Fernandez v. Director TDCJ-CID

Filing 14

MEMORANDUM ORDER ADOPTING 12 Report and Recommendations. The application for writ of habeas corpus is DISMISSED with prejudice. The Petitioner is DENIED a certificate of appealability sua sponte. Any and all other motions which may be pending in this civil action are hereby DENIED. Signed by Judge Leonard Davis on 07/15/13. (mll, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
JEREMY FERNANDEZ

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v.

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DIRECTOR, TDCJ-CID

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CIVIL ACTION NO. 6:13cv216

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
AND ENTERING FINAL JUDGMENT
The Petitioner Jeremy Fernandez, proceeding pro se, filed this application for the writ of
habeas corpus under 28 U.S.C. §2254 complaining of the legality of prison disciplinary action taken
against him during his confinement in the Texas Department of Criminal Justice, Correctional
Institutions Division. This Court ordered that the matter 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.
Fernandez states that on August 26, 2012, he received a disciplinary case charging him with
the offenses of being out of place and tampering with a locking mechanism. He was found guilty
after a hearing and received as punishment 45 days of cell and commissary restrictions, a reduction
in classification status from State Approved Trusty III to Line Class I, and the loss of 30 days of good
time credits. He acknowledged that he is not eligible for release on mandatory supervision.
The Respondent was ordered to answer the petition and did so, arguing that because
Fernandez is not eligible for release on mandatory supervision, he has not shown that the disciplinary
case effected a deprivation of any constitutionally liberty interests, The Respondent therefore argued
that Fernandez’s petition should be dismissed. Fernandez did not file a response to the answer.

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After review of the pleadings, the Magistrate Judge issued a Report recommending that the
petition be dismissed. The Magistrate Judge determined that Fernandez had failed to show that the
punishments imposed upon him as a result of the disciplinary case at issue implicated any
constitutionally protected liberty interests. See Sandin v. Conner, 115 S.Ct. 2293, 2301 (1995);
Malchi v. Thaler, 211 F.3d 953, 959 (5th Cir. 2000). The Magistrate Judge therefore recommended
that Fernandez’s petition be dismissed and that Fernandez be denied a certificate of appealability sua
sponte.
Fernandez received a copy of the Magistrate Judge’s Report on or before June 6, 2013, 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 unobjected-to proposed 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 Report of the Magistrate Judge is correct. See
United States v. Wilson, 864 F.2d 1219, 1221 (5th Cir.), cert. denied, 492 U.S. 918, 109 S.Ct. 3243
(1989) (where no objections to a Magistrate Judge’s Report are filed, the standard of review is
“clearly erroneous, abuse of discretion and contrary to law.”). It is accordingly
ORDERED that the Report of the Magistrate Judge (docket no. 12) is ADOPTED as the
opinion of the District Court. It is further
ORDERED that the above-styled application for the writ of habeas corpus is hereby
DISMISSED with prejudice. It is further
ORDERED that the Petitioner Jeremy Fernandez is hereby DENIED a certificate of
appealability sua sponte. Finally, it is

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ORDERED that any and all other motions which may be pending in this civil action are
hereby DENIED.
So ORDERED and SIGNED this 15th day of July, 2013.

__________________________________
LEONARD DAVIS
UNITED STATES DISTRICT JUDGE

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