McCullough v. Quarterman

Filing 5

MEMORANDUM ORDER overruling petitioner's objections and adopting the magistrate judge's 2 Report and Recommendation. Signed by Judge Thad Heartfield on 4/19/2010. (bjc, )

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS BEAUMONT DIVISION MICHAEL D. MCCULLOUGH VS. NATHANIEL QUARTERMAN CIVIL ACTION NO. 1:09cv497 MEMORANDUM ORDER OVERRULING PETITIONER'S OBJECTIONS AND ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION Petitioner Michael D. McCullough, an inmate confined at the Stiles Unit of the Texas Department of Criminal Justice, Correctional Institutions Division, proceeding pro se, brought this petition for writ of habeas corpus pursuant to 28 U.S.C. 2254. The court referred this matter to the Honorable Keith F. Giblin, United States Magistrate Judge, at Beaumont, Texas, for consideration pursuant to applicable laws and orders of this court. The Magistrate Judge recommends the petition be denied. The court has received and considered the Report and Recommendation of United States Magistrate Judge filed pursuant to such order, along with the record, pleadings and all available evidence. Petitioner filed objections to the magistrate judge's Report and Recommendation. The court conducted a de novo review of the objections in relation to the pleadings and the applicable law. See FED. R. CIV. P. 72(b). After careful consideration, the court concludes petitioner's objections should be overruled. Under Texas law, a prisoner may be released early on parole, which is a discretionary and conditional release where the prisoner serves the remainder of his sentence under the control of the pardons and paroles division. Madison v. Parker, 104 F.3d 765, 768 (5th Cir. 1997). It is entirely speculative whether an inmate will be released on parole, therefore, there is no constitutional expectancy of parole in Texas. Id. Thus, the punishment received did not impose upon a protected liberty interest. ORDER Accordingly, petitioner's objections are OVERRULED. The findings of fact and conclusions of law of the magistrate judge are correct and the report of the magistrate judge is ADOPTED. A final judgment will be entered in this case in accordance with the magistrate judge's recommendations. SIGNED this the 19 day of April, 2010. ____________________________ Thad Heartfield United States District Judge 2

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