Guice v. Director, TDCJ-CID
MEMORANDUM ORDER OVERRULINLG PETITIONER'S OBJECTIONS AND ADOPTING THE MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION that this petition for writ of habeas corpus be denied. A certificate of appealability will not be issued. Signed by Judge Marcia A. Crone on 1/4/17. (mrp, )
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF TEXAS
CIVIL ACTION NO. 1:16-CV-492
MEMORANDUM ORDER OVERRULING PETITIONER’S OBJECTIONS AND
ADOPTING THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner Antoine Guice, a prisoner confined at 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.
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 denying the petition.
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). Petitioner contends he was entitled to due process
because his time earning class was reduced. Petitioner alleges the reduction in time earning class
affects how much good time he earns and potentially will impact future parole determinations.
After careful consideration, the court concludes the objections are without merit.
Prisoners charged with rule violations are entitled to certain due process rights when the
disciplinary action results in a sanction that will impose upon a liberty interest. Sandin v. Conner,
515 U.S. 472, 483-84 (1995); Thompson v. Cockrell, 263 F.3d 423, 425 (5th Cir. 2001).
Generally, the only sanction that imposes upon a liberty interest is the loss of good time credits
for an inmate whose release on mandatory supervision will be delayed by the loss of the credits.
Malchi v. Thaler, 211 F.3d 953, 958 (5th Cir. 2000); see also Teague v. Quarterman, 482 F.3d
769, 774 (5th Cir. 2007). An inmate does not have a right to a particular time earning status.
Malchi, 211 F.3d at 959. Further, a potential delay in parole does not support a constitutional
claim because there is no constitutional expectation of release on parole in Texas. Id. at 957.
Additionally, 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). 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
Petitioner has not shown that any of the issues raised by his claims are subject to debate
among jurists of reason. 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, petitioner’s objections (#7) are OVERRULED. The findings of fact and
conclusions of law of the magistrate judge are correct, and the report of the magistrate judge (#5)
is ADOPTED. A final judgment will be entered in this case in accordance with the magistrate
judge’s recommendation. A certificate of appealability will not be issued.
SIGNED at Beaumont, Texas, this 7th day of September, 2004.
SIGNED at Beaumont, Texas, this 4th day of January, 2017.
MARCIA A. CRONE
UNITED STATES DISTRICT JUDGE
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