United States District Court, S.D. Texas, Galveston Division
STEVEN D. WALKER, TDCJ #01927071, Petitioner,
LORIE DAVIS, Respondent.
MEMORANDUM OPINION AND ORDER
JEFFREY VINCENT BROWN UNITED STATES DISTRICT JUDGE
Steven D. Walker 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 (Dkt. 1) in the
Eastern District of Texas and seeks to challenge a prison
disciplinary proceeding. He also has filed an amended
petition (Dkt. 2) and dozens of other motions seeking
appointed counsel, summary judgment, and other relief. On
October 7, 2019, the court for the Eastern District of Texas,
Beaumont Division, transferred the case to this Court (Dkt.
57). 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 serving a sentence in Harris County for driving while
intoxicated, No. 141248801010. See Offender
Information Search, available at https://offender.
tdcj.texas.gov/OffenderSearch/index.jsp (last visited Nov. 8,
2019). His petition does not challenge his conviction or
sentence. Rather, he seeks relief from a disciplinary
conviction at the Leblanc Unit on September 13, 2018, in
disciplinary case number 2019004854 (Dkt. 1, at 2, 5). Walker
was punished by a reduction in custody status; loss of 30
days of commissary and recreation privileges; 30 days of cell
restriction; and “1 year set off parole”
(id. at 2). He states that he is eligible for
release on mandatory supervision (id. at 5). He also
states that he appealed the conviction through TDCJ's
two-step administrative grievance procedure (id. at
pleadings also allege that one defendant used
“excessive force” against him by “touching
him in a sexual manner” (Dkt. 2, at 8; see
Dkt. 1, at 6).
PRISON DISCIPLINARY PROCEEDINGS
Court may hear Walker's petition because he filed the
petition when incarcerated at the Ramsey I Unit in Brazoria
County, which is within the boundaries of the Galveston
Division of the Southern District of Texas. See 28
U.S.C. § 2241(d); 28 U.S.C. § 124(b)(1);
Wadsworth v. Johnson, 235 F.3d 959, 961 (5th Cir.
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 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, his disciplinary
sentence did not include the loss of previously earned
good-time credits (Dkt. 1, at 2, 5). This is fatal to his
claims. See Malchi, 211 F.3d at 957-58. Although
Walker alleges that the conviction resulted in a cell
restriction and 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). Likewise, a “set off” in a prisoner's
parole, or reductions in his custodial classification and the
potential impact on his ability to earn good-time credits,
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); Jenkins v.
Livingston, 388 Fed.Appx. 417, 419 (5th Cir. 2010)
(citing, inter alia, Orellana v. Kyle, 65
F.3d 29, 32 (5th Cir. 1995)). Under these circumstances,
Walker cannot demonstrate a violation of the Due Process
Clause and his pending federal habeas corpus petition must be
dismissed for failure to state a claim upon which relief may
extent Walker seeks to bring an excessive-force claim, the
claim is not cognizable on habeas review. Although the line
between habeas claims and civil-rights claims is sometimes
“blurry, ” “challenges to the fact or
duration of confinement are properly brought under habeas,
while challenges to the conditions of confinement are
properly brought under § 1983.” Poree v.
Collins, 866 F.3d 235, 243 (5th Cir. 2017) (footnotes
omitted). The Court declines to redesignate Walker's
potential excessive-force claim as a civil-rights case
because Walker 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 claim took
place in Jefferson County in the Eastern District of Texas,
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 ...