Opinion
No. 3:02-CV-1864-D.
March 9, 2005.
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 in implementation thereof, subject cause has previously been referred to the United States Magistrate Judge. The findings, conclusions, and recommendation of the Magistrate Judge are as follows:
I. BACKGROUND
A. Parties : Petitioner, a state inmate currently incarcerated in the Texas Department of Criminal Justice — Correctional Institutions Division (TDCJ-CID), filed this action as a petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Douglas Dretke, Director of TDCJ-CID, is the respondent.
B. Procedural History : In 1992, petitioner was convicted of theft in Dallas County, Texas, and was sentenced to twenty-six years imprisonment. ( See Answer to Question 1 of Magistrate Judge's Questionnaire (MJQ).) On March 28, 2002, the TDCJ classification committee reclassified petitioner due to an alleged escape in his prison records. ( See Pet. Writ of Habeas Corpus (Pet.) at 7.) On June 6, 2002, petitioner filed a state application for writ of habeas corpus to challenge the reclassification. See S.H. Tr. at 2. On August 14, 2002, the Texas Court of Criminal Appeals denied that application without written order. See Ex parte Cannon, No. 5,224-09, slip op. at 1 (Tex.Crim.App. Aug. 14, 2002). Petitioner has also appealed his reclassification through the prison grievance procedure. ( See Answer to Question 3 of MJQ.)
"S.H. Tr." denotes the state habeas records attached to Ex parte Cannon, No. 5,224-09, slip op. (Tex.Crim.App. Aug. 14, 2002).
In August 2002, petitioner filed the instant action. (Pet. at 1, 9.) He initially purports to challenge the validity of a conviction for an escape. ( Id. at 2.) He also claims that the classification committee reclassified him "based upon false, erroneous, or inaccurate information" which reflects an escape in his prison record. ( See Mem. at 3, attached to Pet.) He asserts that such reclassification violates his rights to due process and equal protection. ( Id.) He further asserts that he has been denied his rights to education and training programs, housing, and prison jobs because of the escape erroneously listed in his prison records. ( See Pet. at 7; Answer to Question 2 of MJQ.) He also asserts that the reclassification will affect his parole reviews, and thus the length of the time that he will serve. ( See Answer to Question 2.) He seeks to have the erroneous information removed from his prison files. (Mem. at 5.)
On September 24, 2002, the Court granted petitioner permission to proceed in forma pauperis in this habeas action. On May 28, 2003, respondent filed an answer in which he states that petitioner has failed to allege a cognizable federal habeas claim. ( See Answer at 1, 4.) On June 13, 2003, the Court received petitioner's response to that answer. ( See Resp. at 1.) C. Exhaustion : Respondent concedes that petitioner has sufficiently exhausted his state remedies with respect to his challenge to the reclassification hearing of March 28, 2002. (Answer at 3.)
II. CHALLENGE TO NON-EXISTENT CONVICTION
Petitioner initially seeks to challenge an alleged conviction for escape. ( See Pet. at 2.) Respondent concedes that none of petitioner's state court records reflect that he has been charged with or convicted of escape. ( See Answer at 2 n. 1.) Respondent contends that petitioner is thus not challenging any conviction that has placed him in custody. ( Id.)
Although petitioner asserts that he has never been charged with or convicted of any escape, he provides a prison record which shows an "escape" based upon a "fail[ure] to ret[urn] from furlough" while in Dallas. ( See Ex. B to Resp.) The prison record codes this failure as "EX", which petitioner construes as a code for an escape. The Court assumes for purposes of this motion only that petitioner's construction of this code is correct.
Because petitioner has neither been charged with nor convicted of any escape, he may not directly challenge the validity of such a conviction or charge. A challenge to a non-existent escape fails to state a basis for habeas relief. Section 2254(a) provides that the "district court shall entertain an application for writ of habeas corpus . . . only on the ground that he is in custody in violation of the Constitution or laws or treaties of the United States."
Although petitioner may not directly challenge a non-existent escape charge or conviction in this action pursuant to § 2254, he also alleges that his reclassification based upon such an escape listed in his prison records violates his rights to due process and equal protection. The Court thus addresses his reclassification claims.
III. DUE PROCESS
Petitioner claims that his reclassification, based upon an escape erroneously listed in his prison records, violates his right to due process. He asserts that the reclassification denies him rights to rehabilitative programs, housing, and prison jobs without due process. ( See Pet. at 7; Answer to Question 2 of MJQ.) He further asserts that the reclassification will affect his parole reviews in violation of his right to due process. ( See Answer to Question 2.)"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.'" Malchi v. Thaler, 211 F.3d 953, 957 (5th Cir. 2000) (quoting Orellana v. Kyle, 65 F.3d 29, 31 (5th Cir. 1995)). Although lawful incarceration results in the loss of many rights and privileges that most citizens enjoy, states may create liberty interests that are protected by the due process clause. See Sandin v. Conner, 515 U.S. 472, 484-85 (1995); Madison v. Parker, 104 F.3d 765, 767 (5th Cir. 1997). These liberty interests are generally limited to matters which affect the amount of time served by a prisoner, such as lost good-time credits and eligibility for mandatory supervision. See Malchi, 211 F.3d at 957-58; Madison, 104 F.3d at 767.
Not "every state action carrying adverse consequences for prison inmates automatically activates a due process right." Moody v. Daggett, 429 U.S. 78, 88 (1976). The protections accorded by the due process clause are not required for "prisoner classification and eligibility for rehabilitative programs . . . and [a] petitioner has no legitimate statutory or constitutional entitlement sufficient to invoke due process." Id. "Inmates have no protectable property or liberty interest in custodial classifications." Harper v. Showers, 174 F.3d 716, 719 (5th Cir. 1999). Furthermore, a " mere opportunity to earn good-time credits" does not "constitute a constitutionally cognizable liberty interest sufficient to trigger the protection of the Due Process Clause." See Luken v. Scott, 71 F.3d 192, 193 (5th Cir. 1995). A reduction in custodial classification is not an atypical, significant deprivation in which a state might create a liberty interest.
In addition, "the mere possibility of parole is not a protected liberty interest." Makris v. United States Bureau of Prisons, 606 F.2d 575, 576 (5th Cir. 1979). "There is no constitutional or inherent right of a convicted person to be conditionally released before the expiration of a valid sentence." Greenholtz v. Inmates of the Neb. Penal Correctional Complex, 442 U.S. 1, 7 (1979). It is entirely speculative, moreover, whether an inmate will actually obtain parole, inasmuch as there is no right to be released on parole. See Allison v. Kyle, 66 F.3d 71, 74 (5th Cir. 1995); Creel v. Keene, 928 F.2d 707, 712 (5th Cir. 1991). State prisoners in Texas simply "have no protected liberty interest in parole." Johnson v. Rodriguez, 110 F.3d 299, 308 (5th Cir. 1997).
In this case, petitioner complains about a reclassification that occurred because of an escape listed in his prison records allegedly in error. He asserts that the reclassification has deprived him of various rights while incarcerated and will affect his parole reviews. He does not allege that he has lost previously accrued good-time credits as a result of his reclassification or that he has been denied release on mandatory supervision due to the alleged misinformation in his prison file.
Because petitioner has alleged no loss of good-time credits or denial of eligibility for release on mandatory supervision, he has stated no due process violation cognizable under 28 U.S.C. § 2254. See Malchi, 211 F.3d at 957-58. The due process clause "does not protect every change in the conditions of confinement having a substantial adverse impact on the prisoner." See Sandin, 515 U.S. at 478. Furthermore, any slowed accrual of good-time credits due to reclassification states no cognizable due process violation because inmates lack any "protectable property or liberty interest in custodial classifications." See Harper, 174 F.3d at 719; accord Luken, 71 F.3d at 193. Additionally, the speculative, possible effect that the alleged erroneous information may have on a future parole decision presents no basis for habeas relief because petitioner has no liberty interest in parole. In short, petitioner has established no liberty interest sufficient to justify relief under the due process clause.
Such speculation also does not entitle one to habeas relief, because speculation of future deprivations does not satisfy the requirement that petitioner allege that he has been deprived of some right secured to him by the United States Constitution or the laws of the United States.
Petitioner cites Greenholtz v. Inmates of Nebraska Penal Correctional Complex, 442 U.S. 1 (1979); Cook v. Texas Department of Criminal Justice Transitional Planning Department, 37 F.3d 166 (5th Cir. 1994); and Monroe v. Thigpen, 932 F.2d 1437 (11th Cir. 1991), as support for finding a due process violation. ( See Mem. at 4; Resp. at 3.) These cases, however, do not support finding a due process violation from the reclassification on March 28, 2002, or potential denials of parole based upon such reclassification or the alleged erroneous information in petitioner's prison file. The first case, Greenholtz, began with the proposition that "[t]here is no constitutional or inherent right" to be released on parole. 442 U.S. at 7. After recognizing that Nebraska had created a legitimate expectation of parole thus invoking due process protections, the Supreme Court considered what process is due during parole determinations. Id. at 7-16. Unlike the State prisoners in Nebraska in Greenholtz, State prisoners in Texas "have no protected liberty interest in parole." See Johnson v. Rodriguez, 110 F.3d 299, 308 (5th Cir. 1997). Greenholtz does not support petitioner's position. Cook dealt with whether a parole board may "take voided prior convictions into consideration when making eligibility determinations." See 37 F.3d at 167. That issue is not present in the instant case. Furthermore, Cook "stands only for the unremarkable rule that when a conviction has been thus judicially nullified a prisoner may obtain an order enjoining use of the voided conviction in a parole hearing, and might even be seen essentially as a federal court enforcing its own prior order." Johnson, 110 F.3d at 308 n. 12. Unless a court has "judicially nullified" a prior conviction, "there is nothing delimiting [a Parole] Board's consideration of prior offenses, adjudicated or unadjudicated." Id. Cook also does not support petitioner's position.
With regard to the third case cited by petitioner, the Fifth Circuit has recognized that Monroe has been "effectively overruled" by later precedent. See Johnson, 110 F.3d at 309 n. 13. As succinctly stated in Johnson, "[w]hatever the viability of [ Monroe and other similar] anomalous cases today, our precedent is definite and precise on this point: in the absence of a cognizable liberty interest, a state prisoner cannot challenge parole procedures under the Due Process Clause." Id. Under Fifth Circuit precedent, "allegations that [a Parole] Board considers unreliable or even false information in making parole determinations, without more, simply do not assert a federal constitutional violation." Id. at 308. Monroe is inconsistent with Fifth Circuit precedent, and provides no persuasive authority for petitioner's position.
For all of these reasons, petitioner has established no liberty interest sufficient to justify relief under the due process clause. In the absence of a protected liberty interest, petitioner's due process claims necessarily fail.
IV. EQUAL PROTECTION
Petitioner further asserts that his rights to equal protection were violated by his reclassification. ( See Mem. at 3.)The Equal Protection Clause of the Fourteenth Amendment commands that no State shall "deny to any person within its jurisdiction the equal protection of the laws," which is essentially a direction that all persons similarly situated should be treated alike. See Plyler v. Doe, 457 U.S. 202, 216 (1982); Piotrowski v. City of Houston, 237 F.3d 567, 578 n. 15 (5th Cir. 2001) (holding that "[t]he equal protection clause requires that all persons similarly situated be treated alike"). "The Fourteenth Amendment's promise that no person shall be denied the equal protection of the laws must coexist with the practical necessity that most legislation classifies for one purpose or another, with resulting disadvantage to various groups or persons." Romer v. Evans, 517 U.S. 620, 631 (1996). Thus, "a party who wishes to make out an Equal Protection claim must prove "the existence of purposeful discrimination" motivating the state action which caused the complained — of injury." Johnson v. Rodriguez, 110 F.3d 299, 306 (5th Cir. 1997).
Petitioner has not shown that his reclassification was due to purposeful discrimination or any impermissible motive. He has alleged nothing to indicate that he has been treated differently from those situated similarly — the crux of an equal protection claim. See City of Cleburne v. Cleburne Living Ctr., 473 U.S. 432, 439 (1985). Consequently, petitioner has stated no viable equal protection violation. He is thus entitled to no habeas relief on this claim.
V. EVIDENTIARY HEARING
Upon review of the pleadings filed herein, an evidentiary hearing appears unnecessary.