United States District Court, S.D. Texas, Galveston Division
MEMORANDUM OPINION AND ORDER
C. Hanks Jr. United States District Judge
Kevin Wilson, an inmate in the Texas Department of Criminal
Justice- Correctional Institutions Division
(“TDCJ”), has filed a Petition (Dkt. 1) for a
federal writ of habeas corpus under 28 U.S.C. § 2254.
Wilson challenges 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
is serving a ten-year sentence in TDCJ for a 2015 conviction
in Galveston County, case numbers 14CR1790 and 14CR1791.
TDCJ's public records reflect that his sentence is the
result of convictions for manslaughter and aggravated assault
with a deadly weapon.
Petition, docketed with the Court on April 4, 2018, seeks
relief from a conviction in disciplinary case number
20170246310 (Dkt. 1, at 5). Wilson provides the disciplinary
hearing records along with his Petition. The challenged
disciplinary conviction was entered against him while
confined at the Wallace Pack Unit in Grimes County, Texas.
Wilson was charged with threatening an officer identified as
“Officer Wood” and was found guilty on April 20,
2017. As a result of his disciplinary conviction, he lost 300
days of previously earned good time credit. In addition, he
lost forty-five days of recreation privileges, forty-five
days of commissary privileges, and forty-five days of
Offender Telephone System privileges; his line class was
reduced; and he was assigned forty-two extra duty hours.
Wilson alleges that his rights were violated during the
hearing because (1) a mental health advocate was not present,
(2) the accusing officer was not present, (3) another officer
testified that Wilson had not made a threat against Officer
Wood, and (4) his statement to Officer Wood was not a threat
(Dkt. 1, at 6-7). With his Petition, Wilson has supplied
documents showing that he appealed his disciplinary
conviction through TDCJ's two-step administrative
PRISON DISCIPLINARY PROCEEDINGS
preliminary matter, this Court may hear Wilson's petition
because he was convicted and sentenced in Galveston County.
See 28 U.S.C. § 2241(d); Wadsworth v.
Johnson, 235 F.3d 959, 961 (5th Cir. 2000).
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).
cannot demonstrate a constitutional violation in this case
because, as he admits in his Petition, he is ineligible for
mandatory supervision (Dkt. 1, at 5). Wilson was convicted of
aggravated assault under Texas Penal Code § 22.02 and,
as a matter of Texas law, this conviction renders him
ineligible. See Tex. Gov't Code §
508.149(a)(7) (inmates previously convicted under Texas Penal
Code § 22.02 “may not be released to mandatory
supervision”). This is fatal to his claims. 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. See Malchi, 211
F.3d at 957-58.
Wilson's conviction also resulted in the loss of
recreation, commissary, and telephone 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
classification, which can have a potential impact on the
prisoner's ability to earn good time credit, 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, Wilson 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 ...