Browder v. Davis

Filing 6

ORDER OVERRULING OBJECTIONS AND ADOPTING 3 REPORT AND RECOMMENDATIONS. Signed by Judge Ron Clark on 9/14/16. (ljw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION
WILLIAM BROWDER

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VS.

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DIRECTOR, TDCJ-CID

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CIVIL ACTION NO. 9:16cv129

ORDER OVERRULING OBJECTIONS AND ADOPTING
THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner William Browder, 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 a prison disciplinary
proceeding.
The court referred this matter to the Honorable Zack Hawthorn, United States Magistrate
Judge, for consideration pursuant to 28 U.S.C. § 636 and 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 with prejudice.
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 must therefore conduct a de novo review of the objections in
relation to the pleadings and the applicable law.
The Magistrate Judge concluded that petitioner was not entitled to due process of law
because he had no liberty interest in the punishment imposed as a result of the conviction. In his
objections, petitioner acknowledges he did not lose previously earned good conduct time credits.
However, he complains that the disciplinary conviction means that he will be incarcerated longer
before being released on parole. He also states the disciplinary conviction resulted in a demotion
to a custody classification at which he is only allowed out of his cell four hours per day. Further, he
states he has a liberty interest in being released on mandatory supervision. He asserts that as a result
of the disciplinary conviction he will earn fewer good conduct time credits, thereby delaying his

release on mandatory supervision.
Petitioner’s arguments are without merit. A Texas state inmate has no liberty interest in
being released on parole. Orellana v. Kyle, 65 F.3d 29, 31-32 (5th Cir. 1995). As a result, the fact
that his disciplinary conviction may have some effect on petitioner’s chances of being released on
parole does not entitle him to due process. Further, while the disciplinary conviction resulted in a
demotion in custody classification, an inmate has no protected liberty interest in his custody
classification. Harper v. Showers, 174 F.3d 716, 719 (5th Cir. 1999). Finally, as petitioner was
convicted before September 1, 1996, he has a liberty interest in being released on mandatory
supervision. Malchi v. Thaler, 211 F.3d 953, 957-58 (5th Cir. 2000). However, the loss of the
opportunity to earn good conduct time credits does not implicate a protected liberty interest. Luken
v. Scott, 71 F.3d 192, 193 (5th Cir. 1995).
Because petitioner did not lose previously earned good conduct time credits as a result of his
disciplinary conviction, he was not entitled to due process of law before receiving the punishment
imposed. Malchi, 211 F.3d at 958. His petition is therefore without merit.
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 that the 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 U.S.C. § 2253. The standard that must be met in order
to receive 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 (2000);
Elizalde v. Dretke, 362 F.3d 323, 328 (5th Cir. 2004). To make a substantial showing, the petitioner
is not requited to demonstrate that he would prevail on the merits. Rather, he need only 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 in the petition are worthy of encouragement to
proceed further. See Slack, 529 U.S. at 483-84. If the petition was dismissed 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 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 any of the issues raised by his claims are subject
to debate among jurists of reason. The factual and legal questions 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
Sep 14, 2016