1

IN THE UNITED STATES DISTRICT COURT 

FOR THE EASTERN DISTRICT OF TEXAS 

TYLER DIVISION

BARRY EMMETT §

v. § CIVIL ACTION NO. 6:24cv5

DIRECTOR, TDCJ-CID §

REPORT AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

The Petitioner Barry Emmett, an inmate of the Texas Department of Criminal Justice, 

Correctional Institutions Division proceeding pro se, filed this application for the writ of habeas 

corpus under 28 U.S.C. §2254 complaining of the legality of his confinement. The petition was 

referred to the undersigned United States Magistrate Judge pursuant to 28 U.S.C. §636(b)(1) and

(3) and Local Rule CV-72 of the Local Rules of Court for the Eastern District of Texas.

I. Background

Petitioner’s original petition did not conform with Rule 2(c) of the Rules Governing Section 

2254 Proceedings in the United States District Courts in that it did not specify all of the grounds of 

relief available to the petitioner or state the facts supporting each ground. The Court ordered 

Petitioner to file an amended petition setting out with particularity the conviction or other action 

which he is challenging, the grounds upon which he seeks relief and the facts upon which he relies 

for each ground of relief.

Petitioner filed his amended petition on January 26, 2024. His first two grounds for relief 

challenge the validity of his underlying conviction, saying that he lacked the mental competence to 

commit the crimes for which he was convicted, he now has a Ph.D and qualifies as an expert, so he 

can show the court why he wasincompetent, the trial judge violated hisrights because the judge had 

been notified by Petitioner’sfamily that “something wasseverely wrong with him,” the punishment 

for the offense exceeded what had occurred, and he received ineffective assistance of counsel

Case 6:24-cv-00005-JCB-JDL Document 11 Filed 02/05/24 Page 1 of 9 PageID #:

60
2

because counsel should have entered a plea of not guilty by reason of insanity instead of allowing 

Petitioner to plead guilty. He statesthat there was no deadly weapon finding made at trial, but TDCJ 

put such a finding on his record in 2006, and refuses to correct the error. Petitioner states that he 

received a 40 year sentence when the most that happened was the misdemeanor offense of firing a 

gun within city limits, not a purported assault.

Petitioner’s third ground for relief asserts that the Texas Penal Code is invalid because it 

lacks a bill signed by the Governor and it also lacks a constitutional enabling clause. Petitioner 

argues that this renders his “contract” (presumably referring to his plea agreement) invalid; in 

addition, Petitioner contends that the plea agreement violates Article 9.402 of the Uniform 

Commercial Code. He says that he filed a habeas corpus petition in Walker County and won twice 

on default judgment, but the court is refusing enter final judgment.

Fourth, Petitioner assertsthat in 2019, confirmed gang members were granted parole despite 

not being eligible for parole. However, he was not even reviewed for parole, which violates hisright 

to equal protection. Petitioner also says that he qualifies for an educational pardon because he has 

completed a Ph.D degree and for a medical pardon because he needs a type of eye surgery which 

is only available in Japan. He claims that he submitted a copy of his Ph.D. thesis, but the Board of 

Pardons and Paroles will not even respond to him.

In his final ground for relief, Petitioner contendsthat in 2011, he was off his medication and 

fired “the best appeal attorneys in Texas.” He says that he was mentally incompetent to fire his 

attorneys and so the judge violated the scintilla standard and the Fifth Amendment by accepting the 

firing.

II. Discussion

Court records show that Petitioner pleaded guilty to the offenses of 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 on July 21, 2006, receiving sentences of 40 years’ 

confinement for the aggravated assault charge and ten years’ confinement on each of the other

Case 6:24-cv-00005-JCB-JDL Document 11 Filed 02/05/24 Page 2 of 9 PageID #:

61
3

charges. The evidence at sentencing, as recounted by the 5th Judicial District Court of Appeals, 

showed that on July 8, 2005, Irving police officer Jason Maguire stopped Petitioner as part of a 

traffic stop. Maguire got out of his car, and appellant drove away. Maguire followed, and saw 

Petitioner “digging forsomething” in his back seat. Petitionerleaned out ofthe car window and fired 

a machine gun at Maguire, who continued to follow Petitioner and called for back up. Officers were 

able to stop appellant's car by using spikes. Once stopped, Petitioner surrendered to police. His car 

was found to contain a Tech 9 machine gun, two flash suppressors, magazines, clips, and 

ammunition for the machine gun, a digital drug scale and pipe, and a prescription pill bottle. Emmett 

v. State,slip op. no.’s 5-06-1098-CR, 5-06-1100-CR, 5-06-1101-CR, and 5-06-1102-CR, 2007 WL

1366044 (Tex.App.-Dallas, May 9, 2007, no pet.).

Petitioner has previously sought federal habeas corpus relief concerning these five 

convictions. Emmett v. Quarterman, civil action no. 3:08cv2219 (N.D.Tex., dismissed April 26, 

2011, aff’d by denial of certificate of appealability slip op. no. 11-10536 (5th Cir.,January 9, 2012). 

Petitioner does not allege that he has received permission from the Fifth Circuit Court of Appeals 

to file a successive habeas petition asrequired by 28 U.S.C. §2244(b)(3)(A), and the on-line records 

of the Fifth Circuit do notshow that Petitioner hassought, much lessreceived,such permission. To 

the extent Petitioner challenges these convictions in the present case, the Court lacks jurisdiction to 

considersuch a challenge untilsuch time as Petitioner hasreceived permission from the Fifth Circuit 

to file a successive petition. Crone v. Cockrell, 324 F.3d 833, 836 (5th Cir. 2003).

Although Petitioner claimsthat there was no deadly weapon finding in his criminal case and 

TDCJ added the finding on its own in 2006, Petitioner’s judgment of conviction in DallasCounty 

Criminal District Court No. 7 for aggravated assault on a public servant, cause no. F0535473 -

available online at https://courtsportal.dallascounty.org/DALLASPROD/Home/WorkspaceMode?

p=0 - contains a line saying “Affirmative Finding on Deadly Weapon - Yes, firearm used or 

exhibited.” The facts asset out by the Fifth Judicial District Court of Appealsshow that Petitioner’s 

conviction for aggravated assault of a peace officer resulted from his firing a machine gun at an

Case 6:24-cv-00005-JCB-JDL Document 11 Filed 02/05/24 Page 3 of 9 PageID #:

62
4

Irving police officer. Petitioner’s claim that his conviction lacked a deadly weapon finding is 

without merit.

In addition, the Fifth Circuit has held that a habeas corpus petition is successive when it 

either presents a challenge to the petitioner’s conviction or sentence which could have been 

presented in an earlier petition or can be said to be an abuse of the writ. Propes v. Quarterman, 573 

F.3d 225, 229 (5th Cir. 2009). In that case, the prisoner unsuccessfully sought habeas corpus relief 

concerning a prison disciplinary proceeding in February of 2005. He then sought state habeas 

corpus relief concerning his conviction in November of 2005. After this petition was denied, the 

prisoner filed a federal habeas corpus petition challenging his conviction in February of 2007. The 

district court denied his petition as successive. On appeal, the Fifth Circuit held that his second 

petition, challenging his conviction, was successive because he could have brought these claims in 

his first petition; the court rejected the prisoner’s contention that he could not have combined 

together a challenge to a disciplinary proceeding and a challenge to his conviction, even though the 

standard habeas corpus form made it appear as though such challenges could not be brought 

together.

In the present case, Petitioner filed ten previous federal habeas corpus petitions between 

2008 and 2022, of which six were dismissed on the merits and four were dismissed without 

prejudice for failure to prosecute or to obey an order of the court. Of those dismissed on the merits, 

cause nos. 3:08cv2219, in the Northern District of Texas, and 4:16cv2839, in the Southern District 

of Texas, challenged Petitioner’s convictions, while cause nos. 7:09cv111 and 7:09cv138, in the 

Northern District of Texas, and 4:10cv2494 and 4:10cv3869, in the Southern District of Texas, 

challenged various prison disciplinary actions taken against Petitioner.

Petitioner claims that TDCJ added the deadly weapon finding to his sentence in 2006. He 

hasfiled multiple habeas petitionssince that time in which he could have raised that claim, rendering 

this claim in his present petition successive. Propes, 573 F.3d at 229; In re Jimenez, 211 F.App’x 

297, 2006 U.S. App. LEXIS 31583, 2006 WL 3821531 (5th Cir., December 22, 2006). Because

Case 6:24-cv-00005-JCB-JDL Document 11 Filed 02/05/24 Page 4 of 9 PageID #:

63
5

Petitioner’s first two grounds for relief are successive, they should be dismissed without prejudice 

for want of jurisdiction. Crone, 324 F.3d at 836.

In his third ground for relief, Petitioner asserts that the Texas Penal Code is invalid because 

it lacks a bill signed by the Governor or a constitutional enabling clause. He states in a letter dated 

January 8, 2024, that he won this argument in state court in September of 2023, but the Walker 

County judge refuses to enter a final order.

Because Petitioner states that this claim is still pending in state court, he plainly has not 

exhausted his state remedies on this issue, in that the question has not been presented to or ruled 

upon by the highest court of the State of Texas. A review of the online records of Walker County 

showsthat the case to which Petitioner refers, styled Emmett v. UTMB, cause no. 1426900, remains 

pending. See https://portal-txwalker.tylertech.cloud/Walker/CaseDetail.aspx?CaseID=506155.

The Fifth Circuit has explained that in order to exhaust state remedies in accordance with 

28 U.S.C. §2254, a petitioner must fairly present the factual and legal basis of any claim to the 

highest available state court for review prior to raising it in federal court. Nickleson v. Stephens, 803 

F.3d 748, 753 (5th Cir. 2015). Because Petitioner plainly has not presented this claim to the highest 

state court, it may be dismissed without prejudice as unexhausted.

Plaintiff also contends that his plea bargain is invalid under Article 9.402 of the Uniform 

Commercial Code, which provides that “the existence of a security interest, agricultural lien, or 

authority given to a debtor to dispose of or use collateral, without more, does not subject a secured 

party to liability in contract or tort for the debtor's acts or omissions.” See Tex. Bus. & Commerce 

Code §9.402. This provision is plainly irrelevant to the viability of Petitioner’s plea agreement, and 

his claim on this point is without merit.

Petitioner’s fourth ground for relief complains of being denied parole or a medical pardon. 

The Fifth Circuit has held that Texas prisoners have no protected liberty interest in parole, meaning 

that they cannot mount a challenge against any state parole review procedure on procedural or 

substantive due process grounds. Johnson v. Rodriguez, 110 F.3d 299, 308 (5th Cir. 1997).

Case 6:24-cv-00005-JCB-JDL Document 11 Filed 02/05/24 Page 5 of 9 PageID #:

64
6

Similarly, there is no constitutional right to a pardon, medical or otherwise. Cloud v. Cockrell, civil 

action no. 3:02cv2789, 2003 U.S. Dist. LEXIS 4035, 2003 WL 21448351 (N.D.Tex., March 27,

2003); Connecticut Board of Pardons v. Dumschat, 452 U.S. 458, 464, 101 S.Ct. 2460, 69 L.Ed.158 

(1981). The fact that he has not been granted parole or a pardon does not set out a viable claim for 

relief.

Although Petitioner complains that other inmates who were not eligible for parole were in 

fact released on parole in 2019, while he was not even reviewed, court records show that Petitioner 

received a 40-year sentence for aggravated assault on a public servant, with an affirmative finding 

of a deadly weapon, for an offense committed on July 8, 2005. Consequently, Texas law provided 

that Petitioner had to serve one-half of his sentence, without consideration of good conduct time, 

before becoming eligible for parole, and thus was not eligible for parole in 2019. Tex. Gov. Code 

art. 508.145 (Vernon 1999).1In any event, even had Petitioner been eligible for parole at that time, 

he alleges nothing more than an inconsistent application or result, which is not enough to set out a 

viable equal protection claim. Lutz v. Carlson, 204 F.3d 1117, 1999 WL 1330646 (5th Cir., 

December 16, 1999). This claim is without merit.

Petitioner argued that his work time cannot be taken away or forfeited, but thisis not correct. 

Under Texas law, good time and work time are the same; work time is simply good time which is 

given for working. Texas Gov. Code Ann. art. 498.003(d); Aguero v. Director, TDCJ, civil action 

no. 6:09cv124, 2009 U.S. Dist. LEXIS 44439, 2009 WL 1473214 (E.D.Tex., May 27, 2009, appeal

dismissed). Neither good time nor work time serve to reduce the length of a prisoner's sentence but 

apply only to eligibility for parole or mandatory supervision. Ex Parte Hallmark, 883 S.W.2d 672, 

674 (Tex. Crim. App. 1994); Palmer v. Texas Board of Paroles, 89 F.App'x 857, 2003 U.S. App. 

LEXIS 24969, 2003 WL 22945694 (5th Cir., December 10, 2003). The contention that work time 

cannot be forfeited has been rejected by the courts. Broughton v. TDCJ, civil action no. 

6:16cv3562017 U.S. Dist. LEXIS 21997, 2017 WL 9289647 (E.D. Tex., January 3, 2017), Report

1TDCJ online records confirm that Petitioner’s parole eligibility date is July 8, 2025.

Case 6:24-cv-00005-JCB-JDL Document 11 Filed 02/05/24 Page 6 of 9 PageID #:

65
7

adopted at 2017 U.S. Dist. LEXIS 21681, 2017 WL 653252 (E.D.Tex., February 15, 2017); Cook

v. Cockrell, civil action no. 4:02cv827, 2003 U.S. Dist. LEXIS 3336 (N.D.Tex., March 6, 2003), 

Report adopted at 2003 U.S. Dist. LEXIS 5107, 2003 WL 21649973 (N.D.Tex., March 28, 2003). 

This claim is without merit.

In his final ground for relief, Petitioner contendsthat in 2011, he was off his medication and 

fired “the best appeal attorneys in Texas.” He says that he was mentally incompetent to fire his 

attorneys and so the judge violated the scintilla standard and the Fifth Amendment by accepting the 

firing. Petitioner offers no reason why he could not have raised this claim in one of his prior habeas 

cases. As such, it is successive and should be dismissed for want of jurisdiction. Crone, 324 F.3d 

at 836.

III. Conclusion

An appeal may not be taken to the court of appeals from a final order in a habeas corpus 

proceeding unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C.

§2253(c)(1)(A). A district court may deny a certificate of appealability sua sponte because the 

district court that denies a petitioner relief is in the best position to determine whether the petitioner 

has made a substantial showing of a denial of a constitutional right on the issues before that court. 

Alexander v. Johnson, 211 F.3d 895, 898 (5th Cir. 2000).

A certificate of appealability may only issue if the prisoner has made a substantial showing 

of the denial of a constitutional right. 28 U.S.C. §2253(c)(2); Buntion v. Lumpkin, 982 F.3d 945, 

948 (5th Cir. 2020). In order to make that showing, the petitioner must demonstrate that jurists of 

reason could disagree with the district court’s resolution of his constitutional claims or thatjurists 

could conclude that the issues presented are adequate to deserve encouragement to proceed further. 

Buck v. Davis, 137 S.Ct. 759, 773, 197 L.Ed.2d 1 (2017). The Fifth Circuit’s review is not a full 

consideration of the factual or legal bases adduced in support of the petitioner’s claims, butrather 

an examination of whether the district court’s decision was debatable. Buntion, 982 F.3d at 948, 

citing United States v. Davis, 971 F.3d 524, 530 (5th Cir. 2020).

Case 6:24-cv-00005-JCB-JDL Document 11 Filed 02/05/24 Page 7 of 9 PageID #:

66
8

When a certificate of appealability is denied because of a procedural default in statecourt, 

the applicant must further demonstrate that reasonable jurists could disagree with the procedural 

ruling. Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000).

Petitioner has not shown, nor does the record indicate, that jurists of reason could disagree 

with the district court’s resolution of his constitutional claims or that jurists could conclude that the 

issues presented are adequate to deserve encouragement to proceed further. Consequently, he is not 

entitled to a certificate of appealability.

RECOMMENDATION

Itis accordingly recommended thatthe above-styled application forthewrit of habeas corpus 

be dismissed with prejudice as to the claim of denial of parole, without prejudice for failure to 

exhaust as to the claim concerning the validity of the Texas Penal Code, and without prejudice for 

want of jurisdiction as to the claims concerning the validity of Petitioner’s conviction and his firing 

of his attorneys. It is further recommended that a certificate of appealability be denied sua sponte.

A copy of these findings, conclusions and recommendationsshall be served on all partiesin 

the manner provided by law. Any party who objects to any part of these findings, conclusions, and 

recommendationsmustfile specificwritten objectionswithin 14 days after being served with a copy.

In order to be specific, an objection must identify the specific finding or recommendation 

to which objection is made, state the basis for the objection, and specify the place in the Magistrate 

Judge’s proposed findings, conclusions, and recommendation where the disputed determination is 

found. An objection which merely incorporates by reference or refers to the briefing before the 

Magistrate Judge is not specific, and the district court need not consider frivolous, conclusive, or 

general objections. See Battle v. United States Parole Commission, 834 F.2d 419, 421 (5th Cir. 

1987).

Case 6:24-cv-00005-JCB-JDL Document 11 Filed 02/05/24 Page 8 of 9 PageID #:

67
9

Failure to file specific written objections will bar the objecting party from appealing the 

factual findings and legal conclusions of the Magistrate Judge which are accepted and adopted by 

the district court except upon grounds of plain error. Duarte v. City of Lewisville, 858 F.3d 348, 352 

(5th Cir. 2017).

So ORDERED and SIGNED this 5th day of February, 2024.

Case 6:24-cv-00005-JCB-JDL Document 11 Filed 02/05/24 Page 9 of 9 PageID #:

68