Conway v. Dir TDCJ

Filing 5

ORDER ADOPTING REPORT AND RECOMMENDATIONS for 2 Report and Recommendations. Signed by Judge Michael H. Schneider on 10/2/9/13. (bas, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TEXARKANA DIVISION
JUSTIN CONWAY

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VS.

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DIRECTOR, TDCJ-CID

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CIVIL ACTION NO. 5:13cv84

MEMORANDUM ORDER OVERRULING PETITIONER’S OBJECTIONS AND
ADOPTING THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner Justin Conway, an inmate confined in the Texas Department of Criminal Justice
Correctional Institutions Division, 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 Caroline M. Craven, United States Magistrate
Judge, at Texarkana, Texas, for consideration pursuant to applicable laws and orders of this Court.
The Magistrate Judge recommends the petition for writ of habeas corpus should 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, pleadings and all available
evidence. Petitioner filed objections to the magistrate judge’s Report and Recommendation. This
requires 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 should be overruled.
As the magistrate judge determined, petitioner has failed to present grounds warranting relief
pursuant to federal habeas corpus review. A reduction in time-earning classification or a change in
custody status does not implicate a liberty interest protected by the Due Process Clause because the

effect of those classifications on a prisoner’s ultimate release date is too speculative. Malchi v.
Thaler, 211 F.3d 953, 958-59 (5th Cir. 2000); Luken v. Scott, 71 F.3d 192, 193 (5th Cir. 1995).
Additionally, the information provided in the written incident report and the testimony at the hearing
was sufficient to satisfy the “some evidence” standard. See Hudson v. Johnson, 242 F.3d 534, 53637 (5th Cir. 2001).
Furthermore, 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 movant 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 movant 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 movant, 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, 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 movant are not novel and
have been consistently resolved adversely to his position. In addition, the questions presented are
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not worthy of encouragement to proceed further. Therefore, petitioner has failed to make a sufficient
showing to merit the issuance of a certificate of appealability. Accordingly, a certificate of
appealability shall not be issued.
ORDER

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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.
It is SO ORDERED.
SIGNED this 29th day of October, 2013.

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MICHAEL H. SCHNEIDER
UNITED STATES DISTRICT JUDGE

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