McNickles v. Davis
MEMORANDUM AND ORDER granting 8 MOTION for Summary Judgment,and denying 1 Carlos McNickles Petition for Writ of Habeas Corpus. No certificate of appealability shall issue. (Signed by Judge Kenneth M Hoyt) Parties notified. (rosaldana, 4)
United States District Court
Southern District of Texas
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
August 23, 2017
David J. Bradley, Clerk
CIVIL ACTION NO. 4:16-CV-3129
MEMORANDUM AND ORDER
This case is before the Court on Petitioner Carlos McNickles’ Petition for Writ of Habeas
Corpus and Respondent Lorie Davis’ motion for summary judgment.
considered the Petition, the motion, and the arguments and authorities submitted by the parties,
the Court is of the opinion that Davis’ motion should be granted, and McNickles’ Petition for
Writ of Habeas Corpus should be DENIED.
McNickles brings this petition to challenge the results of a prison disciplinary hearing.
McNickles was charged with the prison disciplinary offense of possessing a cell phone in a
correctional facility. A Texas Department of Criminal Justice Officer stated that saw McNickles
in possession of a cell phone in his cell, but McNickles flushed the phone down the toilet when
ordered to hand it over. See Disciplinary Hearing Record (“DHR” (Dkt. No. 9-2) at 3-5.
The officer filed a report and testified. The evidence also included a photograph of the
back of a cell phone that was found in McNickles’ cell. See DHR. McNickles was found guilty,
and his punishment was assessed at the loss of 45 days commissary privileges, 45 days of cell
restriction, reduction in line class from L2 to L3, and loss of 364 days of accrued good time
McNickles filed Step 1 and Step 2 grievances, both of which were denied. He filed this
petition on October 12, 2016. Lorie Davis moved for summary judgment on February 23, 2017.
McNickles did not respond to the motion.
McNickles argues that the evidence was insufficient to support the finding that he
possessed the cellphone. He argues that prison authorities should have retrieved the phone from
the filtering system to prove that he flushed it down the toilet.
“Prison disciplinary proceedings are overturned only where no evidence in the record
supports the decision.” Broussard v. Johnson, 253 F.3d 874, 877 (5th Cir. 2001).
Ascertaining whether this standard is satisfied does not require
examination of the entire record, independent assessment of the
credibility of witnesses, or weighing of the evidence. Instead, the
relevant question is whether there is any evidence in the record that
could support the conclusion reached by the disciplinary [hearing
Superintendent, Massachusetts Corr. Inst., Walpole v. Hill, 472 U.S. 445 (1985).
The evidence presented at McNickles’ hearing included testimony and a written report by
the Officer who found McNickles with the phone, and a photograph of the back of the phone,
which was found in McNickles’ cell. Obviously, this is some evidence, and it is sufficient to
support the finding of guilt.
For the foregoing reasons, McNickles fails to raise a viable claim for habeas relief. His
petition must be dismissed with prejudice for the reasons stated in this opinion.
Certificate of Appealability
McNickles 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
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(c) 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 McNickles’ claim. The Court finds that the claim is
foreclosed by clear, binding precedent.
This Court concludes that under such precedents,
McNickles 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 McNickles is not entitled to a certificate of
For the foregoing reasons, it is ORDERED as follows:
Respondent Lorie Davis’ motion for summary judgment (Dkt. No. 8) is
Petitioner Carlos McNickles’ Petition for Writ of Habeas Corpus (Dkt. No. 1) is
in all respects DENIED; and
No certificate of appealability shall issue.
The Clerk shall notify all parties and provide them with a true copy of this Memorandum
SIGNED on this 22nd day of August, 2017.
Kenneth M. Hoyt
United States District Judge
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