Coleman v. Director TDCJ

Filing 7

ORDER overruling objections and adopting the magistrate judge's 4 Report and Recommendation. Signed by Judge Ron Clark on 1/22/2014. (bjc)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION
DESMOND COLEMAN

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VS.

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DIRECTOR, TDCJ-CID

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CIVIL ACTION NO. 9:13cv96

ORDER OVERRULING OBJECTIONS AND ADOPTING
THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner Desmond Coleman, an inmate confined within the Texas Department of
Criminal Justice, Correctional Institutions Division, proceeding pro se, filed the above-styled
petition for writ of habeas corpus pursuant to 28 U.S.C. § 2254. Petitioner challenges two prison
disciplinary convictions.
The court previously referred this matter to the Honorable Zack Hawthorn, United States
Magistrate Judge, at Beaumont, Texas, for consideration pursuant to 28 U.S.C. § 636 and the
applicable orders of this Court. The Magistrate Judge has submitted a Report and
Recommendation of United States Magistrate Judge concerning this matter. The Magistrate
Judge recommends the petition be denied.
The court has received and considered the Report and Recommendation of United States
Magistrate Judge, along with the record and pleadings. Petitioner filed objections to the Report
and Recommendation.
The court has conducted a de novo review of the objections. After careful consideration,
the court is of the opinion that the objections are without merit. Because the punishment
imposed as a result of the disciplinary convictions will not have a direct effect on the fact or
duration of petitioner’s confinement, he may not challenge the disciplinary convictions in a
petition for writ of habeas corpus. Petitioner contends his disciplinary convictions will extend
the time he spends in prison because they will cause him to be automatically set off from
consideration for release on parole. However, even if it could be concluded that this fact could
make petitioner’s challenge to the disciplinary convictions cognizable in a habeas proceeding, he

would still not be entitled to relief. An inmate only has a right to due process of law in
connection with a prison disciplinary proceeding if the sanction imposed implicates a protected
liberty interest. A Texas inmate’s interest in release on parole is too speculative to give rise to a
protected liberty interest because an inmate has no constitutional expectancy to release on
parole. Malchi v. Thaler, 211 F.3d 953, 957 (5th Cir. 2000) (“any delay in [a petitioner’s]
consideration for release on parole cannot support a constitutional claim”). 1
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 as the opinion of the court. A final judgment shall be entered in accordance with
the recommendation of the Magistrate Judge.
In addition, the court is of the opinion petitioner is not entitled to a certificate of
appealability. An appeal from a judgment denying federal habeas relief may not proceed unless
a judge issues a certificate of appealability. See 28 U.S.C. § 2253. The standard for a certificate
of appealability 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; Elizalde v. Dretke, 362 F.3d
323, 328 (5th Cir. 2004). To make a substantial showing, the petitioner need not demonstrate
that he would 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. Any doubt regarding whether to grant a certificate of appealability should be 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).
In this case, the petitioner has not shown that the issue of whether his challenge to his
disciplinary convictions may be pursued in a writ of habeas corpus is subject to debate among
1
The court notes that as the punishment imposed as a result of the disciplinary convictions included a fine,
petitioner could conceivably challenge the disciplinary convictions by filing a civil rights action. The denial of this
petition is without prejudice to any civil rights action petitioner may choose to file.

jurists of reason. The factual and legal issues raised by petitioner have been consistently resolved
adversely to his position and the questions presented are not worthy of encouragement to proceed
further. As a result, a certificate of appealability shall not issue in this matter.
So ORDERED and SIGNED this 22 day of January, 2014.

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Ron Clark, United States District Judge