Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

Camp v. Davis

United States District Court, N.D. Texas, Amarillo Division

March 3, 2017

KRISS RAY CAMP, Petitioner,
v.
LORIE DAVIS, Director, Texas Department of Criminal Justice, Correctional Institutions Division, Respondent.

          SUPPLEMENTAL REPORT AND RECOMMENDATION TO DENY PETITION FOR A WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY

          CLINTON E. AVERITTE UNITED STATES MAGISTRATE JUDGE

         On July 19, 2011, petitioner was convicted in Potter County, Texas of the felony offense of assault causing bodily injury and assessed a 25-year sentence of confinement in the Texas Department of Criminal Justice, Correctional Institutions Division [TDC J].[1] On May 7, 2013, petitioner became eligible for release to parole. There is no indication in the record that petitioner was granted release to parole at that time or has been granted release at any subsequent time.

         In June or July 2015, petitioner was charged with violating a TDCJ disciplinary rule by "fighting without a weapon." On July 10, 2015, after a hearing, petitioner was found guilty of the charged offense. Punishment was assessed at 30 days loss of recreation privileges, 30 days restriction of commissary privileges, and 30 days telephone privileges restriction (OTS). Petitioner appealed the guilty finding through the TDCJ grievance procedure with relief being denied at Step 1 on July 29, 2015, and at Step 2 on August 10, 2015.

         On July 29, 2016, petitioner filed the instant federal petition for a writ of habeas corpus requesting the Court (1) overturn the prison disciplinary case and expunge the case from his record; (2) issue an injunction requiring TDCJ to conduct prison disciplinary proceedings "fair & proper"; and (3) issue a reprimand to TDCJ officials for necessitating the Court's involvement when a violation of petitioner's constitutional rights was clear on the face of the record. In his habeas application, petitioner acknowledged he did not lose any previously earned good-time days as a result of the disciplinary proceeding. See Question 18.

         On July 25, 2016, the undersigned entered a Report and Recommendation recommending federal habeas corpus relief be denied because petitioner did not receive a punishment sanction that included forfeiture of previously accrued good time credits as a result of the disciplinary proceeding. On August 1, 2016, petitioner filed objections to the Report and Recommendation asserting, inter alia, that although he did not lose previously accrued good time credits, the quantity of time he has served in confinement on his sentence was otherwise extended by constitutional violations committed during, and as a result of, the disciplinary proceeding. Petitioner, however, did not cite controlling authority supporting his claims that he had a cognizable liberty interest in his consideration for parole or demonstrating Malchi v. Thaler, 122 F.3d 953 (5th Cir. 2000) did not mandate a denial of habeas relief in this case. This lack of appropriate citation necessitated independent research by the Court and the entry of this Supplemental Report and Recommendation.[2]

         According to the TDCJ website, petitioner, on December 2, 2016, was again denied release to parole. The denial, however, was not based on petitioner's unsatisfactory institutional adjustment, but on his criminal history record, the nature of his holding offense, and his prior unsuccessful periods of parole that resulted in incarceration. Petitioner's next parole review is set for November 2017.

         NO COGNIZABLE FEDERAL CONSTITUTIONAL DEPRIVATION

         "[W]hen a state prisoner is challenging the very fact or duration of his physical imprisonment, and the relief he seeks is a determination that he is entitled to immediate release or a speedier release from that imprisonment, his sole federal remedy is a writ of habeas corpus." Preiser v. Rodriguez, 411 U.S. 475, 500, 93 S.Ct. 1827, 36 L.Ed.2d 439 (1973); Cook v. Tex. Dep't of Criminal Justice Transitional Planning Dep't, 37F.3d 166, 168(5th. 1994). To obtain federal habeas corpus relief, a prisoner must show there was a constitutional violation that harmed him. Malchi, 211 F.3d at 958.

         A prisoner may seek to recover good time credits lost in a state prison disciplinary proceeding by way of a writ of habeas corpus. However, in order to raise such a challenge in a federal petition for a writ of habeas corpus, a petitioner must not only have received a punishment sanction that included forfeiture of previously accrued good time credits, he must also be eligible for release on mandatory supervision. See Id. Although it appears petitioner is eligible for mandatory supervised release, he acknowledges he did not suffer any loss of good time credits from the challenged prison disciplinary action and, as a result, did not seek to recover any lost good time credits. While petitioner admits he did not lose good time, by his objections he appears to assert other constitutional violations occurred as a result of the disciplinary proceeding which affect the duration of his physical imprisonment, and overturning the disciplinary ruling would entitle him to a speedier release from that imprisonment. Specifically, petitioner appears to assert he was denied constitutional due process to which he was entitled as a result of the prison disciplinary proceeding and was set off for parole consideration for a year.

         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. Meachum v. Fano, 427 U.S. 215, 224, 96 S.Ct. 2532, 49 L.Ed.2d 451 (1976). Rather, a liberty interest must first exist to invoke the protections of the Due Process Clause. The Due Process Clause itself does not create the necessary liberty interest. However, once a protected liberty interest is determined to be present, there must be certain procedural safeguards of that liberty interest to satisfy due process. Sandin v. Conner, 515 U.S. 472, 478, 115 S.Ct. 2293, 132 L.Ed.2d 418 (1995). States may, in certain circumstances, create liberty interests which are protected by the Due Process Clause. Madison v. Parker, 104 F.3d 765, 767 (5th Cir. 1997). Liberty interests may be derived from state created statutes or regulations which create legitimate expectations and affect the quantity of time rather than the quality of time served by a prisoner. Id. A liberty interest which does not affect the duration of the sentence to be served is 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.

         In his objections, petitioner acknowledges he must first show the existence of a liberty interest before he can invoke the protection of the United States Constitution's Due Process Clause. Petitioner appears to assert he had a liberty interest in a set or defined time period between parole reviews, that he did not receive due process in protection of this liberty interest, and that this constitutional violation affected the quantity of time he has served or is being required to serve in confinement. Presumably petitioner was reviewed for parole prior to May 7, 2013, when he became eligible for parole, and again annually on or before May 2014 and 2015. Presumably petitioner's 2015 parole review was conducted prior to the date of his prison disciplinary proceeding on July 10, 2015. Petitioner contends a protected liberty interest was violated by the disciplinary ruling in that he was given "a one year automatic set off' for his next parole review. Petitioner's argument is without merit.

         "[A]dministrative or disciplinary decisions made by prison authorities might somehow affect the timing of a prisoner's release" but such effect does not "confer a constitutionally protected liberty interest upon a prisoner such that the prison authorities must comply with the Constitutional requirements of due process." Luken v. Scott, 71 F.3d 192, 193 (5th Cir. 1995), cert, denied sub. nom, Luken v. Johnson, 517 U.S. 1196, 116 S.Ct. 1690, 134 L.Ed.2d 791 (1996). Speculative collateral consequences of prison administrative decisions do not create constitutionally protected liberty interests. Id. [3] Petitioner does not identify or define what period of set off contends he was entitled, nor does he set out any specific dates or explain how he has been injured, i.e., how the duration of his physical imprisonment was lengthened or otherwise affected. Not only has petitioner failed to demonstrate the existence of a liberty interest necessary to invoke the protections of the due process clause, or the existence of any constitutional violation, petitioner has failed to show any requisite harm for habeas corpus relief. Because it is entirely speculative whether a prisoner will be released on parole, "there is no constitutional expectancy of parole in Texas." Madison, 104 F.3d at 768. Any delay in petitioner's consideration for parole as a result of the disciplinary proceeding simply cannot support a constitutional claim.

         Petitioner also appears to allege other detriments he contends he suffered as a result of the disciplinary action implicated a liberty interest giving rise to protection by the Due Process Clause. Treating petitioner's contention as an allegation that the nature of the deprivations imposed atypical and significant hardships on petitioner in relation to the ordinary incidents of prison life, the claims fails.[4]Petitioner complains that as a result of the disciplinary proceeding, he was forced to perform hard physical labor work in the fields on his hands and knees for long hours, in harsh conditions, despite his advanced age. Petitioner also contends that as a result of the disciplinary proceeding, he was disqualified from getting other prison jobs. First, petitioner has not demonstrated these conditions of confinement were sanctions assessed or taken against him as a direct result of the disciplinary violation and proceeding. Second, even if such measures were taken as a penalty for the disciplinary charge, they are not considered "the type of atypical, significant deprivation" that would be actionable. If not atypical, then any such measures would merely be a change in the conditions of petitioner's confinement, which does not implicate due process concerns. Cf. Id. A federal habeas action is only available to challenge the fact or duration of confinement, not the conditions of confinement. See Preiser, 411 U.S.at 493, 93 S.Ct. 1827. Petitioner's claims of forced manual labor and disqualification from other prison jobs as a result of the disciplinary proceeding do not implicate due process concerns or other constitutional violations so as to warrant habeas corpus relief.[5]

         Petitioner also contends his claim that TDCJ violated its internal policy by allowing the charging officer to act as the investigating officer amounted to an alleged violation of a right secured by the United States Constitution or the laws of the United States. Any violation of an internal prison policy, if it did in fact occur, did not implicate any fundamental right guaranteed by the United States Constitution. See Myers v. Klevenhagen,97 F.3d 91, 94 (5th Cir. 1996) ("Our case law is clear, however, that a prison official's failure to follow the prison's own policies, procedures or regulations does not ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.