Smith v. Director, TDCJ-CID

Filing 11

MEMORANDUM ORDER adopting 9 Report and Recommendation. Ordered that the Petitioner Alletroy Smith is denied a certificate of appealability sua sponte. Ordered that any and all motions which may be pending in this action are hereby denied. Signed by Judge Ron Clark on 10/11/2016. (bjc, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
TYLER DIVISION
ALLETROY SMITH

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v.

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DIRECTOR, TDCJ-CID

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CIVIL ACTION NO. 6:15cv908

MEMORANDUM ADOPTING REPORT AND RECOMMENDATION
OF THE UNITED STATES MAGISTRATE JUDGE
AND ENTERING FINAL JUDGMENT
The Petitioner Alletroy Smith, 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.
Smith was convicted of threatening to inflict harm on an officer and failing or refusing to
obey an order. As punishment, he received a reduction in classification status from State Approvde
Trusty IV to Line Class II, 45 days of cell and commissary restrictions, 45 days of telephone
restrictions, 15 days of solitary confinement, and the loss of 360 days of good time credits. Smith
acknowledges that he is not eligible for release on mandatory supervision.
After review of the pleadings, the Magistrate Judge issued a Report concluding that Smith
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, 515 U.S. 472, 483,
115 S.Ct. 2293, 2300, 132 L.Ed.2d 418 (1995); Malchi v. Thaler, 211 F.3d 953, 959 (5th Cir. 2000).

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The Magistrate Judge therefore recommended that the petition be dismissed and that Smith be
denied a certificate of appealability sua sponte.
Smith received a copy of the Magistrate Judge’s Report 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. 9) 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 DISMISSED
WITH PREJUDICE. It is further
ORDERED that the Petitioner Alletroy Smith is 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 11 day of October, 2016.

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Ron Clark, United States District Judge

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