Brooks v. Dir, TDCJ

Filing 19

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 16 Report and Recommendations. Signed by Judge Michael H. Schneider on 7/15/2014. (sm, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TEXARKANA DIVISION
CHARLES DAVID BROOKS

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VS.

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DIRECTOR, TDCJ-CID

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CIVIL ACTION NO. 5:11-CV-153

MEMORANDUM ORDER OVERRULING OBJECTIONS AND ADOPTING
THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner, Charles David Brooks, an inmate formerly confined at the Telford Unit of the
Texas Department of Criminal Justice, Correctional Institutions Division, proceeding pro se and
in forma pauperis, filed this petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254.
The Court referred this matter to the Honorable Caroline Craven, United States
Magistrate Judge, at Texarkana, Texas, for consideration pursuant to applicable laws and orders
of this Court. The Magistrate Judge recommends this petition for writ of habeas corpus be
denied.
The Court has received and considered the Report and Recommendation of United States
Magistrate Judge filed pursuant to such order, along with the record, and pleadings. Petitioner
filed objections to the Report and Recommendation of United States Magistrate Judge. This
requires a de novo review of the objections in relation to the pleadings and applicable law. See
FED. R. CIV. P. 72(b).
After careful consideration, the Court finds petitioner’s objections are without merit. As
stated by the Magistrate Judge, “prison disciplinary proceedings are overturned only where no
evidence in the record supports the decision.” Broussard v. Johnson, 253 F.3d 874, 877 (5th Cir.
2001). “Determining the believability of the testimonies presented at the hearing is left to the
discretion of the hearing officer.” Hudson v. Johnson, 252 F.3d 534, 537 (5th Cir. 2001). The
information provided in a written incident report standing alone can satisfy the “some evidence”
standard. Id. At 536-37. Here, the disciplinary charge is supported by some evidence. The

Disciplinary Hearing Officer relied on the charging officer’s report and the charging officer’s
testimony during the hearing. Federal Courts will not review a disciplinary hearing officer’s
factual findings de novo, instead the courts will only consider whether the decision is supported
by “some facts” or by “a modicum of evidence.” Superintendent v. Hill, 472 U.S. 445, 454-55,
105 S.Ct. 2768, 86 L.Ed.2d 356 (1985).
Finally, a demotion in time-earning classification does not implicate due process
concerns. “[T]he 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). “An inmate has neither a protectible
property nor liberty interest in his custody classification. . . .” Moody v. Baker, 857 F.2d 256,
257-58 (5th Cir. 1988), cert. denied, 488 U.S. 985, 109 S.Ct. 540, 102 L.Ed.2d 570 (1988).
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
Judge’s recommendations.
Furthermore, the Court is of the opinion petitioner is not entitled to a certificate of
appealability. An appeal from a judgment denying post-conviction collateral relief may not
proceed unless a judge issues a certificate of appealability. See 28 U.S.C. § 2253. The standard
for 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 need not establish that he would 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
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appealability should be resolved in favor of the petitioner, and the severity of the penalty may be
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considered in making this determination. See Miller v. Johnson, 200 F.3d 274, 280-81 (5th Cir.),
cert. denied, 531 U.S. 849 (2000).
In this case, petitioner has not shown that any of the issues would be 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
certificate of appealability. Accordingly, a certificate of appealability will not be issued.
It is SO ORDERED.
SIGNED this 15th day of July, 2014.

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MICHAEL H. SCHNEIDER
UNITED STATES DISTRICT JUDGE

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