United States District Court, S.D. Texas, Galveston Division
MEMORANDUM OPINION AND ORDER
C. Hanks Jr. United States District Judge.
Michael Allan Biter is an inmate in the Texas Department of
Criminal Justice-Correctional Institutions Division
(“TDCJ”). He filed a petition for a writ of
habeas corpus under 28 U.S.C. § 2254 to challenge a
prison disciplinary proceeding (Dkt. 1). After reviewing all
of the pleadings 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 reasons set forth below.
is currently imprisoned at TDCJ's Terrell Unit. He is
incarcerated based on convictions for robbery (No.
F-023280-TN) and aggravated robbery (No. F-023287-TN) in
Dallas County. See Offender Information Search,
(last visited Aug. 28, 2019). His petition does not challenge
his conviction or sentence. Rather, he seeks relief from a
disciplinary conviction at the Powledge Unit in disciplinary
case number 20190101437 (Dkt. 1, at 5). Biter was punished by
the loss of eight days of “good time” credits, a
reduction in custody status, and restrictions on contact
visits, commissary, recreation, and phone use (id.).
He states that he is not eligible for release on mandatory
supervision (id.). He also states that he appealed
the conviction through TDCJ's two-step administrative
grievance procedure (id. at 5-6). He seeks to
overturn the disciplinary conviction against him.
PRISON DISCIPLINARY PROCEEDINGS
habeas claims pertain to a disciplinary case at the Powledge
Unit, which is in Anderson County in the Eastern District of
Texas, Tyler Division. See 28 U.S.C. §
124(c)(1). This Court may hear Biter's petition because,
at the time he filed his petition, he was incarcerated in
Brazoria County, which is within the boundaries of the
Galveston Division of the Southern District of Texas.
See 28 U.S.C. § 124(b)(1); 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 due process violation in this case
because, as he admits in his petition, he is ineligible for
mandatory supervision (Dkt. 1, at 5). Biter was convicted of
aggravated robbery under Texas Penal Code § 29.03 and,
as a matter of Texas law, this conviction renders him
ineligible. See Tex. Gov't Code §
508.149(a)(12) (inmates serving a sentence for conviction
under Texas Penal Code § 29.03 “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.
Biter's disciplinary conviction also resulted in a
reduction of his classification, which can have a potential
impact on the prisoner's ability to earn good time
credit, the Fifth Circuit has held that this consequence is
too attenuated to be protected by the Due Process Clause.
See Id. at 958; Luken v. Scott, 71 F.3d
192, 193 (5th Cir. 1995). Moreover, the Fifth Circuit has
held that sanctions affecting an inmate's privileges,
such as those for recreation or commissary, are “merely
changes in the conditions of [an inmate's]
confinement” and do not implicate due process concerns.
Madison v. Parker, 104 F.3d 765, 768 (5th Cir.
these circumstances, Biter cannot demonstrate a due process
violation and his pending federal habeas corpus petition must
be dismissed for failure to state a claim upon which relief
may be granted.
extent Biter seeks to bring a claim regarding a false or
retaliatory disciplinary charge, the claim would properly be
brought as a civil rights claim under 42 U.S.C. § 1983.
See, e.g., Brown v. Taylor, 911
F.3d 235, 245 (5th Cir. 2018); Woods v. Smith, 60
F.3d 1161 (5th Cir. 1995); Huff v. Thaler, 518
Fed.Appx. 311 (5th Cir. 2013). The Court declines to
redesignate Biter's potential retaliation claim as a
civil rights case because Biter would then be required to pay
the $400 filing fee or, if granted leave to proceed in
forma pauperis, to pay the filing fee in installments.
Moreover, under the statute governing venue for civil rights
claims, venue would be improper in this judicial district
because the events giving rise to a potential civil rights
claim took place in Anderson County in the Eastern District
of Texas, Tyler Division. See 28 U.S.C. §
1391(b) (a civil action may be brought in a judicial district
in which the defendants reside or “a substantial part
of the events or omissions giving rise to the claim
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 ...