United States District Court, S.D. Texas, Galveston Division
MEMORANDUM OPINION AND ORDER
C. HANKS JR. UNITED STATES DISTRICT JUDGE
petitioner, Laud Richard Nelson (TDCJ #00813706), is a state
inmate incarcerated in the Texas Department of Criminal
Justice - Correctional Institutions Division
("TDCJ"). Nelson has filed a petition for a writ of
habeas corpus under 28 U.S.C. § 2254 to challenge the
result of a prison disciplinary proceeding (Dkt. 1 at p. 2).
After reviewing all of the pleadings and the applicable law
under Rule 4 of the Rules Governing Section 2254 Cases in the
United States District Courts, the Court concludes that this
case must be DISMISSED for the reasons set
to publicly available records and his petition, Nelson is
serving a 55-year prison term for aggravated assault (Dkt. 1
at p. 2). In this habeas proceeding, Nelson challenges not
his underlying conviction but the result of a prison
disciplinary proceeding lodged against him (Dkt. 1 at pp. 2,
5). In his habeas petition, Nelson explains that he was
charged in disciplinary case #20160222932 with possession of
synthetic marijuana; he was found guilty of the charge on
April 7, 2016 (Dkt. 1 at pp. 5-6). As punishment, Nelson was
placed on recreation and commissary restriction for 45 days;
had his custody classification reduced (a reduction that will
include a year spent in close custody); and lost 30 days of
good-time credit (Dkt. 1 at p. 5). He is not eligible for
release on mandatory supervision (Dkt. 1 at p. 5).
See Tex. Gov't Code § 508.149(a)(7). For
the reasons set forth below, the Court holds that Nelson
fails to state an actionable claim under the standard of
review that governs disciplinary proceedings in the prison
PRISON DISCIPLINARY PROCEEDINGS
seeks a federal writ of habeas corpus to challenge a prison
disciplinary conviction. The federal writ of habeas corpus is
an extraordinary remedy which shall not extend to any
prisoner unless he is "in custody in violation of the
Constitution or laws or treaties of the United States."
28 U.S.C. §§ 2241(c)(3) & 2254(a); Brecht
v. Abrahamson, 507 U.S. 619, 633-34 (1993) (explaining
that "the writ of habeas corpus has historically been
regarded as an extraordinary remedy, a bulwark against
convictions that violate fundamental fairness"). Thus, a
habeas corpus petitioner must establish a constitutional
violation in order to prevail. Nelson's claims, on their
face, fail to make the requisite showing.
inmate's rights in the prison disciplinary setting are
governed by the Due Process Clause of the Fourteenth
Amendment to the United States Constitution. Wolff v.
McDonnell, 418 U.S. 539, 557 (1974). Prisoners charged
with institutional rules violations are only entitled to
relief under the Due Process Clause when the disciplinary
action may result in a sanction that will infringe upon a
constitutionally protected liberty interest. Sandin v.
Conner, 515 U.S. 472, 483-84 (1995). These protected
liberty interests can emanate from either the Due Process
Clause itself or from state law-Kentucky Dept. of
Corrections v. Thompson, 490 U.S. 454, 460 (1989)-but
the range of constitutionally protected liberty interests is
a "narrow" one. Orellana v. Kyle, 65 F.3d
29, 31-32 (5th Cir. 1995) (citing Sandin).
does not identify any particular right found in the Due
Process Clause upon which his habeas petition is grounded. To
the extent that the disciplinary conviction and any
consequent reduction in his time-earning classification may
affect Nelson's eligibility for early release from
prison, the Due Process Clause does not include a right to
conditional release before the expiration of a valid
sentence. Greenholtz v. Inmates of the Neb. Penal &
Correctional Complex, 442 U.S. 1, 7 (1979). Under these
circumstances, then, Nelson's petition depends on the
existence of a constitutionally protected liberty interest
created by state law.
Supreme Court has decided that only those state-created
substantive interests which "inevitably affect the
duration of [a prisoner's] sentence" may qualify for
constitutional protection under the Due Process Clause.
Sandin, 515 U.S. at 487; see also Kyle, 65
F.3d at 31-32. In Texas, only those inmates who are eligible
for mandatory supervision have a constitutional expectancy of
early release. Malchiv. Thaler, 211 F.3d953, 956-59
(5th Cir. 2000) (addressing the mandatory supervision scheme
in place prior to September 1, 1996); Teague v.
Quarterman, 482 F.3d 769, 774-77 (5th Cir. 2007)
(discussing the mandatory supervision schemes in place both
before and after September 1, 1996). It follows that a Texas
prisoner cannot demonstrate a constitutional violation
without first establishing: (1) that he is eligible for early
release on mandatory supervision; and (2) that the
disciplinary conviction at issue resulted in a loss of credit
for good conduct (i.e., good-time credit).
Malchi, 211 F.3d at 956-59 (explaining that only
those Texas inmates who are eligible for early release on
mandatory supervision have a protected liberty interest in
their previously earned good-time credit). Although he lost
good-time credit, Nelson is not eligible for early release on
mandatory supervision (Dkt. 1 at p. 5). See Tex.
Gov't Code § 508.149(a)(7). That fact is fatal to
Nelson's due process claims.
true that Nelson's custody classification was reduced as
a result of the disciplinary proceeding. However, the Fifth
Circuit has held that reductions in a prisoner's
time-earning status, and the potential impact of those
reductions on good-time credit earning ability, are too
attenuated from the prisoner's ultimate release date to
invoke the procedural guarantees of the Due Process Clause.
Malchi, 2\\ F.3d at 958-59; Luken v. Scott, !
I F.3d 192, 193 (5th Cir. 1995); Neals v.
Norwood, 59 F.3d 530, 533 (5th Cir. 1995). Moreover,
changes in the conditions of Nelson's confinement
resulting from the reduction in his custody classification do
not affect the duration or fact of Nelson's confinement
and do not constitute atypical, significant hardships going
beyond the ordinary incidents of prison life. They therefore
do not implicate due process concerns. Madison v.
Parker, 104 F.3d 765, 768 (5th Cir. 1997);
Malchi, 211 F.3d at 958 (citing Preiser v.
Rodriguez, 411 U.S. 475, 493 (1973)). The same is true
of the temporary limitations imposed on Nelson's
the sanctions at issue do not implicate a protected liberty
interest, Nelson cannot demonstrate a violation of the Due
Process Clause. Absent an allegation that the petitioner has
been deprived of some right secured to him by the United
States Constitution or laws of the United States, federal
habeas corpus relief is not available. See Kyle, 65
F.3d at 31-32; Hilliard v. Board of Pardons and
Paroles, 759 F.2d 1190, 1192 (5th Cir. 1985). Thus, the
pending federal habeas petition must be dismissed.
CERTIFICATE OF APPEALABILITY
federal habeas corpus petition filed in this case is governed
by the Antiterrorism and Effective Death Penalty Act (the
"AEDPA"), codified as amended at 28 U.S.C. §
2253. Therefore, a certificate of appealability is required
before an appeal may proceed. See Miller-El v.
Cockrell,537 U.S. 322, 336 (2003); see also
Hallmark v. Johnson,118 F.3d 1073, 1076 (5th Cir. 1997)
(noting that ...