Reynolds v. Davis, Director, TDCJ-CID

Filing 19

MEMORANDUM OPINION AND ORDER. Signed by Judge Kathleen Cardone. (dc)

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
EL PASO DIVISION
THOMAS KIRK REYNOLDS,
Petitioner,
v.
LORIE DAVIS,
Director, Texas Department of
Criminal Justice, Correctional
Institutions Division,
Respondent.

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EP-17-CV-300-KC

MEMORANDUM OPINION AND ORDER
Petitioner Thomas Kirk Reynolds, TDCJ Number 1536201, challenges a prison
disciplinary proceeding through a pro se petition for writ of habeas corpus under 28 U.S.C. § 2254
(ECF No. 1). Respondent Lorie Davis counters, because he lost no good-time credit, Reynolds
fails to state a claim entitling him to relief.1 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 aggravated assault in cause number 20010D00659 and engaging in organized
criminal activity in cause number 20000D05772.2 They further show the trial court assessed

1

Resp’t’s Answer 1, ECF No. 13.

2

Id., Ex. A (Commitment Inquiry).
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punishment at seventeen years’ imprisonment for the aggravated assault and ten years’
imprisonment for engaging in organized criminal activity. Based on the mandatory supervision
statute in effect at the time Reynolds committed the offenses, he is not eligible for release to
mandatory supervision.3
On February 28, 2017, Reynolds received notification he was charged in disciplinary case
number 20170190551 with attempting to establish an inappropriate relationship, a violation of the
disciplinary rules and procedures for state prisoners.4 On March 1, 2017, Reynolds appeared at a
disciplinary proceeding with his counsel substitute and pleaded not guilty. After reviewing the
charging officer’s report and Reynolds’s personal statement, the disciplinary hearing officer found
him guilty as charged and assessed his punishment at losing 15 days’ recreation privileges and
remaining at line 3.5 Reynolds submitted a Step 1 grievance to appeal this disciplinary
proceeding, initiating grievance number 2017100068. Prison officials denied this grievance.
Reynolds then submitted a Step 2 grievance, appealing the outcome of his Step 1 grievance, but
prison officials also denied it. Reynolds filed the instant federal petition on June 22, 2017.
In his petition, Reynolds asserts four due process violations. First, he proclaims his actual
innocence. Second, he suggests the investigation was not impartial. Third, he maintains his
counsel substitute was deficient. Finally, he asserts the evidence was insufficient to support the
charge against him.

3

Id. at 4–6 (citing Tex. Gov’t Code § 508.149(a)(7) (West 2001)).

4

Id., Ex. B (TDCJ Disciplinary Report and Hearing Record).

5

Id.
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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.6 “[T]he Due Process
Clause does not protect every change in the conditions of confinement having a substantial adverse
impact on the prisoner.”7 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.8 These protected liberty interests can
emanate from either the Due Process Clause itself or from state law.9 But the range of
constitutionally protected liberty interests is a “narrow” one.10 Only those state-created
substantive interests which “inevitably affect the duration of [a prisoner’s] sentence” may qualify
for constitutional protection under the Due Process Clause.11
In Texas, only those inmates who are eligible for mandatory supervision have a
constitutional expectancy of early release.12 It follows that Texas prisoners cannot demonstrate

6

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

7

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

8

Id. at 483–84.

9

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

10

Orellana v. Kyle, 65 F.3d 29, 31–32 (5th Cir. 1995) (citing Sandin).

11

Sandin, 515 U.S. at 487; see also Kyle, 65 F.3d at 31–32.

12

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).
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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.13
ANALYSIS
As the Court noted above, Reynolds is not eligible for release to mandatory supervision
based on the mandatory supervision statute in effect at the time he committed his holding
offenses.14 Moreover, he did not lose credit for good conduct.15
To the extent Reynolds challenges the loss of recreation, such punishment does not pose an
“atypical” or “significant hardship” beyond “the ordinary incidents of prison life.”16 Rather, the
punishment constitutes a change in the conditions of Reynolds’s confinement and does not
implicate the protections afforded by the Due Process Clause.17
To the extent Reynolds challenges remaining at line 3, the Fifth Circuit has held that even a
reduction in a prisoner’s time-earning status, and the potential impact of the reduction on his
good-time credit earning ability, is too attenuated from the prisoner’s ultimate release date to

13

Malchi, 211 F.3d at 956–59 (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).
14

Resp’t’s Answer 4–6 (citing Tex. Gov’t Code § 508.149(a)(7) (West 2001)).

15

Id., Ex. B (TDCJ Disciplinary Report and Hearing Record).

16

Sandin, 515 U.S. at 484.

17

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
that thirty-day commissary and cell restrictions does not implicate due process concerns).
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invoke the procedural guarantees of the Due Process Clause.18 Furthermore, a change in the
conditions of a prisoner’s confinement resulting from a reduction in his custody classification do
not affect the duration or fact of his confinement and do not constitute atypical, significant
hardships going beyond the ordinary incidents of prison life.19 Keeping Reynolds at line 3 would
not, therefore, implicate due process concerns.
Because the sanctions assessed against Reynolds do not implicate a protected 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.20 As a result, Reynolds fails to state a claim that 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.”21 Further, appellate review of a habeas
petition is limited to the issues on which a certificate of appealability is granted.22

In other

words, a certificate of appealability is granted or denied on an issue-by-issue basis, thereby
18

Malchi, 211 F.3d at 958–59; Luken v. Scott, 71 F.3d 192, 193 (5th Cir. 1995); Neals v.
Norwood, 59 F.3d 530, 533 (5th Cir. 1995).
19

Madison, 104 F.3d at 768; Malchi, 211 F.3d at 958 (citing Preiser v. Rodriguez, 411 U.S. 475,
493 (1973)).
20

See Kyle, 65 F.3d at 31; Hilliard v. Board of Pardons and Paroles, 759 F.2d 1190, 1192 (5th
Cir. 1985).
21

28 U.S.C. ' 2253(c)(1) (2012).

22

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).
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limiting appellate review solely to those issues on which a certificate of appealability is
granted.23 Although Reynolds has not yet filed a notice of appeal, this Court must nonetheless
address whether he is entitled to a certificate of appealability.24
A certificate of appealability “may issue … only if the applicant has made a substantial
showing of the denial of a constitutional right.”25 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.”26 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.”27
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
23

See 28 U.S.C. '2253(c)(3) (AThe certificate of appealability . . . shall indicate which specific
issue or issues satisfy 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).
24

See 28 U.S.C. foll. '2254 Rule 11(a) (AThe district court must issue or deny a certificate of
appealability when it enters a final order adverse to the applicant.@).
25

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

26

Slack v. McDaniel, 529 U.S. 473, 484 (2000).

27

Id.
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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.
IT IS FINALLY ORDERED that all pending motions are DENIED AS MOOT.
SO ORDERED.
SIGNED this 19th day of October, 2017.

KATHLEEN CARDONE
UNITED STATES DISTRICT JUDGE

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