Boone v. Stephens

Filing 66

ORDER ADOPTING MEMORANDUM AND RECOMMENDATION re: 41 MOTION for Summary Judgment with Brief in Support, 47 Memorandum and Recommendations (Signed by Judge Nelva Gonzales Ramos). This action is dismissed with Prejudice. Certificate of Appealability is denied. Parties notified.(amireles, 2)

United States District Court
Southern District of Texas

ENTERED
May 31, 2016
IN THE UNITED STATES DISTRICT COURT
David J. Bradley, Clerk
FOR THE SOUTHERN DISTRICT OF TEXAS
CORPUS CHRISTI DIVISION
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THOMAS EARLY BOONE,
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Petitioner,
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v.
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CIVIL CASE NO. 2:15-cv-184
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WILLIAM STEPHENS,
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Respondent.
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_________________________________ §

ORDER ADOPTING MEMORANDUM AND RECOMMENDATION
Petitioner filed this habeas corpus action alleging the denial of his due process
rights in the context of a disciplinary conviction. Before the Court is Respondent’s
motion for summary judgment (D.E. 41) seeking dismissal because the Texas
Department of Criminal Justice-Correctional Institutions Division (TDCJ) afforded
Petitioner all due process rights to which he was entitled.
On November 19, 2015, United States Magistrate Judge B. Janice Ellington issued
her Memorandum and Recommendation (M&R, D.E. 47), recommending that
Respondent’s motion be granted, Petitioner’s petition for habeas corpus be denied, and
any request for a Certificate of Appealability be denied. Petitioner timely filed his
objections (D.E. 48) on November 27, 2015. On December 2, 2015, Petitioner filed
supplemental objections (D.E. 49), which this Court deemed timely. D.E. 54. Both sets
of objections address the same subject matter, set out and discussed below.

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First, Petitioner objects to the M&R’s finding that there was no constitutional
violation based on inadequate notice of the disciplinary charges. Petitioner asserts that
his due process rights include a notice of hearing that contains a factual discussion of the
events giving rise to the charge and a list of witnesses. Petitioner claims that this
information is necessary so that he can marshal his evidence. Petitioner relies on Wolff v.
McDonnell, 418 U.S. 539 (1974), but Wolff requires only that a prisoner receive notice of
the charges against him. Wolff did not address factual recitations or witness lists. While
the TDCJ handbook may require the additional information Petitioner seeks, the failure to
follow policies or procedure does not constitute a violation of due process if due process
was nonetheless given. D.E. 47, p. 7 (citing Myers v. Klevenhagen, 97 F.3d 91, 94 (5th
Cir. 1996)). The Court finds that there was no due process violation regarding the notice.
Thus, Petitioner’s first objection is OVERRULED.
Petitioner next objects to the Magistrate Judge’s finding that he must show harm
for his claim to be successful. D.E. 48, p. 5. In discussing the notice requirement, the
Magistrate Judge noted, “Petitioner has not shown how any inadequacy of the notice
prejudiced him and a habeas petition cannot be granted absent a showing of prejudice.”
D.E. 47, p. 8. See Mascitti v. Thaler, 416 Fed. App’x. 411, 415 (5th Cir. 2011); Hallmark
v. Johnson, 118 F.3d 1073, 1080 (5th Cir. 1997); and Simpson v. Ortiz, 995 F.2d 606, 609
(5th Cir. 1993). Petitioner’s objection is without merit and it is OVERRULED.
Petitioner next objects to the M&R’s failure to find a constitutional violation when
he was denied the right to attend the hearing. Petitioner appears to take issue with the
Magistrate Judge’s finding that he chose not to attend the disciplinary hearing (D.E. 47,
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p. 8) and that the hearing took place at the McConnell Unit (D.E. 48, p. 6).1 Petitioner
states that he told counsel substitute that he wanted to attend the hearing and asked for a
stay or continuance. D.E. 48, pp. 3–4. However, the 147-MA form (D.E. 40-2) indicates
that Petitioner declined to attend the hearing. Although disciplinary hearings may be
continued or recessed for a reasonable period and for good cause, Petitioner has not
demonstrated that he requested a continuance.

Accordingly, his objection is

OVERRULED.
Petitioner asks the Court to consider his responses to the motion for summary
judgment. However, objections to M&Rs must be specific, and incorporating responses
by reference does not meet the specificity requirements of 28 U.S.C. § 636. E.g., Turner
v. Stephens, No. 2:15-CV-00379, 2016 WL 705208, at *1 (S.D. Tex. Feb. 23, 2016)
(citing 4 B's Realty 1530 CR39, LLC v. Toscano, 818 F. Supp. 2d 654, 659 (E.D.N.Y.
2011)). Thus, the Court treats Petitioner’s reference to his responses to the motion for
summary judgment as general objections, and OVERRULES them.
Petitioner complains that the M&R does not properly apply Sandin v. Conner, 515
U.S. 472 (1995), or applies it out of context. Petitioner argues that the Magistrate
Judge’s reliance on Sandin is misplaced because the disciplinary hearing in Sandin did
not result in the loss of good time credits or a demotion in “time-earning classification”
as it did in his case. D.E. 48, p. 8. The Magistrate Judge cited Sandin in discussing the
limited instances in which an inmate can make a claim that a liberty interest has been
taken without due process.
1

D.E.47, p. 4-5.

The M&R did not rely on Sandin to

The hearing took place at the Ellis Unit, but this error in the M&R did not affect the analysis.

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determine that Petitioner’s loss of line class and good time claims are without merit.
Petitioner’s objection is OVERRULED.
Petitioner objects to the Magistrate Judge’s reference in footnote two (D.E. 47, p.
2) to his additional ten-year sentence for a 1994 conviction of possessing a deadly
weapon in a penal institution. D.E. 48, p. 9; D.E. 49, pp.1–2. The Magistrate Judge
stated that the ten-year sentence is to be served after completion of the sixty-year
sentence, but Petitioner argues that the ten-year sentence has already been served. The
ten-year sentence is not the subject of the grievances (D.E. 1-1) before this Court, and
this Court thus declines to address it. Because the Magistrate Judge’s reference to the
consecutive ten-year sentence has no bearing on the result in this case, Petitioner’s
objection is OVERRULED.
Petitioner objects to the Magistrate Judge’s statement that he is challenging
various parole board procedures, rules, and regulations. D.E. 48, pp. 9–10. Petitioner
claims that he is, instead, challenging a parole statute and a particular parole board
decision from 1991. Petitioner’s objection is successive in that his complaint regarding
the parole board decision and the length of his sentence was presented, or could have
been presented, in the habeas action filed in 1993 and disposed of by Judge Rosenthal in
Boone v. Collins, No. H-93-777, *5-6 (S.D. Tex. March 16, 1994).2 28 U.S.C. § 2244(a).
At any rate, he has not demonstrated that he exhausted administrative remedies and

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See also, Civil Actions H-04-cv-00379 and H-07-cv-02610 filed by Boone to challenge the calculation of his
sentence and continued incarceration. The jurisdictional restrictions upon successive habeas applications apply even
to claims not presented in the prior petition. See Graham v. Johnson, 168 F.3d 762, 774 (5th Cir. 1999) (“[A]n
application filed after a previous application was fully adjudicated on the merits is a second or successive
application within the meaning of 28 U.S.C. § 2244(b), even if it contains claims never before raised.”).

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brought the issue timely in this action, which is directed to complaints regarding his
disciplinary conviction.
In a second related challenge, Petitioner argues that § 498.004 of the Texas
Government Code provides the TDCJ the power and discretion to restore good conduct
time. Because the TDCJ adopted a 1993 directive that wrongfully limited that discretion,
he argues that he is entitled to the restoration of all of his forfeited good conduct time.
Petitioner has presented this issue in a previous habeas petition and is consequently
barred from asserting it now. See Boone v. Quarterman, 2008 U.S. Dist. LEXIS 66234
(S.D. Tex. Aug. 27, 2008); 28 U.S.C. § 2244. And his claim is foreclosed by Hallmark v.
Johnson, 118 F.3d 1073 (5th Cir. 1997) (no protected liberty interest in restoration of
good time credits which were forfeited due to disciplinary violation, and state directive
eliminating correction official's discretion to restore such credits thus did not deprive
prisoners of due process and did not violate constitutional ex post facto prohibition). For
these reasons, Petitioner’s objections regarding parole rules or TDCJ’s discretion
regarding good time are OVERRULED.
Petitioner next objects to the Magistrate Judge’s finding that the above claims
regarding parole and restoration of good time must be brought in a § 1983 action, rather
than this habeas action (D.E. 47, pp. 8-9). This Court has already determined that these
claims are precluded because Petitioner has not exhausted administrative remedies, the
claims are time-barred, jurisdiction is precluded under the statutory bar of second or
successive writs and/or the claims are without merit. 28 U.S.C. §§ 2244, 2254. Thus,
Petitioner’s objection is moot and is OVERRULED.
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Finally, Petitioner objects to the Magistrate Judge’s statement that he does not
challenge his holding conviction in his petition, but challenges the results of a
disciplinary hearing. (D.E. 47, p. 2). Approximately four and a half months after he filed
his habeas petition, Petitioner filed a Special Plea3 (D.E. 36) and a letter requesting
copies of the files from his prior habeas corpus actions filed in the Houston Division of
the Southern District of Texas (D.E. 35). Petitioner asserts that he is challenging his
holding conviction, but Petitioner did not seek leave to amend his habeas petition as
required by Federal Rules of Civil Procedure 15(a)(2).

See 28 U.S.C. § 2242

(incorporating the rules of civil procedure for amendments and supplementations). While
leave to amend is ordinarily freely given, it is appropriately denied in instances such as
undue delay, bad faith or dilatory motive on the part of the movant, repeated failure to
cure deficiencies by amendments previously allowed, undue prejudice to the opposing
party by virtue of allowance of the amendment, and futility of amendment. Foman v.
Davis, 371 U.S. 178, 182 (1962). In this instance, the proposed amendment would be
futile as the issues sought to be raised are not capable of adjudication due to being
unexhausted, time-barred, and/or successive. 28 U.S.C. §§ 2244, 2245. Petitioner’s last
objection is OVERRULED.
Having reviewed the findings of fact, conclusions of law, and recommendations
set forth in the Magistrate Judge’s M&R (D.E. 47), as well as Petitioner’s objections, and
all other relevant documents in the record, and having made a de novo disposition of the
3

“Special Plea in Want of The Courts Jurisdictional Assessment in the Matter of Previous Attempts Within The
Courts Southern District to Have Five Sec 2254 Claims Entertained on the Merits All of Which Arise Out of the
Same State Court Process in State Cause No. 278834, Boone v. State 629 S.W. 2d 786 (14th Dist. 1981)”

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portions of the Magistrate Judge’s M&R to which the objections were specifically
directed, this Court OVERRULES Petitioner’s objections and ADOPTS as its own the
findings and conclusions of the Magistrate Judge.

Accordingly, this action is

DISMISSED WITH PREJUDICE. In the event that Petitioner seeks a Certificate of
Appealability, the request is DENIED.
ORDERED this 31st day of May, 2016.
___________________________________
NELVA GONZALES RAMOS
UNITED STATES DISTRICT JUDGE

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