Kennedy v. Stephens

Filing 36

ORDER OVERRULING OBJECTIONS AND ADOPTING 33 REPORT AND RECOMMENDATIONS. Signed by Judge Ron Clark on 3/6/17. (ljw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION
SAMUEL MARK KENNEDY

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VS.

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DIRECTOR, TDCJ-CID

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CIVIL ACTION NO. 9:15-CV-122

ORDER OVERRULING PETITIONER’S OBJECTIONS AND ADOPTING
THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner Samuel Mark Kennedy, a prisoner confined at the Wynne Unit of the Texas
Department of Criminal Justice, Correctional Institutions Division, brought this petition for writ of
habeas corpus pursuant to 28 U.S.C. § 2254. The 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. The 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). After careful consideration of all the pleadings and
the relevant case law, the court concludes that the petitioner’s objections lack merit. The petitioner
contends that he should not have been found guilty of a prison disciplinary infraction because the

State chose not to pursue criminal charges. However, prison disciplinary proceedings are not the
same as a criminal prosecution, and the petitioner does not have the same rights in a disciplinary
proceeding as in a criminal proceeding. Wolff v. McDonnell, 418 U.S. 539, 556 (1974). The
petitioner received the due process protections guaranteed by Wolff, and there was sufficient
evidence to support the guilty finding. Therefore, the petitioner is not entitled to relief.
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
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).
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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, the petitioner’s objections (document no. 34) are OVERRULED. The findings
of fact and conclusions of law of the Magistrate Judge are correct, and the report of the Magistrate
Judge (document no. 33) 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 6 day of March, 2017.

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Ron Clark, United States District Judge

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