Opinion
2:00-CV-0249.
February 23, 2001.
REPORT AND RECOMMENDATION TO DISMISS PETITION FOR A WRIT OF HABEAS CORPUS
On July 24, 2000, petitioner RICHARD BURNS, #637122, filed with this Court a Petition for a Writ of Habeas Corpus by a Person in State Custody challenging the result of a disciplinary proceeding which petitioner has identified as Case No. 20000219322. For the reasons set forth below, it is the opinion of the undersigned United States Magistrate Judge that petitioner's federal application for habeas corpus relief should be DISMISSED.
I. PROCEDURAL HISTORY
On March 20, 2000, petitioner was charged with committing a prison regulation offense as follows:
On the date . . . listed above . . . [petitioner] did possess contraband, namely, one set of headphones, that are altered, have a TDCJ offender number different than said offender's, one Westclox clock that has been altered, one vitamin jar filled with glue, one 8 volt battery by Duracell, which are items that are not allowed or assigned to an offender, and not bought by the offender for his use from the commissary.
On March 24, 2000, after a hearing, petitioner was found guilty of the charged offense and was assessed punishment at a loss of recreation privileges for 45 days, a reprimand, and a reduction in time-earning class from L-2 to L-3. Petitioner did not lose any good-time credits.
Petitioner appealed the finding of guilty and the resultant punishment through the prison grievance procedure. On March 25, 2000, petitioner executed his Step 1 grievance, said grievance being denied, after review, on May 12, 2000. Petitioner executed his Step 2 grievance on May 24, 2000, said grievance being denied on June 8, 2000.
On July 20, 2000, petitioner executed the instant federal habeas petition, filing said petition with this Court on July 24, 2000. Respondent has not been ordered to answer petitioner's habeas application.
II. DISMISSAL PURSUANT TO RULE 12(b)(6)
The Due Process Clause of the United States Constitution does not protect every change in the conditions of confinement having a substantial adverse impact on the prisoner. Sandin v. Conner, 515 U.S. 472, 478 (1995). In certain circumstances, however, states may create liberty interest which are protected by the Due Process Clause. Madison v. Parker, 104 F.3d 765, 767 (5th Cir. 1997). These interests are generally limited to freedom from restraint which imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life, Sandin, 515 U.S. at 484, or state created regulations or statutes which affect the quantity of time rather than the quality of time served by a prisoner. Madison, 104 F.3d at 767. Consequently, a prisoner may seek to recover good time credits lost in a prison disciplinary proceeding by way of a writ of habeas corpus. Preiser v. Rodriguez, 411 U.S. 475 (1973).
In this case, petitioner did not suffer any loss of good time credits as a result of the above-referenced disciplinary action. Petitioner, thus, is not seeking to recover any lost good time credits. Instead, petitioner appears to allege the detriment he is suffering as a result of the disciplinary action is due to the change in his time-earning status which results in a different accrual rate of good time credits. The difference in his time-earning status, although resulting in the loss of opportunity to earn additional good time credits which might lead to an earlier parole eligibility date, which might then lead to his conditional release on parole, constitutes a collateral consequence which has been held to be too speculative to warrant federal court relief. Luken v. Scott, 71 F.3d 192 (5th Cir. 1995), cert. denied sub. nom, Luken v. Johnson, 517 U.S. 1196, 116 S.Ct. 1690, 134 L.Ed.2d 791 (1996) (the possibility that an inmate's time-earning class "would affect when he was ultimately released from prison 'is simply too attenuated to invoke the procedural guarantees of the Due Process Clause.'"). Petitioner has not, and cannot, show that a change in his time-earning class "would automatically shorten his sentence or lead to his immediate release." Carson v. Johnson, 112 F.3d 818, 821 (5th Cir. 1997).
To the extent, if any, petitioner is challenging the loss of recreation, commissary, or property privileges, a reprimand, an assessment of extra duty hours, or cell restriction, such claims do not present grounds for federal habeas corpus review. The Due Process Clause of the United States Constitution is not implicated by these changes in the conditions of petitioner's confinement. Madison, 104 F.3d 765, 768 (5th Cir. 1997).
Because petitioner did not lose any good time in the disciplinary proceeding he is challenging, petitioner has failed to show he is presently suffering any cognizable federal constitutional deprivation to warrant habeas corpus relief. Therefore, it is the opinion of the undersigned United States Magistrate Judge that petitioner has failed to state a claim upon which federal habeas relief may be granted. Accordingly, petitioner's habeas application should be, in all things, dismissed.
III. RECOMMENDATION
It is the RECOMMENDATION of the United States Magistrate Judge to the United States District Judge that the Petition for a Writ of Habeas Corpus by a Person in State Custody filed by petitioner RICHARD BURNS be, in all things, DISMISSED.
IV. INSTRUCTIONS FOR SERVICE and NOTIFICATION OF RIGHT TO OBJECT
The United States District Clerk is directed to send a file-marked copy of this Report and Recommendation to petitioner, utilizing the inmate correspondence card.
Any party who wishes to object to this Report and Recommendation must make such objections within fourteen (14) days after the filing of such Report. See 28 U.S.C. § 636(b); Rule 8(b)(3) of the Rules Governing Section 2254 Cases in the United States District Courts; Fed.R.Civ.P. 5(b), 6(e). Any such objections shall be in the form of a written pleading entitled "Objections to Report and Recommendation," and shall be filed with the United States District Clerk and served on all other parties. Objections shall specifically identify the portions of the findings, conclusions, or recommendation to which objection is made, and set out fully the basis for each objection. A party's failure to timely file written objections to the proposed findings, conclusions, and recommendation contained in the original Report and Recommendation shall bar him, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions set forth in this report and accepted by the district court. Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).
IT IS SO RECOMMENDED.