Brown v. Stephens

Filing 11

ORDERED that the Report and Recommendation of the United States Magistrate Judge # 9 is ACCEPTED; FURTHER ORDERED that Petitioner Robert F. Brown III's Petition for Writ of Habeas Corpus under 28 U.S.C. § 2254 # 1 is DENIED; FINALLY ORDERED that a certificate of appealability is DENIED. Signed by Judge Sam Sparks. (td)

FftEc'

COfl, 28

IN THE UNITED STATES DISTRICT
FOR THE WESTERN DISTRICT OF TEXAS
AUSTIN DIVISION

PH

101

ROBERT F. BROWN III,

Petitioner,
Case No. A-14-CA-1028-SS

-vs-

WILLIAM STEPHENS,
Respondent.

ORDER
BE IT REMEMBERED on this day the Court reviewed the file in the above-styled cause, and

specifically Petitioner Robert F. Brown III's Petition for Writ of Habeas Corpus under 28
§

U.s.c.

2254 [#1] and the Report and Recommendation ofUnited States Magistrate Judge Mark Lane [#9].

No objections have been filed. Having reviewed the documents, the governing law, and the file as
a whole, the Court enters the following opinion and orders.

All matters in this case were referred to United States Magistrate Judge Mark Lane for report
and recommendation pursuant to 28 U.S.C.

§ 63 6(b)

and Rule

1

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 Magistrate Judges. Petitioner is entitled to de novo review

of the portions of the Magistrate Judge's report to which he filed specific objections. 28 U.S.C.
§

636(b)(1). All other review is for plain error.

Starns

v.

Andrews,

524 F.3d 612, 617 (5th Cir.

2008). Nevertheless, this Court has reviewed the entire file de novo, and agrees with the Magistrate

Judge's recommendation.

I

Background
A.

Factual and Procedural History
Petitioner is presently incarcerated pursuant to a judgment and sentence rendered by the

277th Judicial District Court of Williamson County, Texas. Petitioner is presently serving a twelveyear sentence in the French Robertson Unit, a maximum-security state prison located in Jones
County, Texas, following his conviction of five counts of indecency with a child by contact.

Petitioner's habeas petition, however, does not challenge his holding conviction; rather, Petitioner
challenges prison disciplinary case number 20140331227. In that case, Petitioner was charged with
(1) engaging in a consensual sexual act with others and (2) being out of place. Following a

disciplinary hearing, during which Petitioner pled not guilty to the first charge and guilty to the
second, a disciplinary hearing officer (DM0) found Petitioner guilty of both charges. Petitioner's

punishment was: (1) loss of 45 days of recreation privileges; (2) loss of 45 days of commissary
privileges; (3) a reduction in line class status; and (4) loss of 30 days of good-time credit.
Petitioner submitted a "Step 1" grievance following assessment ofhis punishment, appealing
the outcome of the disciplinary hearing. That grievance was denied on August 28, 2014. Petitioner

thereafter submitted a "Step 2" grievance, appealing the outcome of the Step

1

grievance. That

grievance was denied on September 9, 2014. The instant habeas petition followed.
B.

Petitioner's Grounds for Relief
Petitioner raises the following grounds for relief:
1.

insufficient evidence to support the DHO's finding of guilt on the charge of
engaging in a consensual sexual act with others;

2.

no evidence to support the DHO's finding of guilt other than the charging
officer's report;

-2-

3.

prison officials destroyed video footage that would have proven Petitioner's
innocence of the charge; and

4.

the DHO's finding of guilt and the punishment assessed violates Petitioner's
liberty interest in parole.

Analysis
Respondent raises three arguments: (1) Petitioner failed to exhaust his third and fourth
grounds for re1ief, as he failed to assert either in his Step

1

and Step 2 grievances; (2) the loss of

recreation and commissary privileges and the reduction in line class status do not implicate due
process protections, and are therefore non-cognizable in habeas; and (3) as Petitioner is not eligible
for mandatory supervision, the loss of good-time credit does not implicate a liberty interest.

Respondent reserves argument of the failure-to-exhaust affirmative defense and focuses exclusively

on the merits arguments. A habeas petition may be denied on the merits, notwithstanding the

petitioner's failure to exhaust. 28 U.S.C.

§

2254(b)(2). Because the Court agrees no due process

or liberty interests are implicated by Petitioner's claims, Petitioner's § 2254 petition must be denied.
A.

Loss of Privileges & Line Class Status
"[T]he Due Process Clause does not protect every change in the conditions of confinement

having a substantial adverse impact on the prisoner." Sandin v. Conner, 515 U.S. 472, 478 (1995).

While states may, under certain circumstances, create liberty interests held byprisoners and protected
by the Due Process Clause, those interests are generally limited to those "which affect the quantity

of time rather than the quality of time served by a prisoner." Madison v. Parker, 104 F.3d 765, 767
(5th Cir. 1997). Commissary restrictions and recreation restrictions, imposed as punishment for an

inmate's misconduct, are merely changes in the conditions of confinement and do not implicate due
process concerns; they "do not represent the type of atypical, significant deprivation in which a state
-3-

might create a liberty interest." Id, at 768. Consequently, Respondent is correct that Petitioner's loss

of recreation and commissary privileges are non-cognizable in federal habeas.
Similarly, Petitioner's reduction in "line class status," which determines how much good-

time credit a prisoner earns per day of good conduct, does not implicate due process concerns. The
effect of line class status on the timing of a prisoner's release "is too speculative to afford him a
constitutionally cognizable claim to the 'right' to a particular time-earning status, which right the

Texas legislature has specifically denied creating." Maichi v. Thaler, 211 F.3d 953, 959 (5th Cir.
2000) (citingBulgerv. Un ited States, 65 F.3d 48, 50(5th Cir. 1995)). Petitioner's claim concerning

reduction in his line class status is also non-cognizable in habeas.
B.

Loss of Good-Time Credit
The loss of good-time credit, however, requires a slightly more searching analysis.

Accumulated good-time credit allows an eligible prisoner to be released early and to serve the

remainder of his sentence under mandatory supervision.

Madison, 104 F.3d at 768.

The

Constitution does not guarantee good-time credit for good behavior while in prison. Maichi, 211
F.3d at 959. However, "[w]hen a state creates a right to good time credit and recognizes that its

revocation is an authorized sanction for misconduct," a prisoner has a protected liberty interest in
the right, entitling him to due process protection before it is revoked. Id. Thus, a prisoner who is
eligible for early release under mandatory supervision may bring a habeas claim based upon loss of

good-time credit.

Petitioner may not bring such a claim because he is not eligible for early release under

mandatory supervision. At the time Petitioner committed his offenses, indecency with a child by
contact was a second-degree felony under § 21.11 of the Texas Penal Code. See TEx. PENAL CODE

El

§

21.11(d) (West 2003, 2004). The Texas mandatory supervision statute then in effect1 provided that

an inmate serving a sentence for a second-degree felony under
to mandatory supervision. TEX. Gov'T CODE

§

§

21.11 was not eligible for release

508.149(a)(5) (West 2003, 2004). Because he is

ineligible, Petitioner has no habeas claim based upon a constitutional expectancy of early release

under mandatory supervision.
Finally, Petitioner's claim his loss of good-time credit is constitutionally salient because of
its potential effect on his possible release on parole must be rejected. There is no constitutional right
to release on parole in Texas. Madison, 104 F.3d at 768 (citing Creel

v.

Keene, 928 F.2d 707 (5th

Cir. 1991)).

C.

Retaliation
As the Magistrate Judge noted, while unclear from his petition, Petitioner may also be

asserting that the disciplinary action against him was taken in retaliation for previously filing
grievances on his own behalf and on behalf of other inmates. To state a valid claim for retaliation,

"a prisoner must allege (1) a specific constitutional right, (2) the defendant's intent to retaliate
against the prisoner for his or her exercise of that right, (3) a retaliatory adverse act, and
(4) causation." Hart v. Hairston, 343 F.3d 762, 764 (5th Cir. 2003) (internal quotes omitted). "To

assure that prisoners do not inappropriately insulate themselves from disciplinary actions by drawing

the shield of retaliation around them, trial courts must carefully scrutinize these claims." Woods v.
Smith, 60 F.3d 1161, 1166 (5th Cir. 1995). An inmate bringing a retaliation claim bears the

"significant burden" of establishing that "but for the retaliatory motive, the complained of incident

An inmate's eligibility for mandatory supervision in Texas is determined based on the statute in effect at the
time of the offense. Exparte Hall, 995 S.W.2d 151, 152 (Tex. Crim. App. 1999).

-5-

would not have occurred." Id. The Court agrees with the Magistrate Judge that Petitioner has
failed to carry that burden, particularly as Petitioner pled guilty to the second of the two disciplinary
charges brought against him.

Conclusion
As all of Petitioner's claims fail on the merits, the Court finds his

§

2254 petition must be

denied. An appeal may not be taken to the court of appeals from a final order in a proceeding under
§
§

2254 "unless a circuit justice or judge issues a certificate of appealability."

2253(c)(1)(A). Pursuant to Rule

11

28 U.S.C.

of the Federal Rules Governing Section 2254 Proceedings,

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 movant 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 (2000).

Tn

cases where a district court rejects a movant'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 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 of Petitioner's

§

2254 petition

on substantive or procedural grounds, nor find the issues presented are adequate to deserve

encouragement to proceed.

Miller-El

v.

Cockrell,

537 U.S. 322, 327 (2003) (citing Slack, 529 U.s.

at 484)). Thus, a certificate of appealability shall not issue.

Accordingly:
IT IS ORDERED that the Report and Recommendation of the United States

Magistrate Judge [#9] is ACCEPTED;
IT IS FURTHER ORDERED that Petitioner Robert F. Brown III's Petition for Writ

of Habeas Corpus under 28 U.S.C. § 2254 [#1] is DENIED; and
IT IS FINALLY ORDERED that a certificate of appealability is DENIED.

SIGNED this the

êday of May 2015.

UNITED STATES DISTRICT JUDGE

1028 rrokba.frrn