United States District Court, E.D. Texas, Texarkana Division
MEMORANDUM ORDER OVERRULING PETITIONER'S
OBJECTIONS AND ADOPTING THE MAGISTRATE JUDGE'S REPORT AND
W. SCHROEDER III UNITED STATES DISTRICT JUDGE
Brian Williams, a prisoner confined at the Telford Unit of
the Texas Department of Criminal Justice, Correctional
Institutions Division, brought this petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254.
Court ordered that this matter be referred to the Honorable
Caroline Craven, United States Magistrate Judge, for
consideration pursuant to applicable laws and orders of this
Court. The Magistrate Judge has submitted a Report and
Recommendation of United States Magistrate Judge recommending
the petition be denied.
Court has received and considered the Report and
Recommendation of United States Magistrate Judge, along with
the record, pleadings, and all available evidence. The
petitioner filed objections to the Report and Recommendation.
Court has conducted a de novo review of the
objections in relation to the pleadings and the applicable
law. See Fed. R. Civ. P. 72(b). After careful
consideration, the Court concludes the objections are without
petitioner alleges he was denied due process because: (1)
prison officials did not follow the special disciplinary
procedures established for offenders with psychiatric issues,
and (2) the disciplinary hearing officer failed to consider
allegedly exculpatory medical records. The petitioner
contends his counsel substitute provided ineffective
assistance by failing to ensure applicable regulations and
policies were followed during the disciplinary proceedings.
The petitioner also contends prison officials violated the
Americans with Disabilities Act (ADA) during the disciplinary
charged with rule violations are entitled to certain due
process rights when the disciplinary action results in a
sanction that will impose upon a liberty interest. Sandin
v. Conner, 515 U.S. 472, 483-84 (1995); Thompson v.
Cockrell, 263 F.3d 423, 425 (5th Cir. 2001). Generally,
the only sanction that imposes upon a liberty interest is the
loss of good time credits for an inmate whose release on
mandatory supervision will be delayed by the loss of the
credits. Malchi v. Thaler, 211 F.3d 953, 958 (5th
Cir. 2000); see also Teague v. Quarterman, 482 F.3d
769, 774 (5th Cir. 2007). In this case, the Magistrate Judge
correctly concluded that the petitioner was not entitled to
due process before the imposition of sanctions because he is
ineligible for release on mandatory supervision. Further, the
failure of prison officials to follow prison policies does
not rise to the level of a constitutional violation.
McFaul v. Valenzuela, 684 F.3d 564, 579 (5th Cir.
2012). As a result, the petitioner's due process claims
petitioner's claim that his counsel substitute provided
ineffective assistance lacks merit. A prisoner does not have
a constitutional right to counsel in a disciplinary hearing.
Wolff v. McDonnell, 418 U.S. 539, 570 (1974).
Because the petitioner does not have the right to be
appointed counsel or counsel substitute, he may not complain
about the adequacy of his counsel substitute's
petitioner's ADA claims are not cognizable in a habeas
proceeding because they do not impact the fact or duration of
the petitioner's confinement. Preiser v.
Rodriguez, 411 U.S. 475, 500 (1973) (petition for writ
of habeas corpus is the appropriate means for a prisoner to
challenge the fact or duration of his confinement);
Richardson v. Fleming, 651 F.2d 366, 372 (5th Cir.
1981) (a civil rights action is an appropriate means for
recovering damages resulting from illegal administrative
procedures or the conditions of confinement). If the
petitioner wishes to pursue the ADA claims, he may do so by
filing a civil action.
in this case, the petitioner is not entitled to the issuance
of a certificate of appealability. An appeal from a judgment
denying federal habeas corpus relief may not proceed unless a
judge issues a certificate of appealability. See 28
U.S.C. § 2253; Fed. R. App. P. 22(b). The standard for
granting a certificate of appealability, like that for
granting a certificate of probable cause to appeal under
prior law, 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); see also Barefoot v. Estelle, 463 U.S. 880,
893 (1982). In making that substantial showing, the
petitioner need not establish that he should 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; Avila v.
Quarterman, 560 F.3d 299, 304 (5th Cir. 2009). If the
petition was denied on procedural grounds, the petitioner
must show that jurists of reason would find it debatable: (1)
whether the petition raises a valid claim of the denial of a
constitutional right, and (2) whether the district court was
correct in its procedural ruling.
529 U.S. at 484; Elizalde, 362 F.3d at 328. Any
doubt regarding whether to grant a certificate of
appealability is 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. 2000).
petitioner has not shown that any of the issues raised by his
claims are subject to debate among jurists of reason. The
factual and legal questions advanced by the petitioner are
not novel and have been consistently resolved adversely to
his position. In addition, the questions presented are not
worthy of encouragement to proceed further. Petitioner has
failed to make a sufficient showing to merit the issuance of
a certificate of appealability.
petitioner's objections 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 ...