United States District Court, S.D. Texas, Corpus Christi Division
MEMORANDUM AND RECOMMENDATION
B. LIBBY, UNITED STATES MAGISTRATE JUDGE
Michael Dean Perry (1838827) is an inmate in the Texas
Department of Criminal Justice-Correctional Institutions
Division (“TDCJ-CID”) and is currently
incarcerated at the McConnell Unit in Beeville, TX.
Petitioner filed this petition pursuant to 28 U.S.C. §
2254 on May 27, 2019, challenging a disciplinary proceeding
conviction for threatening to harm a corrections officer,
creating a disturbance and refusing an order which resulted
in commissary, visitation, telephone and recreation
restrictions, modifications to his line class status, and the
loss of 30 previously earned good-time days. (D.E. 1, Page 5
and D.E. 1-2).
petition, Petitioner acknowledges he is not eligible for
mandatory supervision as he is serving enhanced sentences of
60 years' imprisonment for aggravated assault with a
deadly weapon and assault family violence with prior family
violence. (D.E. 5, Pages 2 and 5); Tex. Gov't Code Ann.
§508.149 (a)(7) (stating an inmate may not be released
to mandatory supervision if the inmate has been previously
convicted of a first degree felony or a second degree felony
of aggravated assault under Section 22.02, Penal Code
(Aggravated Assault)); State of Texas v. Perry, No.
42-139-A, 188th Dist. Ct., Gregg County, Tex. Feb. 28, 2013)
(Judgment) (Aggravated Assault). Therefore, on August 9,
2019, the undersigned ordered Petitioner to show cause why
his petition should not be dismissed on or before August 28,
2019. (D.E. 19). Petitioner then requested an additional
thirty days to file a response to the Order to Show Cause,
which was denied on August 19, 2019. (D.E. 24). On August 30,
2019, Petitioner filed objections to the undersigned's
August 19, 2019 Order, as well as several of the
undersigned's Orders in Petitioner's dismissed
prisoner civil rights action (No. 19-cv-137) but he has
failed to file a response to the Order Show Cause. (D.E. 25).
of the Rules Governing Section 2254 Cases provides authority
to summarily dismiss frivolous habeas petitions upon
preliminary review, prior to any answer or other pleading by
the state. Kiser v. Johnson, 163 F.3d 326, 328 (5th
Cir. 1999). Specifically, the rule states that “[i]f it
plainly appears from the petition and any attached exhibits
that the petitioner is not entitled to relief in the district
court, the judge must dismiss the petition and direct the
clerk to notify the petitioner.” 28 U.S.C. § 2254,
Rule 4. This power of the district court is rooted in
“the duty of the court to screen out frivolous
applications and eliminate the burden that would be placed on
the respondent by ordering an unnecessary answer.”
Kiser, 163 F.3d at 328 (quoting 28 U.S.C. §
2254 Rule 4 Advisory Committee Notes).
habeas corpus petitions are governed by the Antiterrorism and
Effective Death Penalty Act of 1996 (“AEDPA”).
Relief shall not extend to a prisoner unless he is “in
custody in violation of the Constitution or laws or treaties
of the United States.” 28 U.S.C. § 2241(c)(3)
& § 2254(a); Brecht v. Abrahamson 507 U.S.
619, 633-34 (1993). In prison disciplinary hearings,
prisoners are only entitled to due process guarantees when
the hearing may result in sanctions that infringe on
constitutionally protected interests. Sandin v.
Conner, 515 U.S. 472, 483-84 (1995). These interests are
generally limited to sanctions that affect the
quantity of time served by a prisoner, not the
condition. Madison v. Parker, 104 F.3d 765, 767 (5th
Cir. 1997). Therefore, to state a claim for federal habeas
corpus relief, Petitioner must show he was denied due process
in a disciplinary action which resulted in sanctions
affecting the duration of his sentence. The loss of good-time
credits does not support a constitutional claim if the inmate
is not eligible for mandatory supervision and therefore, such
an inmate would not have a claim for federal habeas relief.
Arnold v. Cockrell, 306 F.3d 277, 278 (5th Cir.
2002). Further, phone privileges, recreation limitations and
adjustments to a prisoner's classification also do not
implicate due process. Madison, 104 F.3d at 768;
see also Malchi v. Thaler, 211 F.3d 953, 958-59 (5th
case, Petitioner is not eligible for mandatory supervision.
Therefore, Petitioner has failed to state any grounds for
federal habeas relief. To the extent Petitioner asserts his
line class status affects his ability to appear before the
parole board, the restrictions on Petitioner are mere changes
in conditions of confinement and do not pose significant
hardships beyond the ordinary incidents of prison life.
See Madison, 104 F.3d at 768. Release on parole is
entirely speculative, therefore, there is no constitutional
expectancy of parole in Texas. Id. As such,
sanctions imposed on Petitioner, including a reduction in
line class, do not implicate due process concerns and do not
require federal habeas corpus relief. See Luken v.
Scott, 71 F.3d 192, 193-195 (5th Cir. 1995) (changes to
line classification are not challengeable in federal habeas
corpus as the “mere opportunity to earn good-time
credits [does not] create a constitutionally cognizable
liberty interest sufficient to trigger the protection of the
Due Process Clause”); see also Malchi, 211
F.3d at 957-58 (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). Therefore, it is respectfully
recommended that Petitioner's application for habeas
corpus relief be DISMISSED.
further recommended that a Certificate of Appealability be
DENIED as reasonable jurists could not
debate the dismissal or denial of the Petitioner's
§2254 petition on substantive or procedural grounds, nor
find that the issues are adequate to deserve encouragement to
proceed. Miller-El v. Cockrell, 537 U.S. 322, 336
(2003); 28 U.S.C. § 2253(c)(2); Slack v.
McDaniel, 529 U.S. 473, 484 (2000).
Clerk will file this Memorandum and Recommendation and
transmit a copy to each party or counsel. Within
FOURTEEN (14) DAYS after being served with a
copy of the Memorandum and Recommendation, a party may file
with the Clerk and serve on the United States Magistrate
Judge and all parties, written objections, pursuant to 28
U.S.C. § 636(b)(1)(c); Rule 72(b) of the Federal Rules
of Civil Procedure; and Article IV, General Order No.
2002-13, United States District Court for the Southern
District of Texas.
party's failure to file written objections to the
proposed findings, conclusions, and recommendations in a
Magistrate Judge's report and recommendation within
FOURTEEN (14) DAYS after being served with a
copy shall bar that party, except upon grounds of plain
error, from attacking on appeal the unobjected-to proposed
factual findings and legal conclusions accepted ...