Sims v. Lumpkin, No. 4:2024cv00450 - Document 8 (S.D. Tex. 2024)
Court Description: MEMORANDUM OPINION AND ORDER - Because Sims does not establish that he was denied early release in violation of a constitutional right, this proceeding will be dismissed for failure to state a claim on which relief may be granted. Accordingly, th e court ORDERS as follows: 1. The 1 Petition for Writ of Habeas Corpus Pursuant to 28 U.S.C. [§] 2241 filed by Danny J. Sims is DISMISSED WITH PREJUDICE. 2. A certificate of appealability is DENIED. (Signed by Judge Sim Lake) Parties notified. (sra4)
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Sims v. Lumpkin Doc. 8 United States District Court Southern District of Texas ENTERED April 04, 2024 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION DANNY J. SIMS, TDCJ #2367613, Nathan Ochsner, Clerk § § Petitioner, v. BOBBY LUMPKIN, Director, Texas Department of Criminal Justice - Correctional Institutions Division, Respondent. § § § § § § § § CIVIL ACTION NO. H-24-0450 § § § MEMORANDUM OPINION AND ORDER State inmate Danny J. Sims (TDCJ #2367613) filed a handwritten "Petition[] for Writ of Habeas Corpus Pursuant to 28 U.S.C. [§] 2241" ("Petition") (Docket Entry No. 1), which appears to seek release on parole for medical reasons. Noting that Sims to identify an adverse decision about his confinement or provide facts in support of a claim for relief, the court issued an Order to Correct Deficient Pleadings on February 8, 2024 (Docket Entry No. 4), directing Sims to submit a standard form petition within 30 days. Irr response, Sims has submitted a handwritten "Amended Habeas Corpus [Petition]" (Docket Entry No. 7) that is one paragraph long. After considering all of the pleadings and the applicable law, this case will be dismissed for the reasons explained briefly below. Dockets.Justia.com I. Background Sims is presently confined by the Texas Department of Criminal Justice Correctional Institutions Division Jester III Unit in Richmond. 1 ("TDCJ") at the Public records reflect that he is serving a 25-year sentence for felony DWI and that he has a lengthy record of previous offenses. 2 eligible He is 51 years of age. 3 He became parole on March 17, 2023, but release was denied on April 25, 2023, due to his criminal record of repeated offenses and excessive use of drugs or alcohol. 4 He is currently in the parole review process, but absent a favorable determination his projected release date is September 15, 2030.5 Medical records attached to the Petition reflect that Sims had surgery in 2021 to remove a recurrent brain tumor.6 had hip replacement surgery.7 In 2020 Sims He suffers from several other 1 Petition, Docket Entry No. 1, p. 3. For purposes of identifi on, all page numbers reference the pagination imprinted on each docket entry by the court's Electronic Case Filing ("ECF") system. Texas Department of Criminal Justice Offender Info on, available at: https://inmate.tdcj.texas.gov (last visited April 3, 2024). 6 UT Health East Texas-Tyler Operative Petition, Docket Entry No. 1-1, pp. 7-9. Note, Exhibit to UT Health East Texas-Tyler Operative Petition, Docket Entry No. 1-1, pp. 13-14. Note, Exhibit to 7 -2- ailments including asthma, hypertension, hyperlipidemia, hypothyroidism, Hepatitis C, and persistent depressive disorder. 8 Invoking 28 U.S.C. § 2241, Sims seeks release to the community under the Americans With Disabilities Act and the Rehabilitation Act. 9 He also asks the court to declare Texas parole laws and the prison "Disciplinary Book" unconstitutional. 10 In his Amended Habeas Corpus Petition, Sims clarifies that he seeks "speedier re e" from custody under the Suspension Clause found in I, § 9 of the United States Constitution ("The Privilege of Arti the Writ of Habeas Corpus shall not be suspended, unless when in Cases of Rebellion or Invasion the public Safety may require it.").11 II. Standard of Review To the extent that the petitioner seeks release from prison, the writ of habeas corpus provides the only remedy for prisoners confinement. challenging the "fact or duration" of v. Rodriguez, 93 S. Ct. 1827, 1841 (1973). Preiser To state a claim for habeas corpus relief a prisoner must show that he is "in custody in violation of the United States[.]" Cons tution or laws or treaties the 28 U.S.C. § 2241(c)(3); see also Hilliard v. Correctional Managed Health Care Mental Health Outpatient s, Exhibit to Petition, Docket Entry No. 1-1, p. 21. 8 Se of tition, Docket Entry No. 1, p. 3. 11 Arnended Habeas Corpus Petition, Docket Entry No. 7. -3- Board of Pardons and Paroles, 759 F.2d 1190, 1192 (5th Cir. 1985} ("[N)either habeas nor civil rights relief can be had absent the allegation by a plaintiff that he or she has been deprived of some right secured to him or her by the United States Constitution or the laws of the United States."} (internal quotation marks and citation omitted). The court is mindful that the petitioner represents himself in Courts are required to give a pro se litigant's this case. contentions a liberal construction. See Erickson v. Pardus, 127 S. Ct. 2197, 2200 (2007) (per curiam) (citation omitted); also Haines v. Kerner, 92 S. Ct. 594, 595-96 (1972) (per curiam) (noting that allegations in a pro se complaint, however inartfully pleaded, are held to less stringent standards than formal pleadings drafted by lawyers). Even under this lenient standard, pro litigants are still required to "properly plead sufficient facts that, when liberally construed, E.E.O.C. v. Simbaki, state Ltd., a plausible 767 F.3d 475, claim to relief[.]" 484 (5th Cir. 2014) (quoting Champion v. United States, 421 F. App'x 418, 423 (5th Cir. 2011); Pickett v. Nunn, 367 F. App'x 536, 537 (5th Cir. 2010)). III. Discussion The pleadings and medical records submitted by Sims are construed to seek speedier release from prison due to his medical condition. Certain inmates confined in TDCJ "may be released" on Medically Recommended Intensive Supervision ("MRIS") if they are found eligible. Tex. Gov't Code -4- § 508.146(a). The Texas Correctional Office on Offenders with Medical or Mental Impairments ("TCOOMMI"), oversees which is a division of TDCJ, release on MRIS. See Hale is the agency that v. Case Collier, No. 1:20-CV-841-RP-SH, 2020 WL 5249532, at *1 (W.D. Tex. Sept. 3, 2020), Report WL 6441099, and Recommendation adopted at *2 (W.D. Tex. Nov. 3, as 2020). modified, 2020 If the TCOOMMI recommends that a state inmate should be released to MRIS, the application is then reviewed by the Texas Board of Pardons and Paroles ("Parole Board"), which has the sole and final authority regarding the release of inmates to MRIS. See id. (citing Tex. Gov't Code § 508.146(e)). A prison inmate no constitutional right to conditional release on parole before the expiration of his sentence. Board of Pardons v. Allen, 107 S. Ct. 2415, 2421 n.10 (1987) (explaining that "statutes or regulations that provide that a parole board 'may' release an inmate on parole do not give rise to a protected liberty interest"); Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 99 S. Ct. 2100, 2105 (1979) (holding that a paro statute that "provides no more than a mere hope that the benefit will be obtained" does not create a liberty interest that is protected by due process); Johnson v. Rodriguez, 110 F.3d 299, 308 (5th Cir. 1997) (holding that state protected liberty rest in parole"); soners in Texas "have no Ex parte Johnson, 541 S.W.3d 827, 830 (Tex. Crim. App. 2017) ("A Texas inmate does not have a liberty interest in release on parole."). -5- The Fifth Circuit and other district courts in Texas have held that state prisoners have "no constitutionally protected interest in release" on MRIS because "the decision whether to release an inmate to MRIS is entirely within the [Parole] Board's discretion." Barker v. Owens, 277 F. App'x 482, 2008 WL 1983782, at *1 (5th Cir. 2008) (per curiam); accord Moore v. TDCJ, No. 3:17-CV-205-D (BH), 2018 WL 4938796, at *4 (N.D. Tex. Sept. 10, 2018), Report and Recommendation adopted, 2018 WL 4932517 (N.D. Tex. Oct. 11, 2018); Foreman v. Director, TDCJ-CID, Civil Action No. 6:1lcvl16, 2011 WL 5080180, at *8 (E.D. Tex. July 12, 2011), Report and Recommendation adopted, 2011 WL 5080174 (E.D. Tex. Oct. 24, 2011); Miller v. Fox, Civil Action No. H-09-2455, 2010 WL 518772, at *4 (S.D. Tex. Feb. 2, 2010). "a claim for either As a result, a Texas inmate cannot state civil rights allegations that he was denied violation of] or habeas relief by his [release on parole or MRIS in due process because he has no constitutionally protected expectancy of release." Hilliard, 759 F.2d at 1192. Because Sims does not establish that he was denied early release in violation of a constitutional right, this proceeding will be dismissed for failure to state a claim on which relief may be granted. IV. Certificate of Appealability Rule 11 of the Rules Governing Section 2254 Cases requires a district court to issue or deny a certificate of appealability when entering a final order that is adverse to the petitioner. -6- A certi cate of appealabil will not issue unless the petitioner makes "a substantial showing of the denial of a constitutional right," 28 U.S.C. § 2253 (c) (2), which requires a petitioner to demonstrate jurists would find the di ct court's assessment of the constitutional claims debatab or wrong." "that reasonable Slack v. McDaniel, 120 S. Ct. 1595, 1606 (2000). jurists of reason would not debate whether the Because Petition was properly dismissed, a certificate of appealability will not issue in this case. V. Conclusion and Order Accordingly, the court ORDERS as follows: 1. The Petition [] r Writ of Habeas Corpus Pursuant to 28 U.S.C. [§] 2241 (Docket Entry No. 1) filed by Danny J. Sims is DISMISSED WITH PREJUDICE. 2. A certificate of appealability is DENIED. The Clerk shall provide a copy of this Memorandum Opinion and Order to the petitioner. SIGNED at Houston, Texas, on this the 3rd day of April, 2024. 7 SIM LAKE SENIOR UNITED STATES DISTRICT JUDGE -7-
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