Davis v. Guerrero

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
JOHNNY LEE DAVIS,
Petitioner,
VS.
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§
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§
CIVIL ACTION NO. 2:25-CV-00068
ERIC GUERRERO,
Respondent.
MEMORANDUM AND RECOMMENDATION
Petitioner is a state prisoner currently incarcerated at the McConnell Unit in
Beeville, Texas. Proceeding pro se, he filed this habeas corpus petition pursuant to 28
U.S.C. § 2254, claiming the Texas Department of Criminal Justice (“TDCJ”) is violating
his due process rights by keeping him in custody. (D.E. 1). Petitioner asserts he has
completed his 18-year sentence for criminal solicitation of murder, and he should have
been released on mandatory supervision. (D.E. 1). Pending is Respondent’s Motion for
Summary Judgment. (D.E. 15). Petitioner has filed a Response. (D.E. 17 and D.E. 19).
For the reasons stated below, it is respectfully RECOMMENDED Respondent’s Motion
for Summary Judgment be GRANTED (D.E. 15), this habeas petition be DISMISSED,
and Petitioner be DENIED a certificate of appealability.
I. JURISDICTION
The Court has jurisdiction over the subject matter and the parties pursuant to 28
U.S.C. §§ 2241, 2254, which provides that jurisdiction is proper where the inmate is
United States District Court
Southern District of Texas
ENTERED
January 30, 2026
Nathan Ochsner, Clerk
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confined or where the conviction was obtained. Wadsworth v. Johnson, 235 F.3d 959, 961-
62 (5th Cir. 2000). Petitioner is currently incarcerated in Beeville, Texas. Further,
Petitioner’s was convicted in Aransas County, Texas. Therefore, jurisdiction is proper in
this Court. 28 U.S.C. § 124(b)(6).
II. BACKGROUND
As Plaintiff is not challenging his underlying conviction, the undersigned does not
include it here at length. Additionally, it has been included in the Thirteenth Court of
Appeals’ opinion, in a previous M & R and Order in this Court and in the pending summary
judgment motion. (D.E. 15, Pages 4-7); (Davis v. Davis, No. 2:20-cv-162, 2:20-cv-162,
2021 WL 4393152, at *1-3 (S.D. Tex. Mar. 15, 2021), adopted as modified, 2021 WL
491569 (S.D. Tex. Sept. 24, 2021) at D.E. 12-2, D.E. 12-7, Pages 31-33; D.E. 23 and D.E.
29). In short, Petitioner was convicted in February 2017 after a jury trial of criminal
solicitation of murder, as a second-degree felony pursuant to Texas Penal Code §15.03,
and sentenced to 18 years’ incarceration. The victim was the former girlfriend of
Petitioner’s son, and the motive was to prevent her from testifying against his son in a
criminal proceeding which was scheduled for the same day on which her body was found
shot in the head. Petitioner, a member of the Dirty White Boys gang, was not convicted of
soliciting his son’s best friend, who actually committed the murder and was living with
Petitioner’s family, but of soliciting his son’s godfather, an Aryan Circle gang member, to
arrange the murder of his son’s former girlfriend, even offering him $10,000 “if it could be
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done.” (D.E. 15, Page 5). Petitioner appealed and filed several habeas petitions, both state
and federal, and his conviction was upheld.
The State of Texas Board of Pardons and Paroles (“parole board”) denied
Petitioner’s release to mandatory supervision on February 1, 2024. (D.E. 6-1, Page 28).1
Petitioner challenged the denial, filing a state habeas petition which was denied by the
Court of Criminal Appeals without written order on May 22, 2024. (D.E. 15, Pages 2-3).2
The next year, Petitioner was again reviewed for release to mandatory supervision and on
February 3, 2025, he was again denied. (D.E. 6-1, Page 29).3 The record indicates
Petitioner’s next mandatory supervision review date by the parole board is this month,
January 2026. (D.E. 6-1, Page 29). TDCJ lists Petitioner’s projected release date as
1Petitioner was denied parole each year from 2018 to 2023. (D.E. 6-1, Pages 22-27). As to his
2024 denial of release to mandatory supervision, the parole board found the record indicates: “the
offender has repeatedly committed criminal episodes that indicate a predisposition to commit
criminal acts upon release,” “the instant offense has elements of brutality, violence, assaultive
behavior, or conscious selection of victim’s vulnerability indicating a conscious disregard for the
lives, safety, or property of others such that the offender poses a continuing threat to public safety,”
“excessive substance use involvement,” “unsuccessful periods of supervision on previous
probation, parole, or mandatory supervision that resulted in incarceration, including parole-in-
absentia,” “the offender’s accrued good conduct time is not an accurate reflection of the offender’s
potential for rehabilitation,” and “the offender’s release would endanger the public.” (D.E. 6-1,
Page 28). The denial states that while all these indications apply to Petitioner, “only one is
required” to deny his release. (D.E. 6-1, Page 28).
2Respondent’s counsel refers to the state habeas record in the pending Motion but failed to file any
such record in this case or to cite to this Court’s docket entries as ordered. (D.E. 6 and D.E. 15).
However, Petitioner indicates in his Petition that on May 22, 2024, the Court of Criminal Appeals
denied his state habeas corpus petition challenging the 2024 denial of his release by the parole
board. (D.E. 1).
3The listed reasons for the 2025 denial were the same as those for the 2024 denial with the addition
that the record indicates the “length of time served by the offender is not congruent with offense
severity and criminal history.” (D.E. 6-1, Page 29).
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November 3, 2034.4 (D.E. 6-1, Page 21). On February 26, 2025, Petitioner filed this case,
challenging the 2024 parole board’s denial of his release to mandatory supervision,
asserting his continued imprisonment violates his due process rights because he has a
liberty interest in being released to mandatory supervision and requesting he “be reviewed
properly by the Texas Parole Board and immediately released to mandatory supervision.”
(D.E. 1, Page 16).5
III. ANTITERRORISM AND EFFECTIVE DEATH PENALTY ACT OF 1996
(“AEDPA”) 28 U.S.C. §2254
Federal habeas corpus petitions are governed by the AEDPA. Relief shall not extend
to a prisoner unless he is “in custody in violation of the Constitution or laws or treaties of
the United States.” 28 U.S.C. §§ 2241(c)(3) & 2254(a); Brecht v. Abrahamson, 507 U.S.
619, 633-34 (1993). Thus, in order to state a claim for federal habeas corpus relief
Petitioner must establish a constitutional violation.
4Release date and parole eligibility information is available on the TDCJ website by searching for
an offender’s name. See https://offender.tdcj.texas.gov/OffenderSearch/ (last visited January 26,
2026).
5As noted by Respondent, while Petitioner references the parole board’s denial of mandatory
supervision in 2025, he has not exhausted any claims challenging this denial. (D.E. 6-1, Page 29
and D.E. 15, Page 9, FN 4). Therefore, to the extent Petitioner is challenging the 2025 denial of
release to mandatory supervision, the undersigned recommends these claims be dismissed as
unexhausted because they have not been presented to the Texas Court of Criminal Appeals.
Washington v. Dretke, No. H-06-1814, 2006 WL 1663387, at *1 (S.D. Tex. June 12, 2006) (“The
exhaustion requirement applies to prisoners challenging a denial of release to mandatory
supervision.”) (citation omitted). The undersigned does note any challenges to the 2025 denial for
the same grounds alleged in the current petition for the 2024 denial would likely be unsuccessful
for the same reasons stated herein.
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A prisoner does not have a constitutional right to release before the expiration of a
valid sentence. Greenholtz v. Inmates of the Neb. Penal & Corr. Complex, 442 U.S. 1, 7
(1979). Furthermore, the U.S. Constitution does not guarantee an inmate good-time credit
for satisfactory behavior while in prison. Wolff v. McDonnell, 418 U.S. 539, 557 (1974).
However, state laws may create a constitutional expectancy of early release. Malchi v.
Thaler, 211 F.3d 953, 957 (5th Cir. 2000). In Texas, it is well established that only inmates
who are eligible for mandatory supervision have a liberty interest in good-time credits and
a constitutional expectancy of early release. Id. To establish a constitutional violation
Petitioner must show that he has a constitutional expectancy of early release. Id. Whereas
an inmate’s release on parole is wholly discretionary, an inmate’s release on mandatory
supervision is required, subject to several exceptions later discussed in this M & R, when
the “actual calendar time the inmate has served plus any accrued good conduct time equals
the term to which the inmate was sentenced.” Tex. Gov’t Code § 508.147(a). Here, there
is no dispute that Petitioner is eligible for release to mandatory supervision.
IV. SUMMARY JUDGMENT
In deciding a motion for summary judgment, the district court must determine
whether there is no genuine issue as to any material fact and the moving party is entitled to
judgment as a matter of law. Fed. R. Civ. P. 56. Generally, Rule 56 applies to federal
habeas corpus cases. Clark v. Johnson, 202 F.3d 760, 764-65 (5th Cir. 2000). Once the
movant presents a properly supported motion for summary judgment the burden shifts to
the non-movant to present significant evidence of the existence of a genuine issue of
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material fact. Hamilton v. Segue Software, Inc., 232 F.3d 473, 477 (5th Cir. 2000) (citation
omitted). The court applies general summary judgment standards to the extent they do not
conflict with the AEDPA. See Smith v. Cockrell, 311 F.3d 661, 668 (5th Cir. 2002) (“[Rule
56] applies only to the extent that it does not conflict with the habeas rules.”), abrogated
on other grounds by Tennard v. Dretke, 542 U.S. 274 (2004). Considering these standards,
the undersigned has reviewed the merits of the Petitioner’s claims and Respondent’s
Motion for Summary Judgment.
V. DISCUSSION
Considering Petitioner’s claims on the merits related to the parole board’s denial of
his release to mandatory supervision in February 2024, the undersigned recommends they
fail.
In his first two grounds for relief, Petitioner asserts the parole board violated his due
process rights. (D.E. 1, Pages 6-8 and D.E. 19, Pages 6-9). More specifically, Petitioner
argues he has reached “109% completion of his imposed sentence as of 11/22/2024” and
therefore, the parole board “violated the 5th and 14th Amend. protections when deciding
not to release [him] to mandatory supervised release upon completion of his sentence.”
(D.E. 1, Page 6 and D.E. 19, Pages 6-9). Petitioner further argues his “substantive due
process protected by the 5th and 14th Amend. to the U.S. Const.” was violated by the parole
board because he “had no opportunity to dispute any evidence used against him to deny
release either to weight or accuracy.” (D.E. 1, Page 8 and D.E. 19, Pages 6-9). He also
asserts he was deprived of “his liberty [interest] (release) and property (good-time credits)
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because the decision was “arbitrary and capricious” without evidence in the record, noting
he has been denied parole and release to mandatory supervision multiple times for the same
reasons. (D.E. 1, Page 8 and D.E. 19, Pages 6-9).
Prisoners are not wholly stripped of all constitutional protections when imprisoned.
Wolff, 418 U.S. at 555. While the Fifth Circuit has determined that prisoners have a
constitutional expectation of early release under the mandatory supervision program in
Texas, good time credits do not actually reduce an inmate’s sentence, applying only to
eligibility for mandatory supervision. Malchi, 211 F.3d at 957-58; Clay v. Lumpkin, No.
A-19-CV-1241-RP, 2020 WL 5865986, at *3 (W.D. Tex. Oct. 1, 2020) (“As a matter of
state law, good and work time credits apply only to eligibility for parole or mandatory
supervision and do not otherwise have any effect on the length of sentence imposed on an
inmate) (citations omitted).6 Therefore, the good time credits Petitioner references he has
earned do not reduce his sentence requiring the parole board to release him to mandatory
supervision, it simply makes him eligible for release. This is made clear by Tex. Gov’t
Code Ann. § 508.149(b), the law in effect at the time Petitioner’s offense was committed
6As to release on parole, it is entirely speculative and therefore, there is no constitutional
expectancy of parole in Texas. Madison v. Parker, 104 F.3d 765, 768 (5th Cir. 1997) (citation
omitted). As such, to the extent Petitioner is also contesting that he was or is being improperly
denied parole, this does not implicate due process or provide a basis for federal habeas corpus
relief. Greenholtz, 442 U.S. at 7-8 (States have no duty to establish a parole system and a prisoner
has no constitutional right to be released before the expiration of his sentence); Orellana v. Kyle,
65 F.3d 29, 32 (5th Cir. 1995) (There is no liberty interest in obtaining parole in Texas and
therefore prisoners “cannot complain of the constitutionality of procedural devices attendant to
parole decisions”). Becoming eligible for parole consideration does not reduce an inmate’s
original sentence or entitle that inmate to release.
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and now, stating: “An inmate may not be released to mandatory supervision if a parole
board determines that: (1) the inmate’s accrued good conduct time is not an accurate
reflection of the inmate’s potential for rehabilitation; and (2) the inmate’s release would
endanger the public.” As discussed above, the parole board here determined Petitioner’s
“accrued good conduct time is not an accurate reflection of the offender’s potential for
rehabilitation,” and his “release would endanger the public,” among other reasons. See FN
1; (D.E. 6-1, Page 28).
Additionally, as the Fifth Circuit has held that Texas’ mandatory supervision
scheme does create a constitutional expectancy of early release for eligible inmates, it has
also determined there is a protected liberty interest entitling an inmate to minimum due
process protection. Shaw v. Davis, No. 4:15-cv-515-A, 2016 WL 5719739, at *2-3 (N.D.
Tex. Sept. 28, 2016). This includes “that an eligible inmate be provided timely notice of
the specific month and year he will be considered for mandatory supervision release and a
meaningful opportunity to be heard-i.e., an opportunity to tender or have tendered to the
Board information in support of release.” Id. at *3 (citations omitted). “Additionally, if
release is denied, the inmate must be informed in what respects he falls short of qualifying
for early release.” Id. (citations omitted). Here, Petitioner received a timely notice on
September 13, 2024, which he signed, that he would be considered for mandatory
supervision release, he was given the opportunity to present evidence to the parole board
in support of his release as stated in that notice, after the parole board met he was given the
reasons for the denial of his release to mandatory supervision and the month and year he
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would next be considered. (D.E. 6-1, Page 28 and D.E. 15-1). Therefore, “he received all
the due process to which he was entitled” and the parole board “is not required to be more
specific when stating the reasons for its decision or to provide evidence in support of its
decision.” Shaw, 2016 WL 5719739, at *3 (citing Greenholtz, 442 U.S. at 15) (“[H]olding
due process does not require a parole board to provide specific evidentiary support for its
decisions” when denying an inmate release to mandatory supervision) and (citing Boss v.
Quarterman, 552 F.3d 425, 427-29 (5th Cir. 2008) (“[H]olding due process does not
require further explanation than the ‘paragraphs cut verbatim from the Parole Board’s
Directives’” when denying an inmate release to mandatory supervision)).
Therefore, the undersigned recommends Petitioner fails to identify any due process
violations and Petitioner is instead asking this Court to reconsider the parole board’s
decision to deny him release to mandatory supervision.
In his third ground for relief, Petitioner asserts he is “serving the same sentence a
second time in violation of the double jeopardy clause” because “his actual calendar time
served plus his accrued good conduct time has satisfied his sentence.” (D.E. 1, Page 9 and
D.E. 19, Page 9). The double jeopardy clause protects against prosecution for the same
offense after acquittal, prosecution of the same offense after conviction and multiple
punishments for the same offense. United States v. Berry, 977 F.2d 915, 918 (5th Cir.
1992) (citation omitted). Petitioner received one punishment for his offense—an 18-year
sentence of imprisonment. Petitioner does not show he was subjected to multiple
punishments for the same offense when he was denied release on mandatory supervision
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or that the Double Jeopardy Clause of the Constitution otherwise applies. Sumstad v.
Lumpkin, No. H-22-1769, 2023 WL 4424265, at *5 (S.D. Tex. July 7, 2023) (“The Fifth
Circuit and other courts have uniformly held that the denial of release on parole does not
constitute additional punishment, and therefore, the Double Jeopardy Clause does not
apply.”) (citations omitted); Russell v. Cockrell, No. 3:01-cv-1425-D, 2003 WL 21750862,
*8 (N.D. Tex. July 25, 2003) (“The Fifth Circuit has declined to extend the protections of
the double jeopardy clause to parole revocation. Such protections likewise do not extend
to denials of release on mandatory supervision or parole.”) (citation omitted).
In his final ground for relief, Petitioner argues he “is being denied equal protection
of the law and his confinement has become constitutionally excessive” because the parole
board is “denying him programs and services that are given to other inmates which deletes
him from consideration to release to mandatory supervision” and his “time in custody
compared to other inmates with 2nd degree felon[ies] and 1st timers in TDCJ has become
excessive.” (D.E. 1, Page 11 and D.E. 19, Page 10). The equal protection clause requires
similarly situated persons to be treated alike. Cleburne v. Cleburne Living Ctr., Inc., 473
U.S. 432, 439 (1985). To establish an equal protection claim, a petitioner must show (1)
the state created two or more classifications of similarly situated prisoners that were treated
differently; and (2) the classification had no rational relation to any legitimate
governmental objective. Johnson v. Rodriguez, 110 F.3d 299, 306-07 (5th Cir. 1997).
Petitioners may also state equal protection claims if they demonstrate disparate treatment
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motivated by an illegitimate animus or subjective ill-will. Village of Willowbrook v. Olech,
528 U.S. 562, 564 (2000).
Here, Petitioner provides no evidence that he has been treated differently from other
similarly situated inmates who have been convicted of criminal solicitation of murder and
sentenced to 18 years’ incarceration.7 Similarly, he provides no evidence demonstrating
he has been singled out for ill treatment for any impermissible reason.8 Further, Petitioner
has provided no evidence in support of his assertions. Therefore, Petitioner has not shown
the requisite disparate treatment and, accordingly, the undersigned recommends he has
failed to establish a denial of equal protection. Ross v. Estelle, 694 F.2d 1008, 1012 (5th
Cir. 1983) (“Absent evidence in the record, a court cannot consider a habeas petitioner’s
7In his response, Petitioner lists several former inmates who were released on parole or to
mandatory release after serving less time in incarceration than they were sentenced. (D.E. 19,
Page 10). However, Petitioner has not shown these former inmates were similarly situated. In
fact, none listed were convicted of criminal solicitation of murder. Instead, they were convicted of
theft, burglary and aggravated assault. Further, no other information, such as their criminal history,
institutional record, age or reason for their early release, is included. Merely asserting an inmate
is similarly situated because he received a “comparable sentence” does not, without more, meet
Petitioner’s burden showing he is similarly situated to other inmates. (D.E. 19, Page 10); Striz v.
Collier, No. 2:18-cv-202, 2020 WL 7868102, at *12 (S.D. Tex. Nov. 24, 2020) (citations omitted).
8Petitioner conclusory asserts he is being denied “programs and services that are offered to other
inmates but not him,” and has “never been offered any assessment for rehabilitation which deletes
him from parole consideration and /or mandatory supervised release.” (D.E. 19, Pages 7 and 10).
Therefore, to the extent Petitioner seeks to challenge conditions of his confinement, including a
denial of rehabilitative programs, such a claim must be brought in a civil rights complaint pursuant
to 42 U.S.C. § 1983 against the individual employee(s) responsible for the alleged denial of his
constitutional rights rather than a habeas corpus petition. However, the undersigned notes it is
clearly established that inmates have no constitutional right to participate in rehabilitative or
educational programs while incarcerated. Gibson v. Fed. Bureau of Prisons, 121 F. App’x 549,
551 (5th Cir. 2004) (citing Moody v. Doggett, 429 U.S. 78, 88 (1976) and Bulger v. U.S. Bureau
of Prisons, 65 F.3d 48, 49 (5th Cir. 1995) (Finding no federal constitutional right to participate in
an education or rehabilitative program while incarcerated)).
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bald assertions on a critical issue in his pro se petition (in state and federal court), to be of
probative evidentiary value” as “mere conclusory allegations do not raise a constitutional
issue in a habeas proceeding.”) (citations omitted); Clark v. Owens, 371 F. App’x 553, 554
(5th Cir. 2010) (Finding pro se plaintiff’s “conclusory assertions that he was treated
differently than other similarly situated inmates are insufficient to state an equal protection
claim” when challenging his repeated denial of parole as unconstitutional).
VI. CERTIFICATE OF APPEALABILITY
An appeal from the final order in a habeas corpus proceeding may not be taken to
the Court of Appeals, “unless a circuit justice or judge issues a certificate of appealability.”
28 U.S.C. § 2253(c)(1)(A). A certificate of appealability (“COA”) will not be granted
unless the petitioner makes a substantial showing of the denial of a constitutional right.
Miller-El v. Cockrell, 537 U.S. 322, 336 (2003). The district court is in the best position
to determine if the petitioner has made a substantial showing, therefore, it is recommended
that the district court rule on Petitioner’s relief sua sponte. Alexander v. Johnson, 211 F.3d
895, 898 (5th Cir. 2000) (per curiam).
The undersigned recommends Petitioner’s claims be denied on the merits. The
COA determination under Section 2253(c) requires an overview of the habeas petition and
a general assessment of the merits. Miller-El, 537 U.S. at 336. As to claims rejected solely
on the merits, “[t]he petitioner must demonstrate that reasonable jurists would find the
district court’s assessment of the constitutional claims debatable or wrong.” Slack v.
McDaniel, 529 U.S. 473, 484 (2000). The Petitioner must show that issues are debatable
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among reasonable jurists, and courts could resolve the issues differently. Alexander, 211
F.3d at 896.
In this case, reasonable jurists would not debate the dismissal of the federal writ of
habeas corpus under Section 2241, nor find that the issues are adequate to deserve
encouragement to proceed. Miller-El, 537 U.S. at 327. Accordingly, it is respectfully
recommended that the Court not issue a COA.
VII. RECOMMENDATION
For the reasons stated below, it is respectfully RECOMMENDED Respondent’s
Motion for Summary Judgment be GRANTED (D.E. 15), this habeas petition be
DISMISSED, and Petitioner be DENIED a certificate of appealability.
Respectfully submitted on January 30, 2026.
_______________________________
Jason B. Libby
United States Magistrate Judge
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NOTICE TO PARTIES
The Clerk will file this Memorandum and Recommendation and transmit a copy to
each party or counsel. Within FOURTEEN (14) DAYS after being served with a copy of
the Memorandum and Recommendation, a party may file with the Clerk and serve on the
United States Magistrate Judge and all parties, written objections, pursuant to Fed. R. Civ.
P. 72(b), 28 U.S.C. § 636(b)(1), General Order No. 2002-13, United States District Court
for the Southern District of Texas.
A party’s failure to file written objections to the proposed findings, conclusions, and
recommendation in a magistrate judge’s report and recommendation within FOURTEEN
(14) DAYS after being served with a copy shall bar that party, except upon grounds of
plain error, from attacking on appeal the unobjected-to proposed factual findings and legal
conclusions accepted by the District Court. Douglass v. United Servs. Auto Ass’n, 79 F.3d
1415 (5th Cir. 1996) (en banc).
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