Kerley v. Stevens
Filing
37
MEMORANDUM OPINION AND ORDER granting 30 Amended MOTION for Summary Judgment with Brief in Support, denying 1 Petition for Writ of Habeas Corpus. A Certificate of Appealability is denied. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
United States District Court
Southern District of Texas
ENTERED
November 02, 2015
IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
HARRY FRANKLIN KERLEY,
TDCJ #895775,
Petitioner,
v.
WILLIAM STEPHENS, Director,
Texas Department of Criminal
Justice - Correctional
Institutions Division,
Respondent.
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§
David J. Bradley, Clerk
CIVIL ACTION NO. H-14-3491
MEMORANDUM OPINION AND ORDER
The petitioner,
state
inmate
Harry Franklin Kerley
incarcerated
in
the
Texas
(TDCJ #895775),
Department
Justice - Correctional Institutions Division
(~TDCJ").
of
is a
Criminal
Kerley has
filed a Petition for a Writ of Habeas Corpus By a Person in State
Custody under 28 U.S.C.
§
2254
(Docket Entry No. 1), challenging
the result of a prison disciplinary proceeding.
Respondent Stephens' s
Brief
in
Support
Now pending is
Amended Motion for Summary Judgment with
(Docket
Entry No.
response (Docket Entry No. 36).
administrative records,
30).
Kerley has
filed
a
After reviewing the pleadings, the
and the applicable law,
the court will
grant the respondent's amended motion and dismiss this action for
the reasons explained below.
I.
Background
Kerley is presently incarcerated as the result of a judgment
and sentence entered against him in the 339th Judicial District
Court of Harris County, Texas. 1
of
delivery
of
imprisonment. 2
heroin
and
Kerley was convicted of two counts
was
sentenced
to
seventy
years'
Kerley was later convicted in the 262nd Judicial
District Court of Harris County, Texas, of unlawfully possessing a
firearm as a felon.
3
Kerley received a ten-year prison sentence in
that case. 4
Kerley does not challenge any of his underlying convictions.
Instead,
he
challenges
the
result
of
a
prison
disciplinary
proceeding lodged against him on August 5, 2014, at the Ellis Unit
in
Huntsville,
Texas,
in
TDCJ
Case
No.
20140347143. 5
The
administrative record shows that Kerley was charged with violating
Code 16.0 of the prison disciplinary rules by possessing contraband
- "a cleartech typewriter" - that he did not own. 6
Kerley was also
charged with violating Code 10.0 of the prison disciplinary rules
by committing a felony in violation of Texas Penal Code§ 37.101 by
1
Commi tment
No. 30-2, p. 2.
2
Respondent's
Exhibit
A,
Docket
Entry
Id.
4
Inquiry,
Id.
5
TDCJ Disciplinary Report and Hearing Record
Report"), Docket Entry No. 18-2, p. 3.
6
Id.
-2-
("Disciplinary
being
in possession of
commits an offense
"a completed UCC-11
in violation of
§
Form. " 7
A person
if he
"knowingly
37.101
presents for filing or causes to be presented for filing a
financing
(2)
statement
that
the
person
knows:
contains a material false statement; or
TEX •
PENAL
felony.
CODE
§
3 7 . 1 0 1 (a) .
(1)
(3)
is
[UCC]
forged;
is groundless."
Such an offense is a
third-degree
Id.
A report of the administrative investigation reflects that
Kerley was found in possession of a typewriter without papers to
prove ownership and that he was also found in possession of a
completed UCC-11 form.
8
The UCC-11 form requested a certified copy
of a financing statement from the Texas Secretary of State's Office
for a business that Kerley reportedly owned under an assumed name. 9
It is against prison rules for TDCJ inmates to operate or establish
a
business
while
possession of
incarcerated. 10
several
bank
Kerley
routing
numbers
was
also
found
in
and correspondence
indicating that he was attempting to secure financing . 11
After
consulting with an administrative official, the charging officer
concluded
that
the
7
Id. at 4 , 12-13.
9
form
Id.
8
UCC-11
Id. at 12-13.
lOid. at 4.
11
Id. at 14, 27-29.
-3-
in
Kerley's
possession
was
fraudulent and determined that disciplinary charges were warranted
for violating Texas Penal Code
§
37.101. 12
At a disciplinary hearing held on August 6, 2014, Kerley did
not dispute that he possessed the typewriter or the UCC-11 form,
but he denied having any fraudulent intent. 13
After considering the
charging officer's testimony, as well as his report and attached
documentation, the disciplinary hearing officer found Kerley guilty
as charged of both the Code 10.0 and Code 16.0 violation. 14
As
punishment, the hearing officer restricted Kerley's recreation and
commissary
privileges
privileges
for
30
for
days,
45
and
days,
curtailed
suspended
his
his
telephone
contact
privileges for four months through December 6, 2014. 15
visitation
Kerley also
forfeited 280 days of previously earned credit for good conduct
(i.e., "good-time credit") . 16
Kerley filed grievances to challenge
his conviction, but his appeals were unsuccessful. 17
Kerley now seeks a federal writ of habeas corpus to challenge
his conviction for violating Code 10.0 of the prison disciplinary
rules.
Kerley argues that his conviction violates due process
12
Id. at 4-6, 10.
13
Id. at 3; Audio CD, Docket Entry No. 19.
14
Disciplinary Report, Docket Entry No. 18-2, p. 3.
17
Step 1 and Step 2 Offender Grievance Forms and Disciplinary
Report, Docket Entry No. 18-1, pp. 3-7.
-4-
because simple possession of a
completed UCC-11
violate Texas Penal Code§ 37.101. 18
a
felony
in violation of
Code
form does not
Arguing that he did not commit
10. 0,
Kerley asks
the
court
to
overturn his conviction and expunge it from his record. 19 Kerley
also asks for a court order directing the respondent to return
certain
items
of
personal
property
that
were
confiscated
in
connection with the disciplinary charges against him. 20
The respondent has presented an Affidavit from Natalie Isaac,
who is a
Program Supervisor V for the TDCJ Counsel Substitute
Program, showing that Kerley's conviction for violating Code 10.0
was overturned and deleted from Kerley's record on February 5,
2015. 21
Kerley's
conviction
for
possession
violation of Code 16.0 remained intact. 22
of
contraband
in
The punishment in Case
No. 20140347143 was modified to reflect a restriction on Kerley's
commissary,
recreation and telephone privileges for 4 5 days,
a
reduction in classification status from S3 to L1, a 30-day loss of
good-time
credit,
and
suspension
of
contact
visits
for
four
months. 23
18
Petition, Docket Entry No. 1, p. 6.
19
Id. at 6-7; Petitioner's Memorandum in Support of Habeas
Relief, Docket Entry No. 2, pp. 1-2.
20
Peti tioner' s Response to Respondent's Motion for
Judgment, Docket Entry No. 25, p. 2.
21
Respondent's Exhibit C, Docket Entry No. 30-4, p. 2.
22Id.
-5-
Summary
Because his conviction for violating Code 10.0 was overturned
and expunged, the respondent argues that Kerley's challenge to his
disciplinary conviction for violating Code 10. 0 is now moot. 24
The
respondent also argues that Kerley's claims about his confiscated
property concern the conditions of his confinement and are not
actionable in a habeas corpus proceeding. 25
II.
A.
Discussion
The Petition is Moot as to the Code 10.0 Violation
The United States Supreme Court has explained that a
becomes moot if it
"no longer present[s]
under Article III,
2 of the Constitution."
u.s.
1,
7
(1998).
§
Under
the
"[t] he parties must continue
outcome' of the lawsuit.'"
Id.
a
case
case or controversy
Spencer v. Kemna, 523
case-or-controversy requirement,
to have a
'personal
stake in the
(quoting Lewis v. Continental Bank
Corp., 494 U.S. 472, 477-78 (1990))
"This means that, throughout
the litigation, the plaintiff 'must have suffered, or be threatened
with, an actual injury traceable to the defendant and likely to be
redressed by a favorable judicial decision.'"
Spencer, 523 U.S. at
7 (quoting Lewis, 494 U.S. at 477).
The record confirms that Kerley's disciplinary conviction for
violating
Code
10. 0 has
been
overturned
24
and
deleted
from
his
Respondent Stephens's Amended Motion for Summary Judgment
with Brief in Support, Docket No. 30, p. 11.
25
Id. at 13.
-6-
record. 26
To the extent that Kerley seeks federal habeas corpus
relief from his conviction and punishment for violating Code 10.0
of the prison disciplinary rules,
there
is
nothing
for
this
court
his petition is moot because
to
remedy.
Therefore,
the
respondent's amended motion for summary judgment on this issue is
granted. 27
B.
Claims Concerning Conditions of Confinement
In his response to the motion for summary judgment, Kerley
contends that
is entitled to relief even though his Code 10.0
conviction has been overturned because items of personal property
were wrongfully confiscated as a
result of
against him in TDCJ Case No. 20140347143. 28
the charges
lodged
Specifically, Kerley
requests a court order directing respondent to return "all legal
material, notes, drafts, catalogs, books,
stamps, envelopes, and
all other items that were confiscated" when he was charged with
26
Respondent's Exhibit C, Docket Entry No. 30-4, p. 2.
27
The respondent also contends that Kerley cannot demonstrate
a due process violation concerning his conviction for violating
Code 16.0.
See Respondent Stephens's Amended Motion for Summary
Judgment With Brief in Support, Docket Entry No. 30, pp. 9-11.
Kerley does not contest the validity of his conviction for
violating Code 16.0. See Petition, Docket Entry No. 1, pp. 5, 6;
see also Petitioner's Memorandum in Support of Habeas Corpus
Relief, Docket Entry No. 3, pp. 1-2. Accordingly, the court need
not reach these arguments.
28
Peti tioner' s Response to Respondent's Motion for Summary
Judgment, Docket Entry No. 25, p. 2; Petitioner's Response to
Respondent's [Amended] Motion for Summary Judgment, Docket Entry
No. 36, pp. 1-3.
-7-
violating prison rules
20140347143. 29
in Case No.
Arguing that
these claims take issue with conditions of confinement and not the
result of a prison disciplinary proceeding, the respondent contends
that Kerley fails to state a claim for which habeas relief may be
granted. 30
A writ of habeas corpus provides a remedy only for prisoners
challenging the
Rodriguez,
"fact or duration"
93 S.
under 42 U.S.C.
Ct.
§
1827, 1841
of confinement.
(1973)
By contrast,
Preiser v.
an action
1983 is the appropriate legal vehicle to attack
allegedly unconstitutional conditions of confinement.
See Cook v.
Texas Dep't of Criminal Justice Transitional Planning Dep't,
F.3d 166,
§
168
(5th Cir.
1994).
In other words,
37
an action under
1983 is the appropriate remedy where a prisoner challenges "the
rules,
customs,
and
procedures
affecting
'conditions'
confinement," and not the "fact or duration of confinement."
37 F.3d at 168
Cir. 1987)).
(quoting Spina v. Aaron,
821 F.2d 1126, 1128
of
Cook,
(5th
Where there is a question about the proper vehicle,
the Fifth Circuit has adopted a "bright-line rule" for resolving
whether a claim is actionable on habeas corpus review or must be
raised in a suit under
§
1983:
"If
'a favorable determination
. . . would not automatically entitle [the prisoner] to accelerated
29Id.
30
Respondent Stephens's Amended Motion for Summary Judgment
with Brief in Support, Docket No. 30, p. 13.
-8-
release'
. the proper vehicle is a
Johnson, 112 F.3d 818,
820-21
§
1983 suit."
(5th Cir. 1997)
Carson v.
(internal citation
omitted) .
Kerley's claims regarding the confiscation of his personal
property concern conditions of confinement and do not call into
question the validity of his prison disciplinary conviction in Case
No.
20140347143.
As
such,
relief
in
his
favor
would
not
automatically result in the restoration of time credits or his
accelerated release from confinement.
Kerley's
claims
concerning
the
Under these circumstances,
confiscation
of
property must be brought in a suit under 42 U.S.C.
not actionable on federal habeas corpus review.
his
personal
1983, and are
§
The respondent's
amended motion for summary judgment on this issue will be granted.
III.
Certificate of Appealability
The habeas corpus petition filed in this case is governed by
the
AEDPA,
codified
at
28
U.S.C.
§
2253,
which
requires
a
certificate of appealability to issue before an appeal may proceed.
See Hallmark v.
Johnson,
118
F.3d 1073,
1076
(noting that actions filed under either 28 U.S.C.
require a certificate of appealability)
(5th Cir.
§
2254 or
1997)
§
2255
"This is a jurisdictional
prerequisite because the COA statute mandates
that
' [u] nless a
circuit justice or judge issues a certificate of appealability, an
appeal may not be taken to the court of appeals.
v.
Cockrell,
123
S.
Ct.
1029,
1039
-9-
(2003)
Iff
(citing
Miller-El
28
U.S.C.
§
2253(c) (1)).
requires
a
Rule 11 of the Rules Governing Section 2254 Cases
district
court
to
issue
or
deny
a
certificate
of
appealability when entering a final order that is adverse to the
petitioner.
A certificate of
petitioner
makes
"a
constitutional right,"
appealability will
substantial
28 U.S.C.
not
of
showing
issue unless
the
2253(c)(2),
§
denial
the
of
a
which requires a
petitioner to demonstrate "that reasonable jurists would find the
district court's assessment of the constitutional claims debatable
or wrong."
Tennard v.
Dretke,
124
S.
Ct.
2562,
2565
(2004)
(quoting Slack v. McDaniel, 120 S. Ct. 1595, 1604 (2000)).
Under
the controlling standard this requires a petitioner to show "that
reasonable jurists could debate whether (or, for that matter, agree
that) the petition should have been resolved in a different manner
or
that
the
issues
presented
were
encouragement to proceed further.'"
Where
denial
of
relief
is
'adequate
to
deserve
Miller-El, 123 S. Ct. at 1039.
based
on
procedural
grounds,
the
petitioner must show not only that "jurists of reason would find it
debatable whether the petition states a valid claim of the denial
of a
constitutional right,"
but also that
they
"would find it
debatable whether the district court was correct in its procedural
ruling."
Slack, 120 S. Ct. at 1604.
A district court may deny a
certificate of appealability,
sua sponte, without requiring further briefing or argument.
See
Alexander v.
For
Johnson,
211 F.3d 895,
-10-
898
(5th Cir.
2000).
reasons set forth above, the court concludes that jurists of reason
would not debate whether any procedural ruling in this case was
correct or whether the petitioner states a valid claim for relief.
Therefore, a certificate of appealability will not issue.
IV.
Conclusion and Order
Based on the foregoing, the court ORDERS as follows:
1.
Respondent Stephens's Amended Motion for Summary
Judgment (Docket Entry No. 30) is GRANTED.
2.
The Petition for a Writ of Habeas Corpus By a
Person in State Custody (Docket Entry No. 1) is
DENIED, and this action will be dismissed with
prejudice.
3.
A certificate of appealability is DENIED.
The Clerk shall provide a copy of this Memorandum Opinion and
Order to the parties.
SIGNED at Houston, Texas, on this 2nd day of November, 2015.
UNITED STATES DISTRICT JUDGE
-11-
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