Joseph v. Livingston

Filing 10

ORDER OVERRULING OBJECTIONS AND ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION. Petitioner has failed to demonstrate that the punishment he received as a result of his disciplinary conviction included the loss of previously earned go od conduct time credits or imposed an atypical and significant hardship on him in relation to the ordinary incidents of prison life. Petitioner is not entitled to due process of law in connection with the disciplinary proceeding. Signed by District Judge Ron Clark on 5/24/18. (mrp, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
BEAUMONT DIVISION
DEMETRIUS SHERMAN JOSEPH, SR.

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VS.

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DIRECTOR, TDCJ-CID

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CIVIL ACTION NO. 1:16cv166

ORDER OVERRULING OBJECTIONS AND ADOPTING
THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner Demetrius Sherman Joseph, Sr., 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. Petitioner challenges a prison disciplinary conviction.
The court referred this matter to the Honorable Keith F. Giblin, United States Magistrate
Judge. The Magistrate Judge has submitted a Report and Recommendation of United States
Magistrate Judge. The Magistrate Judge recommends that the petition be denied with prejudice.
The court has received and considered the Report and Recommendation of United States
Magistrate Judge, along with the record and pleadings. 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 lack merit. Petitioner has failed to demonstrate that the punishment he
received as a result of his disciplinary conviction included the loss of previously earned good
conduct time credits or imposed an atypical and significant hardship on him in relation to the
ordinary incidents of prison life. As a result, petitioner was not entitled to due process of law in
connection with the disciplinary proceeding. Sandin v. Conner, 512 U.S. 472, 483-84 (1995).
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 as the opinion of the court. A final judgment shall be entered in accordance with the
recommendation of the Magistrate Judge.
In addition, the court is of the opinion that the petitioner is not entitled to a certificate of
appealability. An appeal from a judgment denying federal habeas relief may not proceed unless a
judge issues a certificate of appealability. See U.S.C. § 2253. The standard that must be met in order
to receive a certificate of appealability 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). To make a substantial showing, the petitioner
is not requited to demonstrate that he would prevail on the merits. Rather, he need only 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 in the petition are worthy of encouragement to
proceed further. See Slack, 529 U.S. at 483-84. If the petition was dismissed 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 should be 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. 2000).
In this case, the petitioner has not shown that the issues raised in his petition are subject to
debate among jurists of reason. The factual and legal questions raised by petitioner have been
consistently resolved adversely to his position and the questions presented are not worthy of
encouragement to proceed further. As a result, a certificate of appealability shall not issue.

So Ordered and Signed
May 24, 2018