Guerrero v. Dir., TDCJ-CID

Full title: RUBEN GUERRERO v. DIRECTOR, TDCJ-CID

Court: UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS LUFKIN DIVISION

Date published: May 3, 2014

CIVIL ACTION NO. 9:13-CV-281 (E.D. Tex. May. 3, 2014)

Opinion

CIVIL ACTION NO. 9:13-CV-281

05-03-2014

RUBEN GUERRERO v. DIRECTOR, TDCJ-CID

Ron Clark

MEMORANDUM ORDER OVERRULING OBJECTIONS AND ADOPTING

THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION

Petitioner, Ruben Guerrero, an inmate confined at the Hughes Unit of the Texas Department of Criminal Justice, Correctional Institutions Division, proceeding pro se and in forma pauperis, filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.

The court referred this matter to the Honorable Keith Giblin, United States Magistrate Judge, at Beaumont, Texas, for consideration pursuant to applicable laws and orders of this court. The Magistrate Judge recommends this petition be denied.

The court has received and considered the Report and Recommendation of United States Magistrate Judge filed pursuant to such order, along with the record, and pleadings. Petitioner filed objections to the Report and Recommendation of United States Magistrate Judge. This requires a de novo review of the objections in relation to the pleadings and applicable law. See FED. R. CIV. P. 72(b).

After careful consideration, the court finds petitioner's objections lacking in merit. As the Magistrate Judge correctly concluded, petitioner's punishment consisted of nothing more than the loss of 45 days of recreation and commissary privileges and a classification demotion. Petitioner did not lose any previously earned good conduct time credits and, as such, the punishment imposed did not implicate a protected liberty interest. See Henson v. Bureau of Prisons, 213 F.3d 897, 898 (5^th Cir. 2000) (noting that when a prisoner has a liberty interest in good time credit, the revocation of such credit must comply with minimal procedural requirements).

ORDER

Accordingly, the objections of petitioner are OVERRULED. The findings of fact and conclusions of law of the Magistrate Judge are correct, and the report of the Magistrate Judge is ADOPTED. A final judgment will be entered in this case in accordance with the Magistrate Judge's recommendations.

In addition, the court is of the opinion petitioner is not entitled to a certificate of appealability. An appeal from a judgment denying post-conviction collateral relief may not proceed unless a judge issues a certificate of appealability. See 28 U.S.C. § 2253. The standard for a certificate of appealability requires the petitioner to make a substantial showing of the denial of a federal constitutional right. See Slack v. McDaniel, 529 U.S. 473, 483-84 (2000); Elizalde v. Dretke, 362 F.3d 323, 328 (5th Cir. 2004). To make a substantial showing, the petitioner need not establish that he would prevail on the merits. Rather, he must demonstrate that the issues are subject to debate among jurists of reason, that a court could resolve the issues in a different manner, or that the questions presented are worthy of encouragement to proceed further. See Slack, 529 U.S. at 483-84. Any doubt regarding whether to grant a certificate of appealability should be resolved in favor of the petitioner, and the severity of the penalty may be considered in making this determination. See Miller v. Johnson, 200 F.3d 274, 280-81 (5th Cir.), cert. denied, 531 U.S. 849 (2000).

In this case, the petitioner has not shown that the issues of concern are subject to debate among jurists of reason or 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