Sullivan v. Wallace

Filing 11

MEMORANDUM ORDER OVERRULING PETITIONER'S OBJECTIONS AND ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION that the petition be denied. A certificate of appealability shall not be issued. Signed by Judge Marcia A. Crone on 7/14/14. (mrp, )

UNITED STATES DISTRICT COURT
ROBERT SULLIVAN,
Petitioner,
versus
DIRECTOR, TDCJ-CID,
Respondent.

EASTERN DISTRICT OF TEXAS
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CIVIL ACTION NO. 1:13-CV-687

MEMORANDUM ORDER OVERRULING PETITIONER’S OBJECTIONS AND
ADOPTING THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner Robert Sullivan, an inmate confined at the Stiles Unit, proceeding pro se,
brought this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
The court referred this matter to the Honorable Zack Hawthorn, United States Magistrate
Judge, at Beaumont, Texas, for consideration pursuant to applicable laws and orders of this court.
The magistrate judge recommends that the petition be denied.
The court has received and considered the Report and Recommendation of United States
Magistrate Judge, along with the record, pleadings and all available evidence. Petitioner filed
objections to the magistrate judge’s Report and Recommendation.
The 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
Petitioner’s objections are without merit.
Petitioner asserts the duration of his sentence was effected because he was reduced two
levels in time-earning classification; however, “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.” Luken v. Scott, 71 F.3d 192, 193 (5th Cir. 1995), cert. denied,
Luken v. Johnson, 116 S. Ct. 1690 (1996). Petitioner’s claims do not serve as a basis for habeas
corpus relief, but rather may form the basis for a complaint under 42 U.S.C. § 1983. See Spencer
v. Bragg, 310 F. App’x. 678, 2009 WL 405864, at *1 (5th Cir. Feb. 18, 2009); Cook v.

Hanberry, 592 F.2d 248, 249 (5th Cir. 1979). Thus, petitioner must pursue his claims by filing
an appropriate civil rights action. Here, it would not further the interests of justice to construe
petitioner’s petition as a civil rights action. Allowing petitioner to prosecute this action based on
the payment of the $5.00 filing fee applicable to petitions for writ of habeas corpus instead of the
$400.00 filing fee applicable to civil actions would allow petitioner to circumvent the filing fee
requirements of the Prison Litigation Reform Act. See 28 U.S.C. § 1915. The dismissal of this
action is without prejudice to petitioner’s ability to file his claims in a civil rights action should
he choose to do so.
Furthermore, 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. 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).
Here, the petitioner has not shown that any of the issues raised by his claims are subject
to debate among jurists of reason. The factual and legal questions advanced by the petitioner are
not novel and have been consistently resolved adversely to his position. In addition, the questions
presented are not worthy of encouragement to proceed further. Therefore, the petitioner has failed
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to make a sufficient showing to merit the issuance of a certificate of appealability. Accordingly,
a certificate of appealability shall not be issued.
ORDER
Accordingly, 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

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judge’s recommendation.
SIGNED at Beaumont, Texas, this 7th day of September, 2004.
SIGNED at Beaumont, Texas, this 14th day of July, 2014.

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MARCIA A. CRONE
UNITED STATES DISTRICT JUDGE

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