Opinion
3:01-CV-0085-P.
February 13, 2001
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 pursuant to 28 U.S.C. § 2254.
Parties: Petitioner is an inmate currently confined at the Estelle Unit of the Texas Department of Criminal Justice — Institutional Division (TDCJ-ID) in Huntsville, Texas. Respondent is the Director of the TDCJ-ID. The court has not issued process in this case.
Statement of Case: In 1995, Petitioner was convicted for aggravated robbery in the 203rd Judicial District Court, Dallas County, Texas. Punishment was assessed at twelve years in the TDCJ-ID. (Petition IT 1-4).
In this action, Petitioner challenges disciplinary sanctions that he received on May 5, 2000, for participating in a riot at the Smith Unit of the TDCJ-ID. (Petition ¶¶ 17-18). He received the following punishment as a result of the disciplinary action taken: he lost forty-five days of recreation and commissary privileges; his classification was reduced from Class S3 to Class L3; he lost 2698 days of good time credits; he was fined $224.50; and his custody level was increased from minimum to medium custody. (Petition ¶ 18). Prior to filing this action, Petitioner exhausted his administrative remedies. (Petition ¶ 19).
Findings and Conclusions: Rule 4, of the Rules Governing Section 2254 Cases in the United States District Courts, provides that "[i]f it plainly appears from the face of the petition and any exhibit annexed to it that the petitioner is not entitled to relief in the district court, the judge shall make an order for its summary dismissal and cause the petitioner to be notified." 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), cert. denied, 516 U.S. 1059 (1996). The instant petition does not present any cognizable basis for habeas corpus relief.
The petition contends that prison officials denied Petitioner due process protection during the disciplinary proceeding. Specifically the petition asserts that prison officials failed to disclose evidence favorable to Petitioner, that Petitioner's guilty plea was involuntary, that "counsel" did not ensure the presence of Petitioner's witnesses at the disciplinary hearing or the availability of witness statements, and that prison officials failed to present any evidence that Petitioner was involved in a riot. (Petition ¶ 20).
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, 115 S.Ct. 2293, 132 L.Ed.2d 418 (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, 115 S.Ct. at 2300. 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).
Liberally construed Petitioner's habeas corpus action is based on his claim that the forfeiture of 2698 days of good-time credits, imposed as a result of the disciplinary conviction in this case, implicates the Due Process Clause because it has delayed his release under Texas's mandatory supervision law. (Petition at 10).
The Fifth Circuit Court of Appeals recently held that "there is a constitutional expectancy of early release created by Texas's mandatory supervision scheme in place prior to September 1, 1996[,] for earned good time credits." Malchi, 211 F.3d at 958. Petitioner was convicted on March 24, 1995. Thus, he is covered by the mandatory supervision statute in effect prior to September 1, 1996. That statute, however, excepts from mandatory supervision any inmate who was convicted of aggravated robbery, such as the Petitioner in this case. See Tex. Code Crim. P. Ann. art. 42.18 § 8(c) (West 1995). The loss of good-time credits in Petitioner's case does not affect the fact or duration of his sentence and, therefore, does not implicate due process concerns.
Texas revised statute also excepts from mandatory supervision individuals convicted of aggravated robbery. See Tex. Govt Code § 508.149(a)(12) (West 2000).
Insofar as Petitioner contends that the loss of good-time credits affects his release on parole, his claim fares no better. In Madison, the Fifth Circuit held that because it is entirely speculative whether a prisoner will be released on parole, there is no constitutional expectancy to parole in Texas. 104 F.3d at 768; see also Malchi, 211 F.3d at 957.
Nor do any of the other sanctions, which Petitioner received for the disciplinary conviction, affect the fact or duration of his sentence, thus depriving him of a liberty interest. It is now well established that commissary and recreation restrictions do not implicate a protected liberty interest. Malchi, 211 F.3d at 958. The Fifth Circuit has held that commissary and recreation restrictions do not impose a significant or atypical hardship on the inmate in relation to the ordinary incidents of prison life. Madison, 104 F.3d at 768. 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. In Malchi, the Fifth Circuit held that the effect of a change in a prisoner's good-time earning status on the timing of his release on parole was too speculative to afford him a constitutionally cognizable "right" to a particular time-earning status. 211 F.3d at 959.
Because none of the sanctions, which Petitioner received for the disciplinary conviction, deprived him of a protected liberty interest, he was not entitled to due process protection in the course of the disciplinary proceeding. Petitioner's habeas corpus petition does not present a cognizable basis for habeas relief and should be summarily dismissed.
Insofar as Petitioner contends that he received ineffective assistance of counsel during the disciplinary proceeding and that his guilty plea was involuntary, these claims also fail 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, 96 S.Ct. 1551, 1556-67, 47 L.Ed.2d 810 (1976); Enriquez v. Mitchell, 533 F.2d 275, 276 (5th Cir. 1976). Moreover, Petitioner's own allegations do not support his contention that he pled guilty during the disciplinary proceeding. (See also Disciplinary report and hearing record attached to the federal petition).
RECOMMENDATION:
For the foregoing reasons, it is recommended that the petition for a writ of habeas corpus be summarily dismissed pursuant to Rule 4 of the Rules Governing Section 2254 Cases.
A copy of this recommendation will be transmitted to Petitioner.
NOTICE
In the event that you wish to object to this recommendation, you are hereby notified that you must file your written objections within ten days after being served with a copy of this recommendation. Pursuant to Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir. 1996) (en banc), a party's failure to file written objections to these proposed findings of fact and conclusions of law within such ten-day period may bar a de novo determination by the district judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds of plain error, from attacking on appeal the unobjected to proposed findings of fact and conclusions of law accepted by the district court.