Smith v. Director, TDCJ-CID

Filing 8

ORDER ADOPTING 6 Report and Recommendations. The application for writ of habeas corpus is DISMISSED with prejudice. Petr is DENIED a certificate of appealability sua sponte. Any and all motions which may be pending in this action are hereby DENIED. Signed by Judge Leonard Davis on 12/30/09. cc:petr 12-30-09 (mll, )

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS TYLER DIVISION LaROYCE SMITH v. DIRECTOR, TDCJ-CID § § § CIVIL ACTION NO. 6:09cv254

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION OF THE UNITED STATES MAGISTRATE JUDGE AND ENTERING FINAL JUDGMENT The Petitioner LaRoyce Smith, proceeding pro se, filed this application for the writ of habeas corpus under 28 U.S.C. §2254 complaining of disciplinary action taken against him during his confinement in TDCJ-CID. This Court ordered that the case be referred to the United States Magistrate Judge pursuant to 28 U.S.C. §636(b)(1) and (3) and the Amended Order for the Adoption of Local Rules for the Assignment of Duties to United States Magistrate Judges. Smith says that he was disciplined for threatening to inflict harm on an officer, for which he received 45 days of cell and commissary restrictions, eight days of solitary confinement, reduction in classification status from Line Class I to Line Class III, and reduction in custody status from minimum to medium custody. Smith did not lose any good time as a result of the disciplinary case, and is not eligible for release on mandatory supervision. After review of the pleadings, the Magistrate Judge issued a Report recommending that the petition be dismissed with prejudice and that Smith be denied a certificate of appealability sua sponte. The Magistrate Judge concluded that Smith failed to show the violation of a constitutionally protected liberty interest. See Malchi v. Thaler, 211 F.3d 953, 959 (5th Cir. 2000). Smith received a copy of this Report on November 17, 2009, but filed no objections thereto; accordingly, he is barred from de novo review by the district judge of those findings, conclusions, and recommendations and, except upon grounds of plain error, from appellate review of the unobjected1

to factual findings and legal conclusions accepted and adopted by the district court. Douglass v. United Services Automobile Association, 79 F.3d 1415, 1430 (5th Cir. 1996) (en banc). The Court has reviewed the pleadings in this cause and the Report of the Magistrate Judge. Upon such review, the Court has determined that the Magistrate Judge's Report is correct. It is accordingly ORDERED that the Report of the Magistrate Judge is ADOPTED as the opinion of the District Court. It is further ORDERED that the above-styled application for the writ of habeas corpus be and hereby is DISMISSED with prejudice. It is further ORDERED that the Petitioner LaRoyce Smith is hereby DENIED a certificate of appealability sua sponte. Finally, it is ORDERED that any and all motions which may be pending in this action are hereby DENIED. So ORDERED and SIGNED this 30th day of December, 2009.

__________________________________ LEONARD DAVIS UNITED STATES DISTRICT JUDGE

2