The opinion
IN THE UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF ARKANSAS
CENTRAL DIVISION
GARY LEWIS BROWN PETITIONER
v. NO. 4:23-cv-00287-BRW-PSH
DEXTER PAYNE RESPONDENT
FINDINGS AND RECOMMENDATION
INSTRUCTIONS
The following proposed Recommendation has been sent to United
States District Judge Billy Roy Wilson. You may file written objections to
all or part of this Recommendation. If you do so, those objections must:
(1) specifically explain the factual and/or legal basis for your objection,
and (2) be received by the Clerk of this Court within fourteen (14) days of
this Recommendation. By not objecting, you may waive the right to appeal
questions of fact.
DISPOSITION
In this case, filed pursuant to 28 U.S.C. 2254, petitioner Gary Lewis
Brown (“Brown”) challenges the disciplinary he received on August 26,
2022. It is recommended that this case be dismissed without prejudice for
a lack of jurisdiction. His claims are potentially viable conditions-of-
confinement claims and outside the scope of 28 U.S.C. 2254. He was given
the opportunity to convert this case to one pursuant to 42 U.S.C. 1983, but
he failed to take advantage of that opportunity.
The record reflects that following the escape of Arkansas Division of
Correction (“ADC”) inmate Samuel Hartman, Brown was charged with
multiple rule violations arising from his part in the escape. On August 26,
2022, Brown was convicted of violating rule 01-1, banding
together/demonstration, which arose from the disruption to the prison’s
operation caused by the escape. He was also convicted of violating rule 13-
2, lying to a staff member, which arose from his statements during a post-
escape interview in which his statements were subjected to a computer
voice stress analysis. He lost his commissary, telephone, and visitation
privileges for sixty days; was sentenced to thirty days of punitive isolation;
forfeited a year of good-time credits; and was reduced in class.
Brown began this case by filing a petition for writ of habeas corpus
pursuant to 28 U.S.C. 2254. In the petition, he maintained that his right to
due process was violated because the disciplinary is supported by no
credible evidence and his conviction was obtained in violation of ADC
policies. He asked that the disciplinary be reversed, his good-time credits
be restored, and his transfer eligibility date be recalculated.
Respondent Dexter Payne (“Payne”) filed a response and asked that
the petition be dismissed. Payne maintained that the petition should be
dismissed because Brown’s claims are not cognizable in a proceeding
pursuant to 28 U.S.C. 2254. Specifically, Payne alleged the following:
... The habeas statute only provides a remedy for petitioners
who challenge the fact or length of their confinement, while
claims challenging the circumstances of a petitioner’s
confinement may be brought in an action under [42] U.S.C.
1983. [Citation omitted]. Here, suspension of Brown’s phone,
commissary, and visitation privileges, and the imposition of 30
days’ punitive isolation, did not change the fact or duration of
his confinement. Those claims, accordingly, are not cognizable
in federal habeas.
As to Brown’s claims regarding classification and good-
time, under Arkansas’s parole statutes, “meritorious good time
does not apply to reduce the length of a sentence,” but only
affects an inmate’s transfer eligibility date. McKinnon v. Norris,
231 S.W.3d 725, 729 (Ark. 2006). As such, neither the loss of
good time credits nor a change in the rate that the inmate
accrues them affects the fact or duration of his confinement.
...
See Docket Entry 6 at CM/ECF 2-3. Payne additionally maintained that the
petition should be dismissed because Brown’s claims do not implicate a
protected liberty interest and, alternatively, his claims are without merit.
Brown filed a reply and maintained, inter alia, that his conviction for
the disciplinary was not supported by any credible evidence but was built
solely upon an interpretation of the computer voice stress analysis. He also
noted that the charging document did not indicate how he personally
disrupted the prison’s operation or to whom he might have lied.
The undersigned reviewed the case at bar and found that it is not
unlike Crockett v. Kelley, No. 5:18-cv-00210-JM-JTR, 2019 WL 1590947
(E.D. Ark. 2019), report and recommendation adopted, No. 5:18-cv-00210-
JM, 2019 WL 1590588 (E.D. Ark. 2019). In that case, Crockett was convicted
of a disciplinary. He lost his commissary, telephone, and visitation
privileges; was sentenced to punitive isolation; forfeited good-time
credits; and was reduced in class. He challenged the disciplinary by filing
a petition pursuant to 28 U.S.C. 2254. In the petition, he maintained, in
part, that the disciplinary proceeding failed to comport with the
requirements of due process. United States District Judge James M. Moody,
Jr., adopted a report and recommendation and dismissed the petition. He
did so, in part, for the following reason:
A prisoner may maintain a procedural due process
challenge to a prison disciplinary proceeding only if he is
deemed to have a liberty interest sufficient to trigger the
protections of the Fourteenth Amendment. Sandin v. Conner,
515 U.S. 472, 485-86 (1995); Phillips v. Norris, 320 F.3d 844,
847 (8th Cir. 2002). Liberty interests arising from state law are
limited to “freedom from restraint” which “impose[s] atypical
and significant hardship on the inmate in relation to the
ordinary incidents of prison life,” or to actions which
“inevitably affect the duration of [a prisoner's] sentence.”
Sandin v. Connor, 515 U.S. 472, 484, 487 (1995).
In a habeas action, “[i]f the prisoner is not challenging
the validity of his conviction or the length of his detention, such
as loss of good time, then a writ of habeas corpus is not the
proper remedy.” Kruger v. Erickson, 77 F.3d 1071, 1073 (8th
Cir. 1996) (per curiam) (citing Preiser v. Rodriguez, 411 U.S.
475, 499 (1983)) (emphasis added); see also Spencer v. Haynes,
774 F.3d 467, 469-70 (8th Cir. 2014) (citing and applying
Kruger). Thus, for Crockett's claims arising from the disciplinary
proceeding to implicate a “liberty interest” capable of making
them actionable under 2254, he must establish that the loss of
500 days of good-time credit served to lengthen his sentence.
As the Court noted in Sandin, the “Due Process Clause itself
does not create a liberty interest in credit for good behavior.”
Id. at 477. Instead, a court must look to the specific state
statute in question to determine whether a liberty interest in
good-time credit has been created by the state. Id.
Arkansas statutory law establishing good-time credit
“plainly states ‘[m]eritorious good time will not be applied to
reduce the length of a sentence,’” but instead impacts an
inmate's “transfer eligibility date.” McKinnon v. Norris, 366 Ark.
404, 408, 231 S.W.3d 725, 729 (Ark. 2006) (quoting Ark. Code
Ann. 12-29-201(d) and (e)(1)) (emphasis added). In McKinnon,
the Arkansas Supreme Court rejected the state habeas
petitioner's claim that his prison sentence had been extended
unlawfully because, following a prison disciplinary, his good-
time credits were forfeited and his ability to earn future credits
was eliminated. According to the Court, “Arkansas has not
created a liberty interest in good time under the constitutional
analysis in Wolff v. McDonnell,” (emphasis added). Id. at 408-
409, 231 S.W.3d at 730.
The Court's legal conclusion in McKinnon is not binding on
federal courts. However, courts in the Eastern District of
Arkansas have reached the same conclusion under federal law.
As United States Magistrate Judge Beth Deere reasoned in a
Recommendation adopted by United States District Judge Leon
Holmes:
Instead of reducing the term of a prisoner's
sentence, Arkansas's good-time statute reduces the
time until the inmate is eligible for transfer, i.e.,
consideration of parole. Persechini v. Callaway, 651
F.3d 802, 808 (8th Cir. 2011).
There is clearly a difference between being in
the free world under supervision (parole) and being
confined in a prison 24-hours a day, seven days a
week, even though in both circumstances the
inmate is serving his or her sentence. This stark
difference is recognized by an inmate's liberty
interest in the revocation of parole. But the
Supreme Court has long noted the distinction
between parole release and parole revocation.
Greenholtz v. Inmates of the Neb. Penal and Corr.
Complex, 442 U.S. 1, 99 S.Ct. 2100 (1979). The
crucial difference is “between being deprived of a
liberty one has, as in parole, and being denied a
conditional liberty that one desires.” Id. at 9. Under
Arkansas law, good-conduct time reduces the length
of time until an inmate is eligible for parole, but it
does not reduce the length of the sentence itself.
See Ark. Code Ann. 16-93-614 and Ark. Code Ann.
12-29-201(d).
In sum, Mr. Roberts has a liberty interest in
release at the expiration of his sentence; he does
not have a liberty interest in the possibility of a
conditional release prior to the expiration of his
sentence. See Swarthout v. Cooke, 131 S. Ct. 859,
862 (2011) (the federal constitution does not confer
a right to be conditionally released before the
expiration of a valid sentence).
Roberts v. Hobbs, Case No. 5:14-cv-00044-JLH-BD, 2014 WL
1345341, 2-3 (E.D. Ark. April 4, 2014), certificate of
appealability denied, Case No. 14-1930 (8th Cir. Aug. 12, 2014).
Thus, the Court concludes that the legal analysis in Roberts and
McKinnon are persuasive and squarely support the denial of
Crockett's claims.
...
Because Crockett has failed to show that the loss of good-
time credits will have any impact on the length of his sentence,
his claim should be denied.
See Id. at 2019 WL 1590947, 2-4 (emphasis and footnotes omitted). See
also Williamson v. Payne, No. 4:22-cv-01046-LPR-ERE, 2022 WL 19409973
(E.D. Ark. Nov. 21, 2022), report and recommendation adopted, No. 4:22-
cv-01046-LPR, 2023 WL 2895886 (E.D. Ark. Apr. 11, 2023); Williams v.
Payne, No. 4:21-cv-00577-JJV, 2021 WL 5183640 (E.D. Ark. Nov. 8, 2021).
Judge Moody also found that Crockett’s challenges to his loss of
commissary, telephone, and visitation privileges, sentence to punitive
isolation, and reduction in class were outside the scope of 28 U.S.C. 2254.
On the basis of Crockett, and given Williamson and Williams, the
undersigned found that Brown’s claims are potentially viable conditions-
of-confinement claims and outside the scope of 28 U.S.C. 2254. They can
only be raised in a complaint pursuant to 42 U.S.C. 1983. In accordance
with Spencer v. Haynes, 774 F.3d 467 (8th Cir. 2014), Brown was notified
of that construction of his claims and given up to, and including, October
6, 2023, to convert this case from one pursuant to 28 U.S.C. 2254 to one
pursuant to 42 U.S.C. 1983.1 He was warned that in the event he declined
to consent to convert this case to one pursuant to 42 U.S.C. 1983, or
otherwise failed to give notice of his desire to convert this case to one
pursuant to 42 U.S.C. 1983, the undersigned would recommend that this
case be dismissed.
October 6, 2023, has now come and gone, and Brown has filed
nothing. By filing nothing, he has not consented to convert this case to one
pursuant to 42 U.S.C. 1983.
1 In Spencer v. Haynes, the United States Court of Appeals for the Eighth Circuit
held that, where a petitioner has improperly raised “potentially viable” conditions-of-
confinement claims in a habeas corpus proceeding, the court should recharacterize the
claims into the correct procedural vehicle instead of dismissing the case for a lack of
jurisdiction. See Gordon v. Cain, No. 2:17-cv-00114-KGB-JTK, 2018 WL 8786163, 2, (E.D.
Ark. July 30, 2018), report and recommendation adopted, No. 2:17-cv-00114-KGB, 2019
WL 3059849 (E.D. Ark. July 11, 2019) (quoting Spencer v. Haynes, 774 F.3d at 471).
Before recharacterizing the claims, though, the court should obtain the petitioner’s
consent.
The undersigned previously found, and now again finds, that Brown’s
claims do not involve the validity of his conviction or the length of his
detention. His claims involving the loss of commissary, telephone, and
visitation privileges; assignment to punitive isolation; and reduction in
class are conditions-of-confinement claims. See Crockett v. Kelley, 2019
WL 1590947, 2 n.4, report and recommendation adopted, 2019 WL
1590588. See also Croston v. Payne, No. 4:22-cv-00616-LPR-JJV, 2022 WL
18106996 (Aug. 23, 2022), report and recommendation adopted, No. 4:22-
cv-00616-LPR, 2023 WL 23806 (Jan. 3, 2023). Habeas corpus relief may be
available for the loss of good-time credits, but such relief is not available
here because Brown does not have a liberty interest in the possibility of his
conditional release prior to the expiration of his sentence. To the extent
he lost good-time credits as a result of the disciplinary, the loss of the
credits did not lengthen his sentence. His claims are potentially viable
conditions-of-confinement claims and outside the scope of 28 U.S.C. 2254.
Given the construction of Brown’s claims, and given his failure to
consent to convert this case from one pursuant to 28 U.S.C. 2254 to one
pursuant to 42 U.S.C. 1983, it is recommended that the case be dismissed
without prejudice for a lack of jurisdiction. Judgment should be entered
for Payne.
DATED this 11 day of October, 2023.
UNITED STATES Jt RATE JUDGE
10