Green v. Davis

Filing 3

MEMORANDUM OPINION AND ORDER 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

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION

ADRIAN LAMONT GREEN,
TDCJ #1495025,

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Petitioner,
v.

LORIE DAVIS, Director,
Texas Department of Criminal
Justice, Correctional
Institutions Division,
Respondent . 1

ENTERED
July 21, 2017
David J. Bradley, Clerk

CIVIL ACTION NO. H-17-2027

MEMORANDUM OPINION AND ORDER

The petitioner, Adrian Lamont Green (TDCJ #1495025), has filed
a Petition for a Writ of Habeas Corpus By a Person in State Custody
("Petition")

(Docket Entry No.

disciplinary conviction.

1),

seeking relief from a prison

After considering the pleadings and the

applicable law, the court will dismiss this action for the reasons
explained below.
I.
Green is

Background

currently incarcerated at

the

Ellis Unit as

the

result of a murder conviction that was entered against him in 2008

1

The Petition names the Honorable Dale Wainwright, who is
Chairman of the Texas Board of Criminal Justice, and Warden
Roesler, as the respondents. Because the petitioner is in custody
of the Texas Department of Criminal Justice
Correctional
Institutions Division ("TDCJ"), Director Lorie Davis is substituted
as the proper respondent pursuant to Rule 2 (a) of the Rules
Governing Section 2254 Cases in the United States District Courts.

in

the

187th District

Court

of

Bexar

County,

received a 33-year prison sentence in that case. 3

Texas. 2

Green

Green does not

challenge that conviction in this action.
Green seeks relief from a prison disciplinary conviction that
was entered against him at the Ellis Unit on May 20,

2016. 4

In

particular, Green challenges his conviction in disciplinary case
#20160278946 for possessing contraband (tobacco)
prison rules. 5

in violation of

As a result of this disciplinary conviction, Green

forfeited 360 days of previously earned good-time credit and he
temporarily lost commissary,
privileges. 6

recreation,

and contact visitation

Green was reduced in custodial and classification

status as punishment for his offense. 7

Green filed grievances to

challenge the conviction, but his appeals were unsuccessful. 8
In four related claims for relief,
challenged disciplinary
violation

of

the

right

conviction was
to

due

Green contends that the
entered against

process

because

him

there

in
was

insufficient evidence to establish that he possessed tobacco as

2

Petition, Docket Entry No. 1, p. 2.

3

Id.

4

Id. at 5.

5

Id. at 5-6.

6

Petition, Docket Entry No. 1, p. 5.

7

Id.

8

Id. at 5-6.
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alleged

in

the

disciplinary

case

him. 9

against

For

reasons

explained below, the court concludes that Green is not entitled to
relief

under

the

legal

standard

that

governs

disciplinary

proceedings in the state prison context.
II.

Prison Disciplinary Proceedings

An inmate's rights

in the prison disciplinary setting are

governed by the Due Process Clause of the Fourteenth Amendment to
the United States Constitution.
2963, 2974-75 (1974).

See Wolff v. McDonnell, 94 S. Ct.

Prisoners charged with institutional rules

violations are entitled to rights under the Due Process Clause only
when the disciplinary action may result in a sanction that will
infringe upon a constitutionally protected liberty interest.
Sandin v. Conner, 115 S. Ct. 2293, 2302 (1995).

See

Liberty interests

emanate from either the Due Process Clause itself or from state
law.

See Kentucky Dep't of Corrections v. Thompson,

1904,

1908

(1989)

(citation omitted).

To

the

109 S. Ct.

extent

that

a

disciplinary conviction may affect an inmate's eligibility for
early release from prison, the Due Process Clause does not include
a right to conditional release before the expiration of a valid
sentence.

See Greenholtz v.

Correctional Complex,

Inmates of the Nebraska Penal and

99 S. Ct.

2100,

2104

(1979).

Under these

circumstances, the petitioner's claims depend on the existence of
a constitutionally protected liberty interest created by state law.

9

Id. at 6-7.
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The Supreme Court has decided that only those state-created
substantive interests that "inevitably affect the duration of
prisoner's]

[a

sentence" may qualify for constitutional protection

under the Due Process Clause.

Sandin,

115 S. Ct. at 2302.

also Orellana v. Kyle, 65 F.3d 29, 31-32 (5th Cir. 1995).

In Texas

only those inmates who are eligible for the form of parole known as
mandatory supervision have a constitutional expectancy of early
release.

See Malchi v. Thaler, 211 F.3d 953, 956 (5th Cir. 2000).

As a result, a Texas prisoner cannot demonstrate a constitutional
violation

in

the

prison

disciplinary

satisfying the following criteria:

(1)

context

first

he must be eligible for

early release on mandatory supervision; and (2)
conviction at issue must have resulted in a
earned good-time credit.

without

the disciplinary

loss of previously

See id. at 957-58 (explaining that only

those Texas inmates who are eligible for early release on mandatory
supervision have a protected liberty interest in their previously
earned good-time credit) .
Green cannot demonstrate a constitutional violation in this
case because, although he lost good-time credit as the result of
the challenged disciplinary conviction, he admits that he is not
eligible for mandatory supervision. 10
process claims.

This is fatal to Green's due

See Malchi, 211 F.3d at 957-58.

Peti tion, Docket Entry No. 1, p. 5 ~ 16. See also Tex. Gov' t
Code § 508.149 (a) (2) (excluding Texas prisoners convicted of murder
from eligibility for mandatory supervision)
10

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Although the disciplinary conviction at issue also resulted in
a loss of privileges and affected Green's classification status,
the Fifth Circuit has recognized that such sanctions,

which are

"merely changes in the conditions of [an inmate's] confinement," do
not implicate due process concerns.
765,

768

(5th Cir. 1997).

Madison v. Parker, 104 F.3d

Limitations imposed on privileges are

the type of sanctions that do not pose an atypical or significant
hardship beyond the ordinary incidents of prison life.
Likewise, reductions in a prisoner's custodial classification and
the potential impact on good-time credit earning ability are too
attenuated to be protected by the Due Process Clause.

See Malchi,

211 F.3d at 958; Luken v. Scott, 71 F.3d 192, 193 (5th Cir. 1995);
Neals v. Norwood, 59 F.3d 530, 533
circumstances

Green cannot

(5th Cir. 1995).

demonstrate

a

Under these

violation of

the

Due

Process Clause, and his pending federal habeas corpus Petition must
be dismissed for failure to state a claim upon which relief may be
granted.
III.

Certificate of Appealability

Rule 11 of the Rules Governing Section 2254 Cases now requires
a district court to issue or deny a certificate of appealability
when entering a final order that is adverse to the petitioner.

A

certificate of appealability will not issue unless the petitioner
makes

"a substantial showing of the denial of a

right,"

28 U.S.C.

demonstrate

"that

§

2253 (c) (2),

reasonable

constitutional

which requires a petitioner to

jurists
-5-

would

find

the

district

court's

assessment

wrong."

Tennard v. Dretke, 124 S. Ct. 2562, 2564 (2004)

Slack v.

McDaniel,

of

the

120 S.

controlling standard this

constitutional

Ct.

1595,

requires

claims

1604

a

debatable

(2000)).

or

(quoting
Under the

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.'"

s.

Ct .

1 02 9

I

1 03 9

( 2 0 03 ) .

'adequate

Miller-El v.

to

deserve

Cockrell,

123

Where denial of relief is 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

correct in its procedural ruling."
A district court may deny a

the

district

court

was

Slack, 120 S. Ct. at 1604.
certificate of appealability,

sua sponte, without requiring further briefing or argument.

See

Alexander v.

For

Johnson,

211 F.3d 895,

898

(5th Cir.

2000).

reasons set forth above, the court concludes that jurists of reason
would not debate whether the petitioner states a valid claim or
that

the

Petition

should

be

resolved

in

a

different

manner.

Therefore, a certificate of appealability will not issue.
IV.

Conclusion and Order

Based on the foregoing, the court ORDERS as follows:
1.

The Petition for a Writ of Habeas Corpus By a
Person in State Custody filed by Adrian Lamont
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Green (Docket Entry No. 1) is DENIED, and this case
will be dismissed with prejudice.
2.

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 the 21st day of July, 2017.

,.

SIM LAKE
UNITED STATES DISTRICT JUDGE

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