Reynolds v. Davis, Director, TDCJ-CID

Filing 14

MEMORANDUM OPINION AND ORDER. Signed by Judge David Briones. (mm1)

FILED

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
THOMAS KIRK REYNOLDS,
Petitioner,

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2S170CT2i
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CJ$TRJCr COURT
RICT OF TEXAS

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v.

EP-17-CV-299-DB

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

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MEMORANDUM OPINION AND ORDER
Petitioner Thomas Kirk Reynolds, TDCJ Number 1536201, challenges a prison

disciplinary proceeding through apro se petition for writ of habeas corpus under 28 U.S.C.

§ 2254

(ECF No. 1). Respondent Lone Davis counters Reynolds fails to state a claim entitling him to

relief.' After reviewing the record and for the reasons discussed below, the Court agrees with
Davis. The Court will accordingly deny Reynolds's petition and decline to certify his issues for

appeal.

BACKGROUND AND PROCEDURAL HISTORY
Davis retains lawful custody of Reynolds pursuant to two judgments and sentences in the

409th Judicial District Court of El Paso County, Texas. Prison records establish Reynolds
pleaded guilty to engaging in organized criminal activity in violation of Texas Penal Code § 71.02,
and aggravated assault in violation of Texas Penal Code

§

22.02.2 They further

showalthough

the offenses occurred in 2000 and 2001the trial court assessed punishment at ten years'

1

Resp't's Answer 5-8, ECF No.

2

Id., Ex. A (Commitment Inquiry).

10.

-1-

10

imprisonment for engaging in organized criminal activity and seventeen years' imprisonment for

the aggravated assault on September 25, 2008. They also showbased on the mandatory

supervision statute in effect at the time Reynolds committed the aggravated assaulthe is not
eligible for release to mandatory supervision.3

On April 10, 2017, Reynolds received notification of disciplinary case number

20170235774 charging him with spitting in the face of a correctional officer.4 Reynolds declined
the opportunity to make a statement or attend a disciplinary hearing.5 On April 11, 2017,

Reynolds's counsel substitute appeared at his hearing and entered a not guilty plea. After
reviewing the charging officer's report, the disciplinary hearing officer found Reynolds guilty and

assessed his punishment at the loss of 45 days of good time credit, 45 days of recreation privileges,
and 45 days of commissary access.6 Reynolds submitted a Step

1

grievance to appeal this

disciplinary proceeding, initiating grievance number 2017122315, which prison officials denied.7
Reynolds then submitted a Step 2 grievance, appealing the outcome of his Step

1

grievance, which

prison officials again denied. The instant federal petition followed.
In his petition, Reynolds asserts four violations of his rights under the Due Process Clause

Id. at 4-5 (citing Tex. Gov't Code § 508.149(a)(7)).

Id., Ex. B (TDCJ Disciplinary Report and Hearing Record); see also Disciplinary Hearing
Record (Offense Report), ECF No. 11-2 ("I ... was assisting my Sgt. With a cell search[.]
Offender [Reynolds] had illegal amount of property in cell according to policy[.] ... Offender
Reynolds then spit saliva on my face landing on my right cheek and safety glasses.").

Resp't's Answer, Ex. B.
61d.

Id at 3-4; see

also

Disciplinary Grievance Record, ECF No. 11-1.
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of the Fourteenth Amendment.8 First, he claims his counsel substitute failed to interview or call
witnesses, or present documentary evidence. Second, he suggests the hearing officer exhibited
bias. Third, he maintains the hearing officer excluded him from the hearing and his counsel

substitute did not speak for him. Finally, he asserts the complaining officer conspired and
retaliated against him. He asks the Court to grant him "the relief to which he may be entitled."9

APPLICABLE LAW
An inmate's rights in prison disciplinary proceedings are governed by the Due Process
Clause of the Fourteenth Amendment to the United States Constitution.1° "[T]he Due Process
Clause does not protect every change in the conditions of confinement having a substantial adverse

impact on the prisoner."1' Prisoners charged with institutional rules violations are only entitled to

relief under the Due Process Clause when the disciplinary action may result in a sanction that will
infringe upon a constitutionally protected liberty interest.'2 These protected liberty interests can
But the range of

emanate from either the Due Process Clause itself or from state

law.'3

constitutionally protected liberty interests is a "narrow"

Only those state-created

one.'4

substantive interests which "inevitably affect the duration of [a prisoner's] sentence" may qualify

8

Pet'r's Pet. 6-7, ECF No.

1.

Id. at 10.
10

Woffv.

McDonnell, 418 U.S. 539, 557 (1974).

"

Sandin v. Conner, 515 U.S. 472, 478 (1995).

12

Id. at 483-84.

' Kentucky Dept. of Corrections v. Thompson, 490 U.S. 454, 460 (1989).
14

Orellana v. Kyle, 65 F.3d 29, 3 1-32 (5th Cir. 1995).
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for constitutional protection under the Due Process Clause.15

In Texas, only those inmates who are eligible for mandatory supervision have a
constitutional expectancy of early release.'6 It follows that Texas prisoners cannot demonstrate
constitutional violations without first establishing (1) they are eligible for early release on

mandatory supervision, and (2) the disciplinary convictions at issue resulted in the loss of credit
for good conduct.17

ANALYSIS
In his petition, Reynolds claims he lost 45 days of good time credit, recreation privileges,

and commissary access as the result of four violations of the Due Process Clause during his
disciplinary proceedings in case number 20170235774.18 As the Court noted above, Reynolds
my obtain relief under the Due Process Clause only when the disciplinary action resulted in a

sanction which infringes upon a constitutionally protected liberty interest.19
A. Good-Time Credit

"[T]he Constitution itself does not guarantee good-time credit for satisfactory behavior

' Sandin, 515 U.S. at 487; see also Orellana, 65 F.3d at 31-32.
16

Malchi v. Thaler, 211 F.3d 953, 956-59 (5th Cir. 2000) (addressing the mandatory supervision
scheme in place prior to September 1, 1996); Teague v. Quarterman, 482 F.3d 769, 774-77 (5th
Cir. 2007) (discussing the mandatory supervision schemes in place both before and after
September 1, 1996).
17

Malchi, 211 F.3d at 956-59 (explaining that only those Texas inmates who were eligible for
early release on mandatory supervision before September 1, 1996, have a protected liberty interest
in their previously earned good-time credit).
18

Pet'r's Pet. 6-7, ECF No.

19

Sandin, 515 U.S. at 483-84.

1.

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while in prison."20 However, "[w]hen a state creates a right to good time credit ..., a prisoner's
interest therein is embraced within the Fourteenth Amendment 'liberty' concerns so as to entitle
him to those minimum procedures appropriate under the circumstances and required by the due

process clause

,,21

The Texas Government Code provides an inmate may accrue good conduct time credit.22
However, an inmate may only apply the credit "to eligibility for parole or mandatory supervision
as provided by [Government Code] Section 508.145 or 508.147 and does not otherwise affect an

inmate's term."23 Section 508.147 explains, "[e]xcept as provided by [Government Code]
Section 508.149, a parole panel shall order the release of an inmate who is not on parole to

mandatory supervision when the actual calendar time the inmate has served plus any accrued good

conduct time equals the term to which the inmate was

sentenced."24

Section 508.149 provides

"[a]n inmate may not be released to mandatory supervision if the inmate is serving a sentence for

a first degree felony or a second degree felony under Section 22.02, Penal Code

,,25

Reynolds is serving a sentence for an aggravated assault, in violation of Section 20.22,
Penal

20

21

Code.26

He is not eligible for release to mandatory

WofJ 418 U.S. at 557.
Madison

v.

Parker,

104 F.3d 765, 768 (5th Cir. 1997).

22

Tex. Gov't Code Ann. § 498.003(b) (West).

23

Id § 498.003b).

24

Id

§

508.147(a).

25

Id. § 508.149(a)(7).

26

Resp't's Answer, Ex. A (Commitment Inquiry).
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supervision.27

Because the Texas

legislature specifically excluded inmatesincluding Reynoldsserving sentences for aggravated

assault from eligibility for release to mandatory supervision, it necessarily follows that Reynolds
has no liberty interest in his good time credits.28 Consequently, because Reynolds's loss of good

time credit does not affect the fact or duration of his sentence, his claim does not provide a basis for
federal habeas corpus relief.29
B. Recreation Privileges and Commissary Access

As a result of the disciplinary proceedings, Reynolds also lost 45 days of recreation

privileges and commissary access. Such punishments do not pose an "atypical" or "significant
hardship" beyond "the ordinary incidents of prison life."30 Rather, they constitute a change in the
conditions of Reynolds's

27

confinement.31

Because these sanctions do not implicate a protected

Tex. Gov't Code Ann. § 508.149(a)(7).

28

Hallmark v. Johnson, 118 F.3d 1073, 1080 (5th Cir. 1997) (citing Board ofPardons v. Allen,
482 U.S. 369, 378 n. 10 (1987) ("statutes or regulations that provide that a parole board 'may'
release an inmate on parole do not give rise to a protected liberty interest"); Allison v. Kyle, 66 F.3d
71, 74 (5th Cir. 1995) ("It follows that because [the prisoner] has no liberty interest in obtaining
parole in Texas, he cannot complain of the constitutionality of procedural devices attendant to
parole decisions."). See also Campos v. Johnson, 958 F. Supp. 1180, 1189 (W.D. Tex. 1997)
("[n]o court has ever construed the Texas statutes relating to mandatory supervision as creating
such a federally-protected right on behalf of Texas prisoners whose offenses are expressly and
specifically excluded from the parameters of the Texas mandatory supervision statute.").
29

See Madison, 104 F.3d at 768 (acknowledging that under Texas Code of Criminal Procedure
article 42.18 § 8(c) certain inmates are not eligible for release to mandatory supervision and
holding that, if on remand the district court finds that the petitioner is not eligible for mandatory
supervision, the court may reinstate the dismissal of the petitioner's writ for habeas corpus relief
because the petitioner would not be entitled to procedural due process); Maichi, 211 F.3d at 95758.
30

31

Sandin, 515 U.S. at 484.

See id. at 486 (holding that no liberty interest was implicated by discipline ruling placing an
inmate in segregated confinement); Madison v. Parker, 104 F.3d 765, 768 (5th Cir. 1997) (stating
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liberty interest, any claim by him concerning his disciplinary conviction fails to establish the

requisite constitutional violation as a matter of law. Absent an allegation that Reynolds has been

deprived of some right secured to him by the United States Constitution or laws of the United
States,

§

2254 relief is not available.32 Thus, Reynolds fails to state a claim which entitles him to

relief.

CERTIFICATE OF APPEALABILITY
A petitioner may not appeal a final order in a habeas corpus proceeding "unless a circuit

justice or judge issues a certificate of appealability."33 Further, appellate review of a habeas
petition is limited to the issues on which a certificate of appealability is

granted.34

In other

words, a certificate of appealability is granted or denied on an issue-by-issue basis, thereby

limiting appellate review solely to those issues on which a certificate of appealability is
granted.35

Although Reynolds has not yet filed a notice of appeal, this Court must nonetheless

address whether he is entitled to a certificate of appealability.36
that thirty-day commissary and cell restrictions does not implicate due process concerns).
32

See Orellana, 65 F.3d at 31; Hilliard v. Board ofPardons and Paroles, 759 F.2d 1190, 1192
(5th Cir. 1985).
28 U.S.C. § 2253(c)(1) (2012).
See Lackey v. Johnson, 116 F.3d 149, 151 (5th Cir. 1997) (holding that, in regard to the denial

of relief in habeas corpus actions, the scope of appellate review is limited to the issues on which
a certificate of appealability is granted).
See 28 U.S.C. §2253(c)(3) ("The certificate of appealability. . . shall indicate which specific
issue or issues satisf' the showing required[.]"); see also United States v. Kimler, 150 F.3d 429,
431, and n. 1 (5th Cir. 1998) (explaining it is well established that a circuit judge may address an
issue not certified by a district court if the petitioner makes (1) an explicit request, and (2) a
substantial showing of the denial of a constitutional right).
36

See 28 U.S.C. foll. §2254 Rule 11(a) ("The district court must issue or deny a certificate of
appealability when it enters a final order adverse to the applicant.").
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A certificate of appealability "may issue ... only if the applicant has made a substantial

showing of the denial of a constitutional right."37 In cases where a district court rejects a

petitioner's constitutional claims on the merits, "[t]he petitioner must demonstrate that reasonable
jurists would find the district court's assessment of the constitutional claims debatable or
wrong."38

To warrant a grant of the certificate as to claims that the district court rejects solely on

procedural grounds, the petitioner must show both "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."39

Here, Reynolds is not entitled to a certificate of appealability because reasonable jurists would not

find the Court's substantive rulings debatable; has not made a substantial showing of the denial of
a constitutional right.

CONCLUSION AND ORDERS
After carefully reviewing the record, the Court concludes that Reynolds is not entitled

relief under 28 U.S.C. § 2254. Accordingly, the Court enters the following orders:

IT IS ORDERED that Petitioner Thomas Kirk Reynolds's pro se petition for a writ of
habeas corpus pursuant to 28 U.S.C. § 2254 (ECF No. 1) is DENIED and his civil cause is

DISMISSED WITH PREJUDICE.

IT IS FURTHER ORDERED that Petitioner Thomas Kirk Reynolds is DENIED a
CERTIFICATE OF APPEALABILITY.

'
38

28 U.S.C. § 2253(c)(2); Gonzalez v. Thaler, 132 S. Ct. 641, 646 (2012).

Slack v. McDaniel, 529 U.S. 473, 484 (2000).
Id.
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IT IS FINALLY ORDERED that all pending motions are DENIED AS MOOT.
SO ORDERED.

SIGNED this 23 day of October, 2017.

DA

B1O

S

SENIOR tNITED STATES DISTRICT JUDGE