CEA\HAB54\DISCIP\R&R\POLK-AL.INEL:2

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

ARTIS L. POLK, §

§

Petitioner, §

§

v. § 2:05-CV-0242

§

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 ARTIS L. POLK has filed with this Court a petition for a writ of habeas corpus

challenging a June3, 2004 prison disciplinary proceeding and the resultant loss of 910 days

previously accrued good time credits. The disciplinary proceeding took place at the French

Robertson Unit in Jones County, Texas. As of the date the instant habeas application was filed,

petitioner was incarcerated at the Clements Unit in Potter County, Texas. 

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 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 his habeas

application, petitioner advises he is in respondent’s custody pursuant to a conviction for the

felony offense of aggravated robbery out of the 265th Judicial District Court of Dallas County,

 

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Texas, and the resulting 15-year sentence. In his application, petitioner acknowledges that, for

his original conviction, there was a finding that he used or exhibited a deadly weapon and that he

is not eligible for mandatory supervised release. Petitioner, in fact, is not eligible for mandatory

supervised release under section 508.149(a)(1) and (a)(11) of the Texas Government Code. As

petitioner is not eligible for mandatory supervised release, he is not entitled to any federal habeas

corpus relief.

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

ARTIS L. POLK 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 7th 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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