Jenkins v. Stephens

Filing 3

MEMORANDUM AND ORDER. Jenkins 1 petition for a writ of habeas corpus is dismissed without prejudice. No certificate of appealability shall issue. Case terminated on April 27, 2016.(Signed by Judge Kenneth M. Hoyt) Parties notified.(mmiller, 4)

United States District Court
Southern District of Texas

ENTERED
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
JOSEPH LEON JENKINS,

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Petitioner,
VS.
WILLIAM STEPHENS,
Respondent.

April 27, 2016
David J. Bradley, Clerk

CIVIL ACTION NO. 4:16-CV-1109

MEMORANDUM AND ORDER
Petitioner Joseph Leon Jenkins filed a petition for a writ of habeas corpus. The petition
challenges the results of a prison disciplinary hearing.
I.

Background
Jenkins was found guilty in a prison disciplinary hearing on October 27, 2015. He

received a reduction in line class from S2 Trusty to S4, and loss of 30 days of good time credit.
Petition at 5. Jenkins contends that the disciplinary hearing violated his rights under the
Fourteenth Amendment. He asks this Court to order restoration of his good time credit and line
class.
II.

Analysis
A.

Preliminary Review

Rule 4 of the Rules Governing Habeas Corpus Cases under Section 2254 requires a judge
to “promptly examine” a newly filed petition. The rule states, in part: “If it plainly appears from
the petition and any attached exhibits that the petitioner is not entitled to relief in the district
court, the judge must dismiss the petition . . . .”

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B.

Reduction in Time-Earning Classification

The reduction in Jenkins’ time-earning classification is not cognizable in habeas corpus.
While reduced time earning could possibly delay Jenkins’ release from custody, it will not
inevitably do so. “If ‘a favorable determination . . . would not automatically entitle [the prisoner]
to accelerated release,’ Orellana v. Kyle, 65 F.3d 29, 31 (5th Cir.1995) (per curiam), cert. denied,
516 U.S. 1059, 116 S.Ct. 736, 133 L.Ed.2d 686 (1996), the proper vehicle is a § 1983 suit.”
Carson v. Johnson, 112 F.3d 818, 820©21 (5th Cir. 1997).
The Fifth Circuit has observed that the Texas legislature explicitly declined to create a
right to good conduct time. Malchi v. Thaler, 211 F.3d 953, 959 (5th Cir. 2000). Moreover,
there is no guarantee that a prisoner will earn the maximum possible good time credit, or that he
will not have earned credits later revoked. Therefore, the effect of good time credit on future
release is too speculative and attenuated. “[T]he timing of [petitioner]'s release is too speculative
to afford him a constitutionally cognizable claim to the ‘right’ to a particular time-earning status .
. . ..” Id. Because Jenkins has no protected liberty interest in any specific time-earning status, his
reduction in time-earning status fails to identify a constitutional violation.
C.

Loss of Good Time Credit

Jenkins’ loss of good time credit also does not raise a constitutional claim in this case.
Good time credit is relevant to a prisoner’s release to mandatory supervision. “‘Mandatory
supervision’ means the release of an eligible inmate sentenced to the institutional division so that
the inmate may serve the remainder of the inmate's sentence not on parole but under the
supervision of the pardons and paroles division.” TEX. GOV'T CODE ANN. § 508.001(5). A
prisoner who is eligible for mandatory supervision must be released “when the actual calendar
time the inmate has served plus any accrued good conduct time equals the term to which the

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inmate was sentenced.” Id. at § 508.147(a). Jenkins acknowledges, however, that he is not
eligible for mandatory supervision. Petition at 5. Because Jenkins is ineligible for mandatory
supervision, restoration of his good time credit will have no effect on his release date, and habeas
corpus relief is unavailable.
D.

Parole

To the extent that Jenkins complains that any of the penalties imposed might affect his
release to parole, this, too, does not state a claim for relief. A prisoner has no right to release on
parole. Rather, parole is left to the discretion of the parole board. See TEX. GOV'T CODE ANN. §
508.141.
Because it is entirely speculative whether a prisoner will be
released on parole, the court has determined “that there is no
constitutional expectancy of parole in Texas.” [Madison v.
Parker], [104 F.3d 765,] 768 [(5th Cir. 1997)]. Therefore, any
delay in [petitioner]'s consideration for parole cannot support a
constitutional claim.
Malchi v. Thaler, 211 F.3d 953, 957 (5th Cir. 2000). Because parole decisions are purely
discretionary, Jenkins has no constitutional right to parole.
III.

Certificate of Appealability
Jenkins has not requested a certificate of appealability (“COA”), but this Court may

determine whether he is entitled to this relief in light of the foregoing rulings. See Alexander v.
Johnson, 211 F.3d 895, 898 (5th Cir. 2000) (“It is perfectly lawful for district court’s [sic] to
deny COA sua sponte. The statute does not require that a petitioner move for a COA; it merely
states that an appeal may not be taken without a certificate of appealability having been issued.”)
A petitioner may obtain a COA either from the district court or an appellate court, but an
appellate court will not consider a petitioner’s request for a COA until the district court has
denied such a request. See Whitehead v. Johnson, 157 F.3d 384, 388 (5th Cir. 1988); see also

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Hill v. Johnson, 114 F.3d 78, 82 (5th Cir. 1997) (“[T]he district court should continue to review
COA requests before the court of appeals does.”). “A plain reading of the AEDPA compels the
conclusion that COAs are granted on an issue-by-issue basis, thereby limiting appellate review to
those issues alone.” Lackey v. Johnson, 116 F.3d 149, 151 (5th Cir. 1997).
A COA may issue only if the petitioner has made a “substantial showing of the denial of
a constitutional right.” 28 U.S.C. § 2253(c)(2); see also United States v. Kimler, 150 F.3d 429,
431 (5th Cir. 1998). A petitioner “makes a substantial showing when he demonstrates that his
application involves issues that are debatable among jurists of reason, that another court could
resolve the issues differently, or that the issues are suitable enough to deserve encouragement to
proceed further.” Hernandez v. Johnson, 213 F.3d 243, 248 (5th Cir.), cert. denied, 531 U.S.
966 (2000). The Supreme Court has stated that:
Where a district court has rejected the constitutional claims on the
merits, the showing required to satisfy § 2253© is straightforward:
The petitioner must demonstrate that reasonable jurists would find
the district court’s assessment of the constitutional claims
debatable or wrong.
Slack v. McDaniel, 529 U.S. 473, 484 (2000).
This Court has carefully considered Jenkins’ claims and concludes that he has failed to
make a “substantial showing of the denial of a constitutional right,” 28 U.S.C. § 2253(c)(2).
This Court concludes that Jenkins is not entitled to a certificate of appealability.
IV.

Conclusion And Order
For the foregoing reasons, it is ORDERED as follows:
A.

Petitioner Joseph Leon Jenkins’ petition for a writ of habeas corpus (Dkt. No. 1)
is DISMISSED WITHOUT PREJUDICE pursuant to Rule 4 of the Rules
Governing Habeas Corpus Cases under Section 2254 ; and

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B.

No certificate of appealability shall issue.

The Clerk shall notify all parties and provide them with a true copy of this Memorandum
and Order.
SIGNED on this 27th day of April, 2016.
___________________________________
Kenneth M. Hoyt
United States District Judge

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