 U.S.C. §2254. Petitioner is

presently incarcerated at the Ellis Unit in Huntsville, Texas pursuant to a 2001 conviction for the

offense of aggravated assault out of Harris County, Texas, and the resultant 10-year sentence. For

the reasons hereinafter expressed, the Magistrate Judge is of the opinion petitioner’s application

for federal habeas corpus relief fails to present a cognizable ground for relief and should be

DISMISSED.

I.

ALLEGATIONS

Petitioner appears to argue:

1. He is being denied due process because he was “denied the right to have a

hearing before his personal property [a pair of new boots] was taken,” was

 

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not given the opportunity to call witnesses, question the staff, or question

witnesses present at the time of the taking, and was never asked to give a

statement;

2. The ruling of the Dalhart Unit is against the evidence because petitioner had

papers on his boots and witnesses testified that Unit staff removed the boots

from petitioner’s housing;

3. Considering the witness affidavits, petitioner’s grievance, and petitioner’s

affidavit, the facts do not support the Dalhart Unit’s finding that petitioner

“never had any boots,” which was based solely on staff testimony that no

boots were removed; and

4. The Dalhart Unit was not a neutral fact finder and its finding was against

the overwhelming weight of the evidence.

Petitioner requests this Court “remand this cause back to the Administration with instruction to

reconsider the case along with all the evidence and conduct a thorough investigation.”

On August 17, 2005, this Court noted petitioner’s claims appear to be civil rights

allegations rather than habeas corpus allegations because the only relief sought was an order

compelling respondent to reconsider petitioner’s grievance and conduct a thorough investigation

into the loss of petitioner’s boots. Petitioner was directed to advise the Court as to whether he

wished to pursue a habeas action or a civil rights action. On September 2, 2005, petitioner

advised he wished to pursue a federal habeas corpus action under 28 U.S.C. § 2254 as such a

habeas action was the only remedy available to challenge the ruling of an administrative agency’s

final decision.

II.

MERITS OF ALLEGATIONS

Petitioner challenges the denial of prison grievance number 2005027476 wherein he

sought compensation for a new pair of boots, or the amount of $50 credited to his inmate trust

 

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fund account. Petitioner contends the denial of his grievance violates his due process rights and

that the unit’s ruling was against the great weight of the evidence.

“[W]hen a state prisoner is challenging the very fact or duration of his physical

imprisonment, and the relief he seeks is a determination that he is entitled to immediate release or

a speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus.” 

Preiser v. Rodriguez, 411 U.S. 475, 500, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973); Cook v. Tex.

Dep't of Criminal Justice Transitional Planning Dep't, 37 F.3d 166, 168 (5th Cir. 1994). “[A] §

1983 challenge is a proper remedy for a state prisoner who is making a constitutional challenge to

the conditions of his prison life, but not to the fact or length of his custody.” Preiser, 411 U.S. at

499. Here, petitioner’s allegations challenge an aspect of petitioner’s confinement, and petitioner

appears to seek injunctive, declaratory, or monetary relief. Petitioner does not challenge the fact

or duration of his confinement, nor does he seek a finding by this Court that would entitle him to a

speedier release from prison. Petitioner’s claims are not cognizable in a federal habeas corpus

action. Petitioner’s claims should have been presented as a civil rights complaint under 42 U.S.C.

§1983. Petitioner, however, has refused to pursue his claims in a civil rights lawsuit, instead

maintaining he is seeking relief pursuant to a habeas corpus proceeding. As petitioner’s claims

are not cognizable in a federal habeas corpus action the petition should be dismissed.

IV.

RECOMMENDATION

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

District Judge that the application for a writ of habeas corpus filed by petitioner WILBERT RAY

HUTSON be DISMISSED.

 

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V.

INSTRUCTIONS FOR SERVICE

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

Recommendation to each party by the most efficient means available.

IT IS SO RECOMMENDED. 

ENTERED this 17th day of January 2007.

 ______________________________________

 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 “entered” date directly above the

signature line. Service is complete upon mailing, Fed. R. Civ. P. 5(b)(2)(B), or transmission by

electronic means, Fed. R. Civ. P. 5(b)(2)(D). When service is made by mail or electronic means,

three (3) days are added after the prescribed period. Fed. R. Civ. P. 6(e). Therefore, any

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

filed as indicated by the “entered” date. 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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