Perez v. TDCJ

Filing 6

MEMORANDUM ORDER OVERRULING PETITIONER'S OBJECTION AND ADOPTING THE MAGISTRATE REPORT AND RECOMMENDATIONS. Signed by Judge Robert W. Schroeder, III on 8/4/2015. (ch, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TEXARKANA DIVISION
JULIO PEREZ, JR.

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VS.

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DIRECTOR, TDCJ-CID

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CIVIL ACTION NO. 5:15-CV-75

MEMORANDUM ORDER OVERRULING PETITIONER’S OBJECTIONS AND ADOPTING
THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner Julio Perez, Jr., 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.
The Court ordered that this matter be referred to the Honorable Caroline Craven, United
States Magistrate Judge, for consideration pursuant to applicable laws and orders of this Court. The
magistrate judge has submitted a Report and Recommendation of United States Magistrate Judge
recommending 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 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 the
objections are without merit.
Petitioner alleges he was denied due process because: (1) he was excluded from the
disciplinary hearings; and (2) prison officials failed to follow prison procedures for reporting the

disciplinary infractions. 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). In this case, the magistrate judge found petitioner was not entitled
to due process, because he is ineligible for release on mandatory supervision. Because the
disciplinary sanctions imposed in this case do not impose upon a liberty interest, both of petitioner’s
due process claims lack merit.
In his objections, petitioner acknowledges that he is ineligible for mandatory supervision, but
argues the disciplinary conviction could affect future parole determinations. This argument lacks
merit. “Texas law does not create a liberty interest in parole that is protected by the Due Process
Clause.” Allison v. Kyle, 66 F. 3d 71, 74 (5th Cir. 1995). A potential delay in parole does not
support a constitutional claim because there is no constitutional expectation of release on parole in
Texas. Malchi, 211 F.3d at 957.
Petitioner contends prison officials violated prison policies by failing to properly report the
disciplinary infractions and by excluding him from the disciplinary hearings. However, the failure
of prison officials to follow prison policies does not rise to the level of a constitutional violation.
McFaul v. Valenzuela, 684 F.3d 564, 579 (5th Cir. 2012).
Finally, petitioner requests an evidentiary hearing. Because there are no material facts in
dispute, an evidentiary hearing is not necessary in this case.
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Additionally, in this case, 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). If the petition was denied 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 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.
2000).
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

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not worthy of encouragement to proceed further. Petitioner has failed to make a sufficient showing
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to merit the issuance of a certificate of appealability.
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
recommendation. A certificate of appealability will not be issued.
SIGNED this 4th day of August, 2015.

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ROBERT W. SCHROEDER III
UNITED STATES DISTRICT JUDGE

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