Opinion
3:01-CV-665-P.
May 8, 2001
FINDINGS, CONCLUSIONS AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE
Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the Court, this case has been referred to the United States magistrate judge. The findings, conclusions and recommendation of the magistrate judge, as evidenced by his signature thereto, are as follows:
FINDINGS AND CONCLUSIONS:
Type of Case: This is a petition for habeas corpus relief filed by a state inmate pursuant to 28 U.S.C. § 2254.
Parties: Petitioner is currently confined at the Telford Unit of the Texas Department of Criminal Justice — Institutional Division (TDCJ-ID) in New Boston, Texas. Respondent is Gary Johnson, Director of the TDCJ-ID. The court has not issued process in this case.
Statement of Case: On October 21, 1991, Petitioner was convicted of murder in the 363rd Judicial District Court, Dallas County, Texas. Punishment was assessed at twenty years in the TDCJ-ID. (Petition ¶¶ 1-4).
In this action, Petitioner challenges a disciplinary sanction that he received on November 30, 2000, at the Boyd Unit. (Petition ¶¶ 17 and 18). He received the following punishment as a result of the disciplinary action taken: (1) he was confined for 15 days in solitary confinement; (2) his classification was reduced from S3 to Line 1; and (3) he lost 150 days of accrued good-time credits. (Petition ¶ 18). Prior to filing this action, Petitioner exhausted his administrative remedies. (Petition ¶ 19).
Findings and Conclusions: Rule 4, of the Rules Governing Section 2254 Cases in the United States District Courts, provides that "[i]f it plainly appears from the face of the petition and any exhibit annexed to it that the petitioner is not entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the petitioner to be notified." Federal habeas relief cannot be had "absent the allegation by a [petitioner] 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 ." Orellana v. Kyle, 65 F.3d 29, 31 (5th Cir. 1995), cert. denied, 516 U.S. 1059
(1996). The instant petition does not present any cognizable basis for habeas corpus relief. The petition contends that prison officials denied Petitioner due process protection during the disciplinary proceeding identified above. Specifically the petition asserts the disciplinary charge was filed in retaliation for the filing of complaints and grievances; the evidence was insufficient to support the disciplinary hearing officer's guilty finding; the hearing officer violated Petitioner's due process rights and violated his discretion. (Petition ¶ 20).
Prisoners charged with rule violations are entitled to certain due process rights under the Fourteenth Amendment when the disciplinary action may result in a sanction that will impinge upon a liberty interest. In Sandin v. Conner, 515 U.S. 472, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995), the Supreme Court held that a prisoner's liberty interest is "generally limited to freedom from restraint which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." Id. at 484, 115 S.Ct. at 2300. In Texas, only sanctions that result in the loss of good-time credits for inmates who are eligible for release on mandatory supervision or that otherwise directly and adversely affect release on mandatory supervision will impose upon a liberty interest. See Malchi v. Thaler, 211 F.3d 953, 957-58 (5th Cir. 2000); Madison v. Parker, 104 F.3d 765, 768 (5th Cir. 1997); see also Orellana, 65 F.3d at 31-33; Murphy v. Collins, 26 F.3d 541, 543 n. 5 (5th Cir. 1994).
Liberally construed Petitioner's habeas corpus action is based on his claim that the forfeiture of 150 days of good-time credits, imposed as a result of the disciplinary conviction in this case, implicates the Due Process Clause because it has delayed his release under Texas's mandatory supervision law.
The Fifth Circuit Court of Appeals recently held that "there is a constitutional expectancy of early release created by Texas's mandatory supervision scheme in place prior to September 1, 1996[,] for earned good time credits." Malchi, 211 F.3d at 958. Petitioner was convicted of murder on October 21, 1991. Thus, he is covered by the mandatory supervision statute in effect prior to September 1, 1996. That statute, however, excepts from mandatory supervision any inmate who was convicted of murder. See Tex. Code Crim. P. Ann. art. 42.18 § 8(c)(1) (West 1995). The loss of good-time credits in Petitioner's case does not affect the fact or duration of his sentence and, therefore, does not implicate due process concerns.
Texas revised statute also excepts from mandatory supervision individuals convicted of murder. See Tex. Govt Code § 508.149(a)(2) (West 2000).
Insofar as Petitioner contends that the loss of good-time credits affects his release on parole, his claim fares no better. In Madison, the Fifth Circuit held that because it is entirely speculative whether a prisoner will be released on parole, there is no constitutional expectancy to parole in Texas. 104 F.3d at 768; see also Malchi, 211 F.3d at 957.
Nor do any of the other sanctions, which Petitioner received for the disciplinary conviction, affect the fact or duration of his sentence, thereby depriving him of a liberty interest. Discipline in solitary confinement for fifteen days does not implicate a protected liberty interest. Inmates do not have a liberty interest in remaining in general population. See Sandin v. Conner, 515 U.S. 472, 486, 115 S.Ct. 2243, 2301, 132 L.Ed.2d 418 (1995) (thirty days of segregated confinement did not exceed similar, but totally discretionary confinement in either duration or degree of restriction, and thus did not implicate due process liberty interest). Similarly, the change in Petitioner's custodial status, which may affect the future earning of good-time credits, does not deprive him of a protected liberty interest. In Malchi, the Fifth Circuit held that the effect of a change in a prisoner's good-time earning status on the timing of his release on parole was too speculative to afford him a constitutionally cognizable "right" to a particular time-earning status. 211 F.3d at 959.
Because none of the sanctions that Petitioner received for the disciplinary conviction deprived him of a protected liberty interest, he was not entitled to due process protection in the course of the disciplinary proceeding. Petitioner's habeas corpus petition does not present a cognizable basis for habeas relief and should be summarily dismissed.
RECOMMENDATION:
For the foregoing reasons, it is recommended that the petition for a writ of habeas corpus be summarily dismissed pursuant to Rule 4 of the Rules Governing Section 2254 Cases.
A copy of this recommendation will be transmitted to Petitioner.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant to Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten-day period may bar a de novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.