United States District Court, E.D. Texas, Lufkin Division
ORDER OVERRULING PETITIONER'S OBJECTIONS AND
ADOPTING THE MAGISTRATE JUDGE'S REPORT AND
CLARK, SENIOR DISTRICT JUDGE
Elloyd Johnson, a prisoner confined in the Texas Department
of Criminal Justice, Correctional Institutions Division,
brought this petition for writ of habeas corpus pursuant to
28 U.S.C. § 2254.
Court referred this matter to the Honorable Zack Hawthorn,
United States Magistrate Judge, for consideration pursuant to
applicable laws and orders of this Court. The Magistrate
Judge has submitted a Report and Recommendation of United
States Magistrate Judge. The Magistrate Judge recommends
denying the petition.
Court has received and considered the Report and
Recommendation of United States Magistrate Judge, along with
the record and the pleadings. Petitioner filed objections to
the Magistrate Judge's Report and Recommendation.
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
inmate charged with a rule violation is entitled to certain
rights if the disciplinary action may result in a sanction
that imposes upon a liberty interest. In such circumstances,
the Fourteenth Amendment guarantees inmates the following
procedural rights: 1) written notice of the charges at least
twenty-four hours prior to the hearing; 2) the right to be
present at the hearing; 3) the right to present witnesses and
evidence; and 4) the right to receive a written copy of the
hearing record. Wolff v. McDonnell, 418 U.S. 539,
556 (1974); Houser v. Dretke, 395 F.3d 560, 562 (5th
contends that he was denied due process in case number
20180020254 when the disciplinary hearing officer denied
petitioner's request to call witnesses. However, inmates
do not have an unrestricted right to call witnesses at
disciplinary hearings. Wolff, 418 U.S. at 566.
Prison officials have discretion to refuse to call witnesses,
particularly where the testimony would be irrelevant or
unnecessary. Id. In this case, petitioner has not
identified the excluded witnesses or summarized their
expected testimony. Therefore, petitioner has not shown that
the testimony was relevant or necessary.
also contends that one witness testified by telephone, and
that the disciplinary hearing officer required petitioner to
have a substitute counsel instead of representing himself.
Petitioner has not demonstrated that the result of the
hearing would have been different if petitioner had been able
to call the unidentified witnesses, a witness had provided
live testimony instead of testifying by telephone, and he was
allowed to represent himself. Because he has not demonstrated
that he was prejudiced by the alleged constitutional
violations, petitioner is not entitled to relief. See
Simpson v. Ortiz, 995 F.2d 606, 609 (5th Cir. 1993)
(holding that habeas relief is not available unless the
petitioner shows he was prejudiced as a result of the alleged
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.),
cert. denied, 531 U.S. 849 (2000).
the 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. In addition, the
questions presented are not worthy of encouragement to
proceed further. Therefore, the petitioner has failed to make
a sufficient showing to merit the issuance of a certificate
of appealability. Accordingly, a certificate of appealability
will not be issued.
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 ...