Powell v. Thaler

Filing 16

Memorandum Opinion and Order...petition under 28 USC 2254 denied. Certificate of appealability denied. (Ordered by Judge John McBryde on 3/25/2013) (wrb)

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FOR THE NORTHERN DISTRICT OF
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CLERK, U.S.DISTRICTC0CRT
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Petitioner,

By ____-=__________

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MICHAEL A. POWELL,

'------~...-.;..-----.-.-

Deputy

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v.

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No. 4:12-CV-853-A

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RICK THALER, Director,
Texas Department of Criminal
Justice, Correctional
Institutions Division,

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Respondent.

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MEMORANDUM OPINION
and
ORDER

This is a petition for writ of habeas corpus pursuant to 28
U.S.C.

§

2254 filed by petitioner, Michael A. Powell, a state

prisoner currently incarcerated in Iowa Park, Texas, against Rick
Thaler, Director of the Texas Department of Criminal Justice,
Correctional Institutions Division (TDCJ), respondent.

After

having considered the pleadings, state court records, and relief
sought by petitioner, the court has concluded that the petition
should be denied.
I.

Factual and Procedural History

Petitioner is serving stacked 40-year sentences on his 2005
convictions for aggravated sexual assault of a child younger than
14 years of age, under

§

22.021 of the Texas Penal Code,

occurring in April 2000.

(Resp't Ans., Ex. A)

By this habeas

petition, petitioner challenges a 2012 disciplinary proceeding
conducted at the James V. Allred Unit of TDCJ, and the resultant
temporary loss of recreation and commissary privileges, 15 days
solitary confinement, and a loss of 30 days of good time.
(Disciplinary Hrg. R. at 1)

Petitioner was charged in

Disciplinary Case No. 20120290579 with assaulting a corrections
officer, a level I, code 3.3 violation.

(Id. at 2)

After

receiving notice of the charges, petitioner attended a
disciplinary hearing on July 5, 2012, with a staff
representative, or "counsel substitute," during which he pleaded
not guilty to the offense.

(Id. at I, 8)

After considering the

evidence admitted during the hearing, the disciplinary hearing
officer (DHO) found petitioner guilty of the violation.
1)

(Id. at

Petitioner filed Step 1 and Step 2 grievances contesting the

guilty finding,

to no avail.

(Disciplinary Grievance R.l)

federal petition for writ of habeas corpus followed.

II.

Issues

In four grounds, petitioner claims (1) his counsel
substitute and the (DHO) refused to allow him to represent

'The record is not paginated.

2

This

himself and presented evidence against him,

(2) no code violation

exists for "attempted assault" and the charges are
unconstitutionally vague,

(3) his punishment is unconstitutional,

and (4) prison staff have shown deliberate indifference to the
reporting officer's assault on him.

III.

(Pet. at 6-7)

Rule 5 Statement

Respondent believes the petition is not subject to the
limitations or successive-petition bar but asserts petitioner
failed to present claims (2) through (4) in his Step 1 and Step 2
grievances and, thus, the claims were not exhausted under TDCJ's
administrative process.

(Resp't Ans. at 7)

A court may deny a

petition on the merits notwithstanding a petitioner's failure to
exhaust under

§

2254(b) (2).

IV.

Discussion

Prisoners charged with rule violations are entitled to
certain procedural due process requirements under the Fourteenth
Amendment when the disciplinary action results in a sanction that
will impinge upon a liberty interest.
U.S. 472, 484

(1995).

See Sandin v. Conner, 515

The minimum amount of procedural due

process required for prison inmates under these circumstances
includes:
charges;

(1) advance written notice of the disciplinary
(2) an opportunity to call witnesses and present
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documentary evidence when the presentation is not unduly
hazardous to institutional safety and correctional goals; and (3)
a written statement by the fact finder of the evidence relied
upon and the reason for the disciplinary action.

See Wolff v.

McDonnell, 418 U.S. 539, 563-67 (1974); Morrissey v. Brewer, 408

U.s. 471, 488 (1972).
A Texas prisoner who is eligible for release to mandatory
supervision has a protected liberty interest in the loss of good
time credits, and TDCJ must accord the inmate minimal procedural
due process before depriving him of any previously earned good
time credits through administrative or disciplinary proceedings. 2

Teague v. Quarterman, 482 F.3d 769, 776-81 (5 th Cir. 2007);
Malchi v. Thaler, 211 F.3d 953, 957-58 (5 th Cir. 2000); Henson v.
u.S. Bureau of Prisons, 213 F.3d 897, 898 (5 th Cir. 2000).

Thus,

in order to challenge a prison disciplinary proceeding by way of
a federal petition for a writ of habeas corpus, a petitioner
must, at a minimum, be eligible for mandatory supervised release
and have received a punishment sanction which included forfeiture
of previously accrued good time credits.

Mal chi , 211 F.3d at

2It is well settled that Texas prisoners have no protected
liberty interest in parole in Texas.
Johnson v. Rodriguez, 110
F . 3 d 299, 308 ( 5 th Ci r. 1997).
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958.
As stated by respondent, petitioner is not eligible for
release on mandatory supervision.

The mandatory supervision

statute in effect when he committed his offenses, and now,
provides that a prisoner may not be released to mandatory
supervision if the prisoner is serving a sentence for "a first
degree felony under Section 22.021, Penal Code."

See Act of May

10, 1999, R.S., 76 th Leg., ch. 62, § 10.22, 1999 Tex. Gen. Laws
127, 329 (currently TEX. GOV'T CODE ANN. § 508.149(a) (8)

(West

2012)) .
Since petitioner is ineligible for mandatory supervision
based on his holding convictions, the loss of good time credits
in his disciplinary case does not implicate a protected liberty
interest.

Kimbrell v. Cockrell, 311 F.3d 361, 362 (5 th Cir.

2002) i Malchi, 211 F.3d at 956-58.

Nor do recreation and

commissary restrictions or solitary confinement implicate due
process concerns.

See Sandin, 515 U.S. at 486 (confinement in

administrative segregation)
(5 th Cir. 1997)
restriction).

i

Madison v. Parker, 104 F.3d 765, 768

(loss of commissary privileges and cell
Absent some constitutionally protected liberty

interest, due process does not attach to a prison disciplinary
proceeding.

Therefore, petitioner's claims (1) through (3) do

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not present a basis for federal habeas relief.
Petitioner's fourth claim does not challenge the length or
duration of his sentences, and is not properly maintained in a
habeas corpus petition.

Preiser, 411 U.S. at 493.

claim should be pursued in a

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Rather, this

1983 civil rights action.

For the reasons discussed herein,
The court ORDERS the petition of petitioner for a writ of
habeas corpus pursuant to 28 U.S.C.

§

2254 be, and is hereby,

denied.
Pursuant to Rule 22(b) of the Federal Rules of Appellate
Procedure, Rule 11(a) of the Rules Governing Section 2254 Cases
in the United States District Court, and 28 U.S.C.

§

2253(c), for

the reasons discussed herein, the court further ORDERS that a
certificate of appealability be, and is hereby, denied, as
petitioner has not made a substantial showing of the denial of a
constitutional right.

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SIGNED March _________________ , 2013.

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