Green v. Davis
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
ADRIAN LAMONT GREEN,
LORIE DAVIS, Director,
Texas Department of Criminal
Respondent . 1
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
(Docket Entry No.
seeking relief from a prison
After considering the pleadings and the
applicable law, the court will dismiss this action for the reasons
currently incarcerated at
Ellis Unit as
result of a murder conviction that was entered against him in 2008
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
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.
received a 33-year prison sentence in that case. 3
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,
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,
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,
Green contends that the
insufficient evidence to establish that he possessed tobacco as
Petition, Docket Entry No. 1, p. 2.
Id. at 5.
Id. at 5-6.
Petition, Docket Entry No. 1, p. 5.
Id. at 5-6.
explained below, the court concludes that Green is not entitled to
proceedings in the state prison context.
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).
emanate from either the Due Process Clause itself or from state
See Kentucky Dep't of Corrections v. Thompson,
109 S. Ct.
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
See Greenholtz v.
Inmates of the Nebraska Penal and
99 S. Ct.
circumstances, the petitioner's claims depend on the existence of
a constitutionally protected liberty interest created by state law.
Id. at 6-7.
The Supreme Court has decided that only those state-created
substantive interests that "inevitably affect the duration of
sentence" may qualify for constitutional protection
under the Due Process Clause.
115 S. Ct. at 2302.
also Orellana v. Kyle, 65 F.3d 29, 31-32 (5th Cir. 1995).
only those inmates who are eligible for the form of parole known as
mandatory supervision have a constitutional expectancy of early
See Malchi v. Thaler, 211 F.3d 953, 956 (5th Cir. 2000).
As a result, a Texas prisoner cannot demonstrate a constitutional
satisfying the following criteria:
he must be eligible for
early release on mandatory supervision; and (2)
conviction at issue must have resulted in a
earned good-time credit.
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
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)
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,
"merely changes in the conditions of [an inmate's] confinement," do
not implicate due process concerns.
(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.
211 F.3d at 958; Luken v. Scott, 71 F.3d 192, 193 (5th Cir. 1995);
Neals v. Norwood, 59 F.3d 530, 533
(5th Cir. 1995).
Process Clause, and his pending federal habeas corpus Petition must
be dismissed for failure to state a claim upon which relief may be
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.
certificate of appealability will not issue unless the petitioner
"a substantial showing of the denial of a
2253 (c) (2),
which requires a petitioner to
Tennard v. Dretke, 124 S. Ct. 2562, 2564 (2004)
controlling standard this
reasonable jurists could debate whether (or, for that matter, agree
that) the petition should have been resolved in a different manner
encouragement to proceed further.'"
1 02 9
1 03 9
( 2 0 03 ) .
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
correct in its procedural ruling."
A district court may deny a
Slack, 120 S. Ct. at 1604.
certificate of appealability,
sua sponte, without requiring further briefing or argument.
211 F.3d 895,
reasons set forth above, the court concludes that jurists of reason
would not debate whether the petitioner states a valid claim or
Therefore, a certificate of appealability will not issue.
Conclusion and Order
Based on the foregoing, the court ORDERS as follows:
The Petition for a Writ of Habeas Corpus By a
Person in State Custody filed by Adrian Lamont
Green (Docket Entry No. 1) is DENIED, and this case
will be dismissed with prejudice.
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.
UNITED STATES DISTRICT JUDGE
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