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
Larry Gene Sewell, 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. Docket No.
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 recommending the petition be denied. Docket
Court has received and considered the Report and
Recommendation of the Magistrate Judge, along with the
record, pleadings and all available evidence. The petitioner
filed objections to the Report and Recommendation. Docket No.
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 during a
disciplinary proceeding. Docket No. 1 at 6. Prisoners are
entitled to certain due process rights if a disciplinary
proceeding results in a sanction that imposes upon a liberty
interest. Sandin v. Conner, 515 U.S. 472, 483-84
(1995). Generally, the only sanction that imposes upon a
liberty interest is the loss of good time credits for an
inmate who is eligible for release on mandatory supervision
and whose release will be delayed by the loss of the credits.
Malchi v. Thaler, 211 F.3d 953, 958 (5th Cir. 2000).
Magistrate Judge found that the petitioner was not entitled
to due process during the disciplinary proceeding because he
is not eligible for release on mandatory supervision. Docket
No. 4 at 2. The petitioner was convicted of murder and
sentenced to life imprisonment in 1985. Docket No. 1 at 2. In
his objections, the petitioner contends that upon arriving to
prison, he was told that he would be a prospect for release
on mandatory supervision based on the mandatory supervision
statute in effect at that time. Docket No. 5 at 2. The Texas
Court of Criminal Appeals, however, has interpreted the
mandatory supervision statute, Article 42.12 of the Texas
Code of Criminal Procedure, to provide that inmates sentenced
to life imprisonment are not eligible for release on
mandatory supervision. Ex parte Franks, 71 S.W.3d
327, 327 (Tex. Crim. App. 2001). This has been the case since
1981, prior to when the petitioner committed his offense.
Ellason v. Owens, 526 Fed.Appx. 342, 344 (5th Cir.
because the petitioner received a life sentence, he is not
eligible for release under the Texas mandatory supervision
statute. Id. Therefore, the disciplinary proceeding
did not infringe upon a liberty interest, and the petitioner
was not entitled to procedural protections before punishment
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. 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).
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. 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.
the 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 ...