United States District Court, S.D. Texas, Houston Division
MEMORANDUM OPINION AND ORDER
LAKE UNITED STATES DISTRICT JUDGE
inmate Ki Allan Malone has filed a Petition for a Writ of
Habeas Corpus By a Person in State Custody
("Petition") (Docket Entry No. 1), seeking relief
from a prison disciplinary conviction. After considering the
pleadings and the applicable law, the court will dismiss this
action for the reasons explained below.
is currently serving a life sentence in the Texas Department
of Criminal Justice - Correctional Institutions Division
("TDCJ") as the result of a conviction that was
entered against him in the 69th District Court of Moore
County, Texas. Malone seeks relief in the form of a
federal writ of habeas corpus to challenge a prison
disciplinary conviction that was entered against him at the
Huntsville Unit, where he is currently
confined. In particular, Malone challenges a
conviction entered against him on August 23, 2017, in
disciplinary case number 20170376222, for having a
clothesline hanging in his cell after 7:00 a.m. in violation
of a posted prison rule. As a result of this disciplinary
conviction, Malone lost recreational privileges for ten
days. Malone filed grievances to challenge the
conviction, but his appeals were unsuccessful.
argues that the disciplinary charges were "false"
because they were issued by an officer who was not present
and did not witness the offense in violation of "TDCJ
Employee Conduct Codes." Malone contends further that he
was convicted of an offense that he did not commit and that
his grievances were not adequately
investigated. Malone contends, therefore, that he is
entitled to relief because he was convicted in violation of
his right to Due Process.
Prison Disciplinary Proceedings
inmate's rights in the prison disciplinary setting are
governed by the Due Process Clause of the Fourteenth
Amendment to the United States Constitution. See Wolff v.
McDonnell, 94 S.Ct. 2963, 2974-75 (1974). Prisoners
charged with institutional rules violations are entitled to
rights under the Due Process Clause only when the
disciplinary action may result in a sanction that will
infringe upon a constitutionally protected liberty interest.
See Sandin v. Conner, 115 S.Ct. 2293, 2302 (1995). A
Texas prisoner cannot demonstrate a Due Process violation in
the prison disciplinary context without first satisfying the
following criteria: (1) he must be eligible for early release
on the form of parole known as mandatory supervision; and (2)
the disciplinary conviction at issue must have resulted in a
loss of previously earned good-time credit. See Malchi v.
Thaler, 211 F.3d 953, 957-58 (5th Cir. 2000) .
admits that he is not eligible for mandatory supervision and
that he did not lose any previously earned good-time credit
as the result of his disciplinary conviction. The only sanction
imposed during his disciplinary proceeding was the loss of
recreational privileges for ten days. The Fifth Circuit has
decided that disciplinary sanctions resulting in the loss of
privileges do not pose an "atypical" or
"significant" hardship that implicates a
constitutionally protected liberty interest of the sort
protected by the Due Process Clause. See Madison v.
Parker, 104 F.3d 765, 768 (5th Cir. 1997) (observing
that limitations imposed on commissary privileges and
temporary cell restrictions are "merely changes in the
conditions of [an inmate's] confinement and do not
implicate due process concerns"). Because Malone cannot
establish a violation of constitutional proportion under
these circumstances, his Petition must be dismissed for
failure to state a claim upon which relief may be granted.
Certificate of Appealability
of the Rules Governing Section 2254 Cases requires a district
court to issue or deny a certificate of appealability when
entering a final order that is adverse to the petitioner. A
certificate of appealability will not issue unless the
petitioner makes "a substantial showing of the denial of
a constitutional right, " 28 U.S.C. § 2253(c)(2),
which requires a petitioner to demonstrate that
"reasonable jurists would find the district court's
assessment of the constitutional claims debatable or
wrong." Tennard v. Dretke, 124 S.Ct. 2562, 2565
(2004) (quoting Slack v. McDaniel, 120 S.Ct. 1595,
1604 (2000)). The court concludes that jurists of reason
would not debate the assessment of the petitioner's
claims or whether the petitioner has demonstrated the
violation of a constitutional right. Therefore, a certificate
of appealability will not issue.
Conclusion and Order
on the foregoing, the court ORDERS as
certificate of ...