Tomlinson v. Director TDCJ

Filing 14

ORDER ADOPTING 2 REPORT AND RECOMMENDATIONS. Signed by District Judge Ron Clark on 2/26/18. (ljw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION
MIKE TOMLINSON

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VS.

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DIRECTOR, TDCJ-CID

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CIVIL ACTION NO. 9:16cv151

ORDER OVERRULING PETITIONER’S OBJECTIONS AND ADOPTING
THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner Mike Tomlinson, an inmate confined in the Texas Department of Criminal Justice,
Correctional Institutions Division, proceeding pro se, brought this petition for writ of habeas corpus
pursuant to 28 U.S.C. § 2254.
The court referred this matter to the Honorable Zack Hawthorn, United States Magistrate
Judge, at Beaumont, Texas, for consideration pursuant to applicable laws and orders of this court.
The Magistrate Judge recommends the petition be denied.
The court has received and considered the Report and Recommendation of United States
Magistrate Judge filed pursuant to such order, along with the record and pleadings. Petitioner filed
objections to the Report and Recommendation. This requires 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, the court concludes petitioner’s objections should be overruled.
Under the circumstances presented in this petition, due process concerns are not implicated and
prison officials were not required to afford petitioner due process at the disciplinary hearing.
Further, as the Magistrate Judge found, because there is no right to counsel in prison disciplinary
hearings, petitioner’s claims that counsel was ineffective are without merit. See Wainwright v.

Torna, 455 U.S. 586, 587-88 (1982) (when no right to counsel exists, one cannot be deprived of the
effective assistance of counsel); Enriquez v. Mitchell, 533 F.2d 275, 276 (5th Cir. 1976). Petitioner’s
claims do not contest the fact or duration of his confinement. Therefore, petitioner’s claims do not
serve as a basis for habeas corpus relief, but rather possibly can form the basis for a civil rights
action. Thus, petitioner must pursue his claims by filing an appropriate civil rights action.
In this case, it would not further the interests of justice to automatically construe petitioner’s
claims as civil rights claims. Allowing petitioner to prosecute this action based on the payment of
the $5.00 filing fee applicable to petitions for writ of habeas corpus instead of the $400.00 filing fee
applicable to civil actions would allow petitioner to circumvent the filing fee requirements of the
Prison Litigation Reform Act. See 28 U.S.C. § 1915. Accordingly, the petition should be dismissed
without prejudice to petitioner’s ability to pursue such claims in a civil action.
If petitioner wishes to pursue his claims as a civil rights action he may notify the Court of his
intention to do so and submit the $400.00 filing fee or a properly certified application to proceed in
forma pauperis within thirty (30) days of this order and the Court will reinstate this action on the
active docket as a civil rights action.
Furthermore, 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 movant 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
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showing, the movant 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. Any doubt regarding whether to grant a certificate
of appealability is resolved in favor of the movant, 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.), cert. denied,
531 U.S. 849 (2000).
Here, 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 advanced by the movant are not novel and
have been consistently resolved adversely to his position. In addition, the questions presented are
not worthy of encouragement to proceed further. Therefore, petitioner has failed to make a sufficient
showing to merit the issuance of a certificate of appealability. Accordingly, a certificate of
appealability shall not be issued.
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
recommendations.

So ORDERED and SIGNED this 26 day of February, 2018.

___________________________________
Ron Clark, United States District Judge

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