Opinion
CIVIL ACTION NO. 9:13cv96
01-22-2014
DESMOND COLEMAN v. DIRECTOR, TDCJ-CID
ORDER OVERRULING OBJECTIONS AND ADOPTING
THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION
Petitioner Desmond Coleman, an inmate confined within the Texas Department of Criminal Justice, Correctional Institutions Division, proceeding pro se, filed the above-styled petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges two prison disciplinary convictions.
The court previously referred this matter to the Honorable Zack Hawthorn, United States Magistrate Judge, at Beaumont, Texas, for consideration pursuant to 28 U.S.C. § 636 and the applicable orders of this Court. The Magistrate Judge has submitted a Report and Recommendation of United States Magistrate Judge concerning this matter. The Magistrate Judge recommends the petition be denied.
The court has received and considered the Report and Recommendation of United States Magistrate Judge, along with the record and pleadings. Petitioner filed objections to the Report and Recommendation.
The court has conducted a de novo review of the objections. After careful consideration, the court is of the opinion that the objections are without merit. Because the punishment imposed as a result of the disciplinary convictions will not have a direct effect on the fact or duration of petitioner's confinement, he may not challenge the disciplinary convictions in a petition for writ of habeas corpus. Petitioner contends his disciplinary convictions will extend the time he spends in prison because they will cause him to be automatically set off from consideration for release on parole. However, even if it could be concluded that this fact could make petitioner's challenge to the disciplinary convictions cognizable in a habeas proceeding, he
In this case, the petitioner has not shown that the issue of whether his challenge to his disciplinary convictions may be pursued in a writ of habeas corpus is subject to debate among jurists of reason. The factual and legal issues raised by petitioner have been consistently resolved adversely to his position and the questions presented are not worthy of encouragement to proceed further. As a result, a certificate of appealability shall not issue in this matter.
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Ron Clark, United States District Judge
1 The court notes that as the punishment imposed as a result of the disciplinary convictions included a fine, petitioner could conceivably challenge the disciplinary convictions by filing a civil rights action. The denial of this petition is without prejudice to any civil rights action petitioner may choose to file. This note is not intended to encourage the filing of a suit or the payment of a filing fee, or as an indication that such a suit might succeed.