Fischman v. Director TDCJ

Filing 12

ORDER overruling petitioner's objections and adopting the magistrate judge's 4 Report and Recommendation. A certificate of appealability will not be issued. Signed by Judge Ron Clark on 7/8/2013. (bjc)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION
ROBERT ALLEN FISCHMAN

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VS.

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DIRECTOR, TDCJ-CID

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CIVIL ACTION NO. 9:13-CV-38

ORDER OVERRULING PETITIONER’S OBJECTIONS AND ADOPTING
THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner Robert Allen Fischman, 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. Petitioner challenged the constitutionality of a disciplinary proceeding.
The Court ordered that this matter be referred to the Honorable Zack Hawthorn, 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.
The Magistrate Judge recommends denying the petition.
The Court has received and considered the Report and Recommendation of United States
Magistrate Judge, along with the record and the pleadings. Petitioner filed objections to the
Magistrate Judge’s 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). The Magistrate Judge found that petitioner did not
have a liberty interest at stake in the disciplinary proceeding because he is not eligible for mandatory
supervision. In his objections, petitioner states that he was eligible for release on mandatory

supervision after serving twenty years of his life sentence. Respondent was ordered to show cause
why relief should not be granted, and petitioner has filed a reply to the respondent’s answer.
The Texas Court of Criminal Appeals has considered this issue and determined that inmates
sentenced to life imprisonment are not eligible for release on mandatory supervision. Ex parte
Franks, 71 S.W.3d 327 (Tex. Crim. App. 2001). Federal courts do not review a state’s interpretation
of its own laws. Arnold v. Cockrell, 306 F.3d 277, 279 (5th Cir. 2002). Federal courts must accept
the interpretation of state law provided by the state’s highest court. Id. Because petitioner is subject
to a life sentence, he is not eligible for release under the Texas mandatory supervision statute. Id.
After careful consideration of all the pleadings and the relevant case law, the Court concludes that
petitioner’s objections lack merit.
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
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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).
Here, the petitioner has not shown that any of the issues raised by his claims are subject to
debate among jurists of reason, or that a procedural ruling was incorrect. In addition, the questions
presented are not worthy of encouragement to proceed further. Therefore, the petitioner has failed
to make a sufficient showing 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.

So ORDERED and SIGNED this 8 day of July, 2013.

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Ron Clark, United States District Judge

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