Cearley v. Director TDCJ

Filing 7

ORDER OVERRULING OBJECTIONS AND ADOPTING 3 REPORT AND RECOMMENDATIONS. Signed by Judge Ron Clark on 4/16/17. (ljw, )

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF TEXAS
LUFKIN DIVISION
CHRISTOPHER WAYNE CEARLEY

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VS.

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DIRECTOR, TDCJ-CID

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CIVIL ACTION NO. 9:16cv209

ORDER OVERRULING OBJECTIONS AND ADOPTING
THE MAGISTRATE JUDGE’S REPORT AND RECOMMENDATION
Petitioner Christopher Wayne Cearley, 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 Keith F. Giblin, United States Magistrate
Judge, at Beaumont, Texas, 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.
Petitioner did not lose previously earned good conduct time credits as a result of his
disciplinary conviction. As a result, the Magistrate Judge, relying on Sandin v. Conner, 515 U.S. 472
(1995), and Orlenna v. Kyle, 65 F.3d 29 (5th Cir. 1995), concluded petitioner was not entitled to due
process of law before receiving the punishment imposed as a result of the disciplinary conviction.
In his objections, petitioner contends he should be entitled to due process because his disciplinary
conviction will be held against him when he is considered for release on parole. However, the effect
a prison disciplinary conviction might have on parole consideration does not implicate a
constitutionally protected liberty interest because Texas prisoners have no constitutional right or

expectancy in being released on parole. Johnson v. Rodriguez, 110 F.3d 299, 308 (5th Cir. 1997);
Allison v. Kyle, 66 F.3d 71, 74 (5th Cir. 1995). As a result, petitioner was not entitled to due process
of law in connection with his disciplinary conviction.
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 this 16th day of April, 2017.