Hebert v. Lacy

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Case 4:25-cv-03926 Document13_ Filed on 11/20/25 in TXSD Page 1 of 4
United States District Court

Southem District of Texas
ENTERED
November 24, 2025
IN THE UNITED STATES DISTRICT COURT N
lathan Ochsner, Clerk
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
BENNY HEBERT, a/k/a
BENNY HERBERT,
Petitioner,
Vv. CIVIL ACTION NO. H-25-3926

ROBERT LACY, JR.,

CO? LO? 6? CO? CO CO? CD {> LOD COD

Respondent.
MEMORANDUM OPINION AND ORDER
Petitioner, a state parolee currently in federal pretrial detention at the Joe Corley
Processing Center, filed this habeas petition under 28 U.S.C. § 2254 claiming that the Texas
Department of Criminal Justice (“TDCJ”) denied him certain jail time credits in 2021.
Having considered the petition, matters of public record, and the applicable law, the
Court DISMISSES the petition for the reasons shown below.
I. BACKGROUND
Petitioner reports, and public state court records show, that he pleaded guilty to
evading arrest with a motor vehicle in Harris County, Texas in 2021 and was sentenced to
a five-year term of imprisonment in TDCJ. See State v. Hebert, Cause No. 162901901010
in the 338th Judicial District Court of Harris County, Texas. The state trial court gave

petitioner 487 days of jail time credit towards execution of the sentence.

Case 4:25-cv-03926 Document13_ Filed on 11/20/25 in TXSD_ _— Page 2 of 4

Petitioner states that, upon his arrival at TDCJ in 2021, prison officials did not give
him the full 487 days of jail time credit towards his sentence. Petitioner was subsequently
released to parole in 2024 and was to remain on parole until August 31, 2025. While on state
parole, petitioner was arrested in April 2024 on multiple federal firearm and drug charges.
Petitioner remains in federal pretrial custody awaiting trial on the charges. United States v.
Herbert, Criminal Action No. 4:24-cr-248 (S.D. Tex.).

Petitioner claims in the instant habeas petition that TDCJ prison officials gave him
only 312 days of jail time credit towards execution of his sentence. He seeks immediate
discharge of his state sentence. '

Il. ANALYSIS

Although petitioner filed his instant time credit claims as a habeas petition under 28
U.S.C. § 2254, he is currently in federal custody at the Joe Corley Processing Center. He
does not challenge the validity of his federal pretrial detention. However, a Texas prisoner
who has been released to state parole remains in legal custody of TDCJ pursuant to his state
court conviction. Ex parte Elliott, 746 S.W.2d 762, 763 n.1 (Tex. Crim. App. 1988) (holding
that during his term of parole, a parolee is “in custody” and “confined”). Petitioner does not

allege that his parole has been revoked. Thus, at the time petitioner was arrested and placed

'Petitioner also seeks an award of punitive damages. It has long been recognized that the
sole function of a habeas petition is to obtain relief from unlawful imprisonment or custody; it
cannot be used properly for any other purpose. Pierre v. United States, 525 F.2d 933, 935-36
(Sth Cir. 1976). Petitioner’s request for punitive damages is not available to him in this habeas
proceeding.

Case 4:25-cv-03926 Document13_ Filed on 11/20/25 in TXSD Page 3 of 4

in federal pretrial detention, he was in legal custody of TDCJ. Consequently, under
Galbraith v. Hopper, 151 F.4th 795, 802-03 (Sth Cir. Aug. 20, 2025), petitioner’s habeas
petition must be reviewed under both 28 U.S.C. § 2241 and § 2254, and his petition is subject
to the restrictions imposed by 28 U.S.C. § 2244(b)(1).

Under § 2244(b)(1), “A claim presented in a second or successive habeas corpus
application under section 2254 that was presented in a prior application shall be dismissed.”
Petitioner filed an earlier § 2254 habeas petition in September 2022 raising his claim that
TDCI officials failed to give him the full 487 days of jail time credit towards his sentence.
Hebert v. Lumpkin, C.A. No. 1:22-cv-0116 (S.D. Tex.). The Court dismissed the petition
with prejudice as barred by the applicable one-year statute of limitations on October 11,
2023. The Court further noted that petitioner had failed to exhaust his state court remedies.
Petitioner did not appeal the dismissal.

The instant petition is a second or successive habeas petition that raises the claim that
was adjudicated and dismissed with prejudice in petitioner’s 2022 habeas lawsuit.

Accordingly, the instant claim is barred by § 2244(b)(1) and must be dismissed.’

*Petitioner has yet to exhaust his claim through the Texas Court of Criminal Appeals, and
the unexhausted claim is subject to dismissal for lack of jurisdiction pursuant to 28 U.S.C. §
2254(b)(1). Nevertheless, the Court is dismissing this case pursuant to § 2244(b)(1) and not for
failure to exhaust. 28 U.S.C. § 2254(b)(2).

Case 4:25-cv-03926 Document13_ Filed on 11/20/25 in TXSD Page 4 of 4

II. CONCLUSION
For the above reasons, this lawsuit is DISMISSED WITH PREJUDICE. Any and
all pending motions are DISMISSED AS MOOT. A certificate of appealability is
DENIED.

fr
Signed at Houston, Texas, on this the = Ohay of November, 2025.

XZ. GLE thd

KEITH P. ELLISON
UNITED STATES DISTRICT JUDGE