United States District Court, E.D. Texas, Beaumont Division
ORDER OVERRULING PETITIONER'S OBJECTIONS AND
ADOPTING THE MAGISTRATE JUDGE'S REPORT AND
Clark, United States District Judge
David Andrew Schmidt, a prisoner confined in the Texas
Department of Criminal Justice, Correctional Institutions
Division, brought this petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254. The petitioner challenged
the constitutionality of a disciplinary proceeding.
court ordered that this matter be referred to the Honorable
Zack Hawthorn, 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. The
Magistrate Judge recommends denying the petition.
court has received and considered the Report and
Recommendation of United States Magistrate Judge, along with
the record and the pleadings. The petitioner filed objections
to the Magistrate Judge's 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 of all the pleadings and the relevant case law,
the court concludes that the petitioner's objections lack
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 did
not forfeit good conduct credit. Thus, the disciplinary
conviction will not delay petitioner's release on
mandatory supervision. Petitioner contends that the
disciplinary conviction will affect his release on parole.
Because there is no constitutional expectation of release on
parole in Texas, a potential delay in parole does not support
a constitutional claim. Malchi, 211 F.3d at 957.
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. Slack, 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).
the petitioner has not shown that any of the issues raised by
his claims are subject to debate among jurists of reason, or
that a procedural ruling was incorrect. In addition, the
questions presented are not worthy of encouragement to
proceed further. Therefore, the petitioner has failed to make
a sufficient showing to merit the issuance of a certificate
the petitioner's objections (document no. 6) are
OVERRULED. The findings of fact and
conclusions of law of the Magistrate Judge are correct, and
the report of the Magistrate Judge (document no. 3) is
ADOPTED. A final judgment will be entered in
this case in accordance with the ...