United States District Court, S.D. Texas, Galveston Division
MEMORANDUM OPINION AND ORDER
C. HANKS JR. UNITED STATES DISTRICT JUDGE.
inmate Tommie Joe Denson filed a petition for a writ of
habeas corpus (Dkt. 1) seeking relief from a prison
disciplinary conviction. After reviewing the pleadings, the
applicable law, and all matters of record, the Court will
dismiss this action for the reasons explained below.
is serving a sixty-year sentence in the Texas Department of
Criminal Justice-Correctional Institutions Division
(“TDCJ”) for a conviction in Potter County.
TDCJ's public records reflect that his sentence is the
result of convictions for burglary of a habitation and
aggravated sexual assault.
petition seeks relief from a conviction in disciplinary case
number 20180189456 (Dkt. 1, at 5). The challenged
disciplinary conviction was entered against him while
confined at the Ramsey I Unit in Rosharon, Texas. Denson
states that he was charged with attempting to possess a cell
phone and was found guilty on March 21, 2018. As a result of
the conviction, Denson forfeited 180 days of previously
earned good-time credit. He states that he also lost
forty-five days of recreation privileges, forty-five days of
commissary privileges, and forty-five days of Offender
Telephone System privileges; that his line class and custody
level were changed; and that his aunt was removed from his
visitation list. Denson alleges due process violations,
insufficient evidence supporting the conviction, and bias in
the classification board. He states in his petition, signed
on March 27, 2018, that he appealed the guilty finding
through TDCJ's grievance procedure and that his appeal is
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, 418 U.S. 539, 557 (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, 515 U.S. 472 (1995); Toney v. Owens,
779 F.3d 330, 336 (5th Cir. 2015). 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) (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).
preliminary matter, the Court notes that Denson received his
disciplinary conviction on March 21, 2018, and that his
administrative appeal was pending at the time he filed his
petition in this Court. Under 28 U.S.C. § 2254(b), a
petitioner “must exhaust all available state remedies
before he may obtain federal habeas corpus relief.”
Sones v. Hargett, 61 F.3d 410, 414 (5th Cir. 1995).
Texas prisoners who challenge the result of a prison
disciplinary conviction must seek relief through the two-step
prison grievance process that is available within the TDCJ.
Ex parte Brager, 704 S.W.2d 46, 46 (Tex. Crim. App.
1986); Gartrell v. Gaylor, 981 F.2d 254, 258 n.3
(5th Cir. 1993). See Johnson v. Johnson, 385 F.3d
503, 515 (5th Cir. 2004) (describing the two-step grievance
process available in TDCJ); Tex. Gov't Code §
501.008. Therefore, the petition is subject to dismissal for
failure to exhaust administrative remedies.
fundamentally, Denson cannot demonstrate a constitutional
violation in this case because he admits that he is
ineligible for mandatory supervision (Dkt. 1, at 5). As a
matter of Texas law, prisoners convicted of aggravated sexual
assault are not eligible for mandatory supervision.
See Tex. Gov't Code § 508.149(a)(8). This
is fatal to his claims. See Malchi, 211 F.3d at
957-58. Moreover, although Denson's conviction also
resulted in the loss of privileges, the Fifth Circuit has
recognized that sanctions such as these, which are
“merely changes in the conditions of [an inmate's]
confinement, ” do not implicate due process concerns.
Madison v. Parker, 104 F.3d 765, 768 (5th Cir.
1997). Reductions in a prisoner's custodial
classification and the potential impact on good-time credit
earning ability also are too attenuated to be protected by
the Due Process Clause. See Malchi, 211 F.3d at 958;
Luken v. Scott, 71 F.3d 192, 193 (5th Cir. 1995).
these circumstances, Denson cannot demonstrate a
constitutional violation and his pending federal habeas
corpus petition must be dismissed for failure to state a
claim upon which relief may be granted.
CERTIFICATE OF APPEALABILITY
corpus actions under 28 U.S.C. § 2254 or § 2255
require a certificate of appealability to proceed on appeal.
28 U.S.C. § 2253(c)(1); Miller-El v. Cockrell,
537 U.S. 322, 335-36 (2003). Rule 11 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.
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, 542 U.S.
274, 282 (2004) (quoting Slack v. McDaniel, 529 U.S.
473, 484 (2000)). Under the controlling standard, a
petitioner must show “that reasonable jurists could
debate whether (or, for that matter, agree that) the petition
should have been resolved in a different manner or that the
issues presented were adequate to deserve encouragement to
proceed further.” Miller-El, 537 U.S. at 336
(internal citation and quotation marks omitted). Where denial
of relief is based on procedural grounds, the petitioner must
show not only that “jurists of reason would find it
debatable whether the petition states a valid claim of the
denial of a constitutional right, ” but also that they
“would find it debatable whether the district court was
correct in its procedural ruling.” Slack, 529
U.S. at 484.
district court may deny a certificate of appealability,
sua sponte, without requiring further briefing or
argument. Alexander v. Johnson,211 F.3d 895, 898
(5th Cir. 2000). After careful review of the pleadings and
the applicable law, the Court concludes that reasonable
jurists would not find its assessment of the claims debatable
or wrong. Because the petitioner does not allege facts
showing that ...