Brown v. Thaler

Filing 5

REPORT AND RECOMMENDATIONS re 1 Petition for Writ of Habeas Corpus filed by Robert F. Brown, III, recommending denial of application for writ, and denial of certificate of appealability. Signed by Judge Robert Pitman. (mc2, )

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION
ROBERT F. BROWN III,
Petitioner,

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V.
RICK THALER, Director,
Texas Dept. of
Criminal Justice-Correctional
Institutions Division,
Respondent.

A-11-CA-492-SS

REPORT AND RECOMMENDATION OF UNITED STATES MAGISTRATE JUDGE
To:

The Honorable Sam Sparks, United States District Judge
The Magistrate Judge submits this Report and Recommendation to the District Court

pursuant to 28 U.S.C. §636(b) and Rule 1(e) of Appendix C of the Local Court Rules of the United
States District Court for the Western District of Texas, Local Rules for the Assignment of Duties to
United States Magistrates, as amended, effective December 1, 2002.
Before the Court is Petitioner’s Application for Habeas Corpus under 28 U.S.C. § 2254
(Document 1). Petitioner, proceeding pro se, has been granted leave to proceed in forma pauperis.
For the reasons set forth below, the undersigned finds that Petitioner’s application for writ of habeas
corpus should be denied.
STATEMENT OF THE CASE
A.

Petitioner’s Criminal History

Petitioner does not challenge his holding convictions out of Williamson County. Instead, he
challenges disciplinary case 20110165950 in which Petitioner was found guilty of being in
possession of contraband, to wit: deodorant. As a result of the disciplinary case, Petitioner received

30 days of recreation and commissary restrictions. Petitioner admits he did not lose any good time
credits.
DISCUSSION AND ANALYSIS
Petitioner’s punishments do not trigger the Due Process Clause. In Madison v. Parker, 104
F.3d 765, 768 (5th Cir. 1997), the Fifth Circuit Court of Appeals held that commissary and cell
restrictions as punishment are merely changes in the conditions of a prisoner’s confinement and do
not implicate due process concerns. “They are penalties which do not represent the type of atypical,
significant deprivation in which a state might create a liberty interest.” Id.
RECOMMENDATION
It is recommended that Petitioner’s application for writ of habeas corpus be denied.
CERTIFICATE OF APPEALABILITY
An appeal may not be taken to the court of appeals from a final order in a habeas corpus
proceeding “unless a circuit justice or judge issues a certificate of appealability.” 28 U.S.C.
§ 2253(c) (1)(A). Pursuant to Rule 11 of the Federal Rules Governing Section 2254 Cases, effective
December 1, 2009, the district court must issue or deny a certificate of appealability when it enters
a final order adverse to the applicant.
A certificate of appealability may issue only if a petitioner has made a substantial showing
of the denial of a constitutional right. 28 U.S.C. § 2253(c)(2). The Supreme Court fully explained
the requirement associated with a “substantial showing of the denial of a constitutional right” in
Slack v. McDaniel, 529 U.S. 473, 484, 120 S. Ct. 1595 (2000). In cases where a district court
rejected a petitioner’s constitutional claims on the merits, “the petitioner must demonstrate that
reasonable jurists would find the district court’s assessment of the constitutional claims debatable
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or wrong.” Id. “When a district court denies a habeas petition on procedural grounds without
reaching the petitioner’s underlying constitutional claim, a COA should issue when the petitioner
shows, at least, that jurists of reason would find it debatable whether the petition states a valid claim
of the denial of a constitutional right and that jurists of reason would find it debatable whether the
district court was correct in its procedural ruling.” Id.
In this case, reasonable jurists could not debate the dismissal or denial of the Petitioner’s
section 2254 petition on substantive or procedural grounds, nor find that the issues presented are
adequate to deserve encouragement to proceed. Miller-El v. Cockrell, 537 U.S. 322, 327, 123 S. Ct.
1029 (2003) (citing Slack, 529 U.S. at 484). Accordingly, it is respectfully recommended that the
Court shall not issue a certificate of appealability.
OBJECTIONS
The parties may file objections to this Report and Recommendation. A party filing
objections must specifically identify those findings or recommendations to which objections are
being made. The District Court need not consider frivolous, conclusive, or general objections.
Battles v. United States Parole Comm’n, 834 F.2d 419, 421 (5th Cir. 1987).
A party’s failure to file written objections to the proposed findings and recommendations
contained in this Report within fourteen (14) days after the party is served with a copy of the Report
shall bar that party from de novo review by the district court of the proposed findings and
recommendations in the Report and, except upon grounds of plain error, shall bar the party from
appellate review of unobjected-to proposed factual findings and legal conclusions accepted by the
district court. See 28 U.S.C. § 636(b)(1)(C); Thomas v. Arn, 474 U.S. 140, 150-153, 106 S. Ct.
466, 472-74 (1985); Douglass v. United Servs. Auto. Assoc., 79 F.3d 1415 (5th Cir. 1996)(en banc).
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To the extent that a party has not been served by the Clerk with this Report and
Recommendation electronically, pursuant to the CM/ECF procedures of this District, the Clerk is
ORDERED to mail such party a copy of this Report and Recommendation by certified mail, return
receipt requested.
SIGNED this 15th day of June, 2011.

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ROBERT PITMAN
UNITED STATES MAGISTRATE JUDGE

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