Opinion
3:01-CV-1090-H
April 17, 2002
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 brought by a state prisoner pursuant to 28 U.S.C. § 2254.
Parties: Petitioner is currently confined at the Michael Unit of the Texas Department of Criminal Justice — Institutional Division (TDCJ-ID) in Tennessee Colony, Texas. Respondent is the Director of the TDCJ-ID.
Statement of Case: On May 20, 1981, following a plea of not guilty, a jury convicted Petitioner of aggravated rape in the 203rd Judicial District Court, Dallas County, Texas, Cause No. F81-3705-P. Punishment was assessed at life imprisonment in the TDCJ-ID. (Pet. at 2 and Respondent's exh. A).
In this action, Petitioner challenges two disciplinary proceedings, No. 20000278149 — for possessing a deadly weapon — and No. 20010104801 — for extortion of money — which occurred at the Michael Unit on May 19 and December 27, 2000, respectively. (Petition at 5). He received the following punishment as a result of the first disciplinary action: he was placed in solitary confinement; his classification was reduced from S-3 to L-2; he lost forty-five days of recreation and commissary privileges, and he lost 365 days of good-time credits. As a result of the second disciplinary action, Petitioner received the following punishment: his classification was reduced from L-2 to L-3, he lost fifteen days of recreation and commissary privileges, and he lost 100 days of good-time credits.
On February 27, 2001, Petitioner filed a state habeas application pursuant to art. 11.07, Texas Code of Criminal Procedure, challenging the first disciplinary proceeding. See Ex parte Brown, No. 11,906-08, at 2. On June 27, 2001, the Texas Court of Criminal Appeals denied the application without a written order on the findings of the trial court without a hearing. Id. at cover. Petitioner has exhausted his administrative remedies regarding the second disciplinary proceeding. (See Resp.'s Answer at 3 and Exh. D).
In its findings and conclusions, the state trial court found that Petitioner's claims were not cognizable in a state writ application. See Ex part Brager, 704 S.W.2d 46 (Tex.Crim.App. 1986) (holding that Court of Criminal Appeals will not entertain claims concerning alleged violations of prison disciplinary procedures).
Petitioner raises the following grounds regarding disciplinary Case No. 20000278149:
(a) TDCJ officials deliberately endangered his life when they transferred him to the Michael Unit on February 9, 2000, where one of his known enemies was confined;
(b) The disciplinary hearing officer refused to consider his self defense theory — i.e., that he needed to possess a weapon (1) because his known enemy would be assigned to his cell, thus placing him in imminent danger, and (2) because prison officials had disregarded his plea for assistance;
(c) His placement in administrative segregation because he posed a threat to the safety of other inmates was arbitrary and a pretext to "cover up the plot to get petitioner seriously injured or killed."
Petitioner raises the following grounds regarding disciplinary Case No. 20010104801:
(a) His free speech rights were violated because he received a disciplinary violation for sending a letter to another inmate asking for an out of court settlement in lieu of a lawsuit;
(b) His due process rights were violated because his case was not investigated; and
(c) He was denied effective assistance of counsel because counsel substitute did not prevent the DHO from relying on the allegedly false investigation report and did not enter the statement of his witness Oscar as evidence.Findings and Conclusions: 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). The instant petition does not present a cognizable basis for habeas corpus relief.
Jurisdiction is proper in this Court as well as in the Eastern District of Texas. See Wadsworth v. Johnson, 235 F.3d 959, 962-63 (5th Cir. 2000).
Liberally construed, the petition alleges prison officials denied Petitioner due process protection during the disciplinary proceedings at issue. 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 (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. 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).
Petitioner's habeas corpus action is based inter alia on his claim that the forfeiture of 465 days of good-time credits, imposed as a result of the disciplinary convictions in this case, implicates the Due Process Clause because it has delayed his release under Texas's mandatory supervision law.
According to the parole laws in effect at the time of Petitioner's conviction, "[a] prisoner who is not on parole, except a person under sentence of death, shall be released to mandatory supervision by order of the Board when the calendar time served plus any accrued good conduct time equal the maximum term to which he was sentenced." Tex. Code Crim. Proc. 42.12 § 15(b) and (c) (Vernon 1977). However, a life sentence is not capable of calculation under the mandatory supervision statute.See Randall v. Cockrell, 2001 WL 1597829, No. 3:01cv530-X (N.D. Tex. Dec. 11, 2001); Elliot v. Johnson, 2001 WL 123984, 3:01cv1425-R (N.D. Tex. Jan. 16, 2001). The Texas Court of Criminal Appeals recently reached the same conclusion in Ex parte Franks, ___ S.W.3d ___, 2001 WL 1636423 (Tex.Crim.App. Dec. 19, 2001) (No. 74,123). It explained: "Under a literal reading of this law, it is mathematically impossible to determine a mandatory supervision release date on a life sentence because the calendar time served plus any accrued good conduct time will never add up to life." Id. at 2. Therefore, Petitioner is not eligible for mandatory supervised release on his life sentence.
Because Petitioner is not entitled to early release or mandatory supervision, the loss of good-time credits in his case does not affect the fact or duration of his sentence and, therefore, does not deprive him of a liberty interest.
Respondent contends that Petitioner's claim for restoration of good-time credits is not cognizable in this habeas corpus action because it does not affect the fact and duration of his sentence. Relying onOrellana v. Kyle, 65 F.3d 29, 31-33 (5th Cir. 1995), and Carson v. Johnson, 112 F.3d 818, 821 (5th Cir. 1997), she asserts the proper vehicle is a civil rights action pursuant to 42 U.S.C. § 1983.Orellana and Carson are distinguishable from the instant case. Neither the complaint in Orellana (which challenged parole review procedures) nor the habeas petition in Carson (which challenged administrative segregation confinement) sought speedier release from custody, thus affecting the fact and duration of the prisoner's sentence.
In this case, Petitioner requests inter alia the restoration of lost good-time credits. Thus, on its face his petition seeks speedier release — a claim clearly cognizable in a habeas action under 28 U.S.C. § 2254. See In re Cain, 137 F.3d 234, 236 (5th Cir. 1998) (relying on Preiser v. Rodriguez, 411 U.S. 475 (1973), to hold that a prisoner may seek redress for the loss of good-time credits following a prison disciplinary proceeding only through a habeas petition). The fact that the petition lacks merit because Petitioner is not entitled to mandatory supervised release on a life sentence is inapposite to whether the claim is cognizable in a habeas corpus action.
None of the other sanctions, which Petitioner received for the disciplinary actions in this case, affect the fact or duration of his sentence, thus depriving him of a liberty interest. Commissary and recreation restrictions do not implicate a protected liberty interest because they do not impose a significant or atypical hardship on the inmate in relation to the ordinary incidents of prison life. Malchi v. Thaler, 211 F.3d 953, 958 (5th Cir. 2000); Madison v. Parker, 104 F.3d 765, 768 (5th Cir. 1997). Similarly the change in Petitioner's custodial status, which affects his earning of good-time credits, does not deprive him of a protected liberty interest. As noted above, Petitioner is not entitled to mandatory supervision. Therefore, any change in his good-time earning status does not affect a protected liberty interest. Even if mandatory supervised release eligible, the Fifth Circuit has held that the effect of a change in a prisoner's good-time earning status on the timing of his release on mandatory supervision was too speculative to afford him a constitutionally cognizable "right" to a particular time-earning status. Malchi, 211 F.3d at 959.
Nor does Petitioner's long-term assignment to administrative segregation — now totaling almost twenty-two months — deprive him of a protected liberty interest. In Sandin v. Conner, 515 U.S. 472, 486 (1995), the Supreme Court concluded that "segregated confinement did not present the type of atypical, significant deprivation in which a state might conceivably create a liberty interest." On the basis of Sandin, the Fifth Circuit has found that "`administrative segregation. without more, simply does not constitute a deprivation of a constitutionally cognizable liberty interest.'" Pichardo v. Kinker, 73 F.3d 612, 613 (5th Cir. 1996) (quoting Luken v. Scott, 71 F.3d 192, 193 (1995)) (addressing claim that confinement in administrative segregation violated prisoner's due process rights). The Fifth Circuit has also rejected a state prisoner's claim that the additional restrictions imposed on those in administrative segregation violated his due process rights. Martin v. Scott, 156 F.3d 578, 580 (5th Cir. 1998) (per curiam). It stated "`absent extraordinary circumstances, administrative segregation as such, being an incident to the ordinary life of a prisoner, will never be a ground for constitutional claim because it simply does not constitute a deprivation of a constitutionally cognizable liberty interest.'" Id. at 580 (quotation omitted). Petitioner's contentions that (1) he is confined to his cell twenty-three hours per day, (2) he is not allowed to possess hygiene items such as a deodorant, lotion or hair conditioner, (3) he is denied the right to possess his personal property except for legal materials, and (4) he is denied access to general library material and educational, vocational and rehabilitative programs (see Petitioner's Memorandum of Law in support of petition at 11, and Supplemental Reply at 4), do not present extraordinary circumstances sufficient to create a protected liberty interest.
Petitioner concedes that TDCJ-ID reviews his assignment to administrative segregation every six months. A determination is then made as to whether his continued segregation is justified. See, e.g. Ruiz v. Estelle, 503 F. Supp. 1265, 1364 (S. D. Tex. 1980) (discussing periodic review of reasons for confining inmates in administrative segregation).
To the extent Petitioner relies on Ruiz v. Johnson, 37 F. Supp.2d 855, 913 (S.D. Tex. 1999), to assert that his long-term assignment to administrative segregation creates an atypical and significant hardship, his contention is unpersuasive. Ruiz held that "the extreme deprivations and repressive conditions of confinement in the TDCJ's administrative segregation units violated the prohibition against cruel and unusual punishment contained in the Eighth Amendment to the U.S. Constitution, as to the plaintiff class generally and to the subclass of mentally ill inmates housed in such confinement." Ruiz v. Johnson, 154 F. Supp.2d 975, 985 (S.D. Tex. 2001). Contrary to Petitioner's assertion, Ruiz did not address the due process claim at issue in this case.
Moreover, as a prisoner, Petitioner does not have a "protectable property or liberty interest in custodial classifications." Harper v. Showers, 174 F.3d 716, 719 (5th Cir. 1999); see also Mikeska v. Collins, 900 F.2d 833, 836 (5th Cir. 1990), withdrawn and superseded on reh'g but reinstated for cited proposition, 928 F.2d 126 (1991). Such classifications are generally within the broad discretion of prison officials and courts do not interfere except in extreme circumstances, none of which are present in Plaintiffs' complaint. Mikeska, 900 F.3d at 836.
Because none of the sanctions, which Petitioner received for the disciplinary convictions in this case, deprived him of a protected liberty interest, he was not entitled to due process protection in the course of the disciplinary proceedings. Therefore, the petition does not present a cognizable basis for habeas relief and should be denied.
Insofar as Petitioner contends that he received ineffective assistance of counsel during the disciplinary proceeding, this claim also fails to state a claim for habeas relief. A prison inmate does not have a federal constitutional right to either appointed or retained counsel at prison disciplinary hearings that are not part of a criminal prosecution. Baxter v. Palmigiano, 425 U.S. 308, 315 (1976); Enriguez v. Mitchell, 533 F.2d 275, 276 (5th Cir. 1976).
RECOMMENDATION:
For the foregoing reasons, it is recommended that the District Court deny the petition for a writ of habeas corpus.
A copy of this recommendation will be transmitted to Petitioner and counsel for Respondent