EASTERN DISTRICT OF TEXAS

No. 6:24-cv-00005

Barry Emmett,

Petitioner,

v.

Director, TDCJ-CID,

Respondent.

ORDER

Petitioner Barry Emmett, an inmate of the Texas Department of 

Criminal Justice (TDCJ) proceeding pro se, filed this petition for the 

writ of habeas corpus challenging the legality of his confinement. 

Doc. 1. The petition was referred to United States Magistrate Judge 

John D. Love. Doc. 2. 

Petitioner was convicted after pleading guilty to unlawful possession of a machine gun, evading arrest, aggravated assault of a public 

servant, possession of a controlled substance, and unlawful possession of a firearm in Dallas County on July 21, 2006. Doc. 11 at 2. He 

has filed multiple habeas corpus petitions, including challenges to 

his conviction as well as challenges to various disciplinary cases imposed by TDCJ. Id. at 3. 

In the present case, petitioner challenged the validity of his conviction and alleged that TDCJ added a deadly weapon finding to his 

sentence although the trial court did not make such a finding. Doc. 9 

at 7. He also asserted that the Texas Penal Code was invalid because 

it lacks a bill signed by the governor or a constitutional enabling 

clause, that his plea bargain is invalid under Article 9.402 of the Uniform Commercial Code, that he has been improperly denied parole 

or a medical pardon, that his work time cannot be taken away or forfeited, and that he fired his appeal attorneys in 2011 while off his 

medication and the court improperly accepted the firing. Id.

After reviewing the pleadings, the magistrate judge recommended that the petition for habeas corpus relief be dismissed. Doc. 

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11. The magistrate judge determined that petitioner’s challenges to 

his conviction, the alleged addition of the deadly weapon finding, 

and the firing of his appellate attorneys were successive and should 

be dismissed for want of jurisdiction; the claim concerning the invalidity of the Penal Code was unexhausted, and the claims concerning 

the invalidity of the plea agreement, the denial of parole, and the forfeiture of work time lacked merit. Id. at 6. Petitioner filed objections 

on February 16, 2024. Doc. 15. 

The court reviews the objected-to portions of a magistrate 

judge’s report and recommendation de novo. See Fed. R. Civ. P. 

72(b)(3); 28 U.S.C. § 636(b)(1). However, petitioner’s objections do 

not address any of the magistrate judge’s proposed findings or conclusions. He asserts that there were eleven grounds in his original 

petition and so half of the petition was “illegally disposed of,” but he 

does not identify the allegedly missing grounds or any errors in the 

report. Doc. 11 at 1. Petitioner’s objections are without merit. 

Having reviewed the magistrate judge’s report and the petitioner’s objections de novo, the court overrules petitioner’s objections and accepts the findings and recommendations of the 

magistrate judge’s report. Petitioner’s case is dismissed with prejudice as to petitioner’s claims concerning the denial of parole, the 

forfeiture of work time, and the validity of his plea agreement under the Uniform Commercial Code; dismissed without prejudice 

for failure to exhaust state remedies as to the claim concerning the 

validity of the Texas Penal Code; and dismissed without prejudice 

for want of jurisdiction as to petitioner’s challenge to his conviction, the alleged addition of the deadly weapon finding, and any 

other claims which petitioner could have but did not raise in earlier habeas proceedings. A certificate of appealability is denied sua 

sponte. 

So ordered by the court on May 9, 2024.

J. CAMPBELL BARKER

United States District Judge

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