Hillary v. Livingston

Filing 3

MEMORANDUM OPINION regarding the petition for writ of habeas corpus. Signed by Judge Thad Heartfield on 4/11/06. (bjc, )

Hillary v. Livingston

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Case 1:06-cv-00193-TH-KFG

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IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS BEAUMONT DIVISION GEORGE A. HILLARY VS. DIRECTOR, TDCJ-CID § § § MEMORANDUM OPINION Petitioner George A. Hillary, an inmate confined in the Stiles Unit of the Texas Department of Criminal Justice, Correctional Institutions Division, proceeding pro se, filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Factual Background Petitioner challenges a prison disciplinary conviction. He CIVIL ACTION NO. 1:06cv193

states that on September 7, 2005, he was convicted of a disciplinary offense which resulted in the following sentence being imposed: (a) demotion from minimum custody to medium custody;

(b) 15 days in solitary confinement; (c) placement in isolation and (d) forfeiture of one year of previously earned good conduct time credits. Analysis Under 28 U.S.C. §§ 2241 and 2254, a federal court may only grant a writ of habeas corpus to state prisoners who are held in custody in violation of the Constitution, laws or treaties of the United States. Petitioner asserts he is entitled to relief under

Sections 2241 and 2254 because he was denied due process of law during a disciplinary proceeding.

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Prisoners charged with rule violations are entitled to certain due process rights under the Fourteenth Amendment to the Constitution where a disciplinary action results in a sanction that implicates a liberty interest. Prior to the Supreme Court's

decision in Sandin v. Conner, 115 S.Ct. 2293 (1995), courts examined state laws and regulations to determine whether a protected liberty interest was created by the use of mandatory language in a statute or regulation. In Sandin, however, the Supreme Court disapproved previous cases which "shift[ed] the focus of the liberty interest inquiry to one based on the language of a particular regulation, and not the deprivation." Sandin, 115 S.Ct. at 2299. The Court con-

cluded that such an inquiry "encouraged prisoners to comb regulations in search of mandatory language on which to base entitlements to various state-conferred privileges." Court held that: [s]tates may under certain circumstances create liberty interests which are protected by the Due Process Clause. But these interest will generally be limited to freedom from restraints which, while not exceeding the sentence in such an unexpected manner as to give rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life. Id. (citations omitted). As a general rule, only disciplinary sanctions which either result in loss of good conduct time credits for inmates who are Id. The

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eligible for release on mandatory supervision1 or directly and adversely affect release on mandatory supervision will impose upon a liberty interest. See Orellana v. Kyle, 65 F.3d 29, 31-

331 (5th Cir. 1995), cert. denied, 116 S.Ct. 736 (1996) ("Although Sandin cites with approval cases in which it was held that state law could create a constitutional liberty interest in goodtime credits, or release on parole, it is difficult to see that any other deprivations in the prison context ... will henceforth qualify for constitutional 'liberty' status.") (citations omitted). Being sentenced to solitary confinement, loss of

privileges, reduction in good time-earning classification and forfeiture of good conduct time credits if one is not eligible for release on mandatory supervision are not sanctions which impose an "atypical and significant hardship on the inmate in relation to the ordinary incidents of prison life." S.Ct. at 2299. Sandin, 115

See also Madison v. Parker, supra (concluding:

In Texas, prisoners who are eligible for release on mandatory supervis i o n must be released when certain criteria are satisfied. For example, p r i s o n e r s who are eligible for release on mandatory supervision are entitled to b e released when the time they have served plus the good conduct time credits t h e y have accrued equal their sentence. When the requirements for release on m a n d a t o r y supervision have been met, officials have no discretion as to whether o r not to release a prisoner. However, not all Texas prisoners are eligible f o r release on mandatory supervision. Inmates convicted of certain crimes are n o t eligible for such release. I n Madison v. Parker, 104 F.3d 765 (5th Cir. 1997), the United States C o u r t of Appeals for the Fifth Circuit explained the distinction between r e l e a s e on parole and release on mandatory supervision in the Texas system. The court stated that release on parole is a discretionary and conditional r e l e a s e of a prisoner so that the prisoner serves the remainder of his sentence u n d e r the supervision of the division of pardons and paroles. In contrast, a p r i s o n e r released on mandatory supervision serves the remainder of his sentence n o t on parole, but still under the supervision of the pardons and paroles d i v i s i o n . The court, citing Allison v. Kyle, 66 F.3d 71 (5th Cir. 1995), and C r e e l v. Keene, 928 F.2d 707 (5th Cir. 1991), stated release on parole was e n t i r e l y speculative and that there was no constitutional expectancy to release o n parole.

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(a) imposing thirty days of commissary and cell restriction as punishment merely constitutes changes in the condition of a prisoner's confinement and do not implicate due process concerns and (b) forfeiture of good conduct time credits earned by a prisoner who is not eligible for release on mandatory supervision does not implicate a liberty interest); Malchi v. Thaler, 211 F.3d 953 (5th Cir. 2000) (release on mandatory supervision is too speculative to give an inmate a liberty interest in not being demoted to a classification at which fewer days of good conduct time credits are earned); Luken v. Scott, 71 F.3d 192, 193 (5th Cir. 1995) ("the mere opportunity to earn good-time credits [does not] constitute a constitutionally cognizable liberty interest sufficient to trigger the protection of the Due Process Clause"), cert. denied sub. nom Luken v. Johnson, 116 S.Ct. 1690 (1996); Moody v. Baker, 857 F.2d 256, 257-58 (5th Cir.) ("An inmate has neither a protectible property nor liberty interest in his custody classification ...."), cert. denied, 488 U.S. 985 (1988). As a result of the disciplinary conviction complained of in this petition, petitioner's privileges were restricted, he was placed in a more restrictive custody classification and he was forced to forfeit previously earned good conduct time credits. In his petition, petitioner states he is not eligible for release on mandatory supervision. As a result, for the reasons set forth

above, the punishment imposed on petitioner as a result of this disciplinary conviction did not implicate a protected liberty interest. Accordingly, petitioner was not entitled to due 4

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process before receiving such punishment. of habeas corpus will therefore be denied. Conclusion

This petition for writ

For the reasons set forth above, this petition for writ of habeas corpus will be denied. A final judgment shall be entered

in accordance with this memorandum opinion.

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SIGNED this

11

day of

April

, 2006.

THAD HEARTFIELD UNITED STATES DISTRICT JUDGE

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