The opinion
March 26, 2020
David J. Bradley, Clerk
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
HOUSTON DIVISION
FRANK HENDERSON § CIVIL ACTION NO.
BROWN, § 4:19-cv-4780
(TDCJ–CID #01980921) §
Petitioner, §
§
§
vs. § JUDGE CHARLES ESKRIDGE
§
§
LORIE DAVIS, §
Respondent. §
MEMORANDUM ON DISMISSAL
Before the Court is a petition for a writ of habeas corpus under
28 USC § 2254 filed by Petitioner Frank Henderson Brown. He
challenges a disciplinary conviction imposed at the Ellis Unit of
the Texas Department of Criminal Justice—Correctional
Institutions Division. He is currently serving a sentence imposed
by a Texas state court.
The Court dismisses the petition because he has not stated
grounds warranting federal habeas relief.
1. Background
On September 17, 2019 prison officials at the Ellis Unit
conducted a disciplinary hearing in disciplinary case
20200009911. The hearing officer found Brown guilty of
possession of a tobacco product. Dkt 1 at 5. Brown’s punishment
consisted of:
o A loss of commissary privileges for forty-six days;
o A loss of recreation privileges for forty-six days;
o A reduction in custodial classification from G2 to
G4; and
o A reduction in good-time earning class status from
State-Approved Trusty (SAT) 3 to SAT 4.
On December 4, 2019 this Court received Brown’s federal
petition. Brown contends that he was denied due process and so
his conviction in the disciplinary case is void. Dkt 1.
2. Legal standard
“Federal habeas relief cannot be had ‘absent the allegation by
a plaintiff that he or she has been deprived of some right secured
to him or her by the United States Constitution or the laws of the
United States.’” Malchi v Thaler, 211 F3d 953, 957 (5th Cir 2000),
quoting Orellana v Kyle, 65 F3d 29, 31 (5th Cir 1995).
The Supreme Court has stated, “Prison disciplinary
proceedings are not a part of a criminal prosecution, and the full
panoply of rights due a defendant in such proceedings does not
apply.” Wolff v McDonnell, 418 US 539, 556 (1974). Procedural
protections in the context of prison discipline thus are not the
same as due process in the criminal law context.
The Supreme Court had historically held that the Due
Process Clause governs disciplinary proceedings where a prisoner
is threatened with a loss of good-time or the imposition of
solitary confinement. Id at 571 n 19. The Court held that inmates
must be afforded:
o Written notice of the claimed violation at least
twenty-four hours before a disciplinary hearing;
o A written statement by the fact finders as to the
evidence relied on and reasons for the disciplinary
action; and
o The right to call witnesses and present documentary
evidence where such would not be unduly
hazardous to institutional safety or correctional
goals.
Id at 564–66.
The Supreme Court subsequently limited challenges to
disciplinary cases in Sandin v Conner, 515 US 472 (1995). The
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Court referred to its discussion regarding solitary confinement in
Wolff as dicta. Id at 485-86. And it held that discipline such as
segregated confinement did not “present the type of atypical,
significant deprivation in which a State might conceivably create
a liberty interest.” Id at 486. As such, there is no “protected
liberty interest that would entitle [the inmate] to the procedural
protections set forth in Wolff.” Id at 487.
The Fifth Circuit has applied Sandin to a number of
situations. And it has held that the loss of good-time will trigger
the protection of the Constitution if a prisoner is eligible for
release on mandatory supervision. Malchi, 211 F3d at 957–58. To
the contrary, punishment consisting of placement in
administrative segregation, without more, or the loss of the
opportunity to earn good-time is not enough to trigger the
protection of the Constitution. Luken v Scott, 71 F3d 192, 193 (5th
Cir 1995). Any such loss of the opportunity to earn good-time
will not trigger the protection of the Constitution even when an
inmate is eligible for mandatory supervision. Malchi, 211 F3d at
959. Likewise, the imposition of commissary and cell restrictions
will not trigger the protection of the Constitution. Madison v
Parker, 104 F3d 765, 768 (5th Cir 1997).
3. Analysis
Brown complains about his diminished ability to earn good-
time credit. His punishment consisted of a reduction in good-
time earning class status from SAT 3 to SAT 4. Liberally
construed, he argues that this reduction in good-time earning
class status amounted to a loss of good-time credit per month.
Brown did not lose good-time credits. And his loss of the
opportunity to earn good-time does not trigger the protection of
the Constitution. The restrictions on his privileges are “merely
changes in the conditions of his confinement.” Madison, 104 F3d
at 768. As such, these restrictions “do not implicate due process
concerns.” Ibid; see also Malchi, 211 F3d at 958. These penalties
are not atypical, significant deprivations that would be actionable.
Ibid; see also Pichardo v Kinker, 73 F3d 612, 6113 (5th Cir 1996).
The Court finds that Brown’s federal petition does not
present grounds warranting habeas relief. A question remains
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whether he may appeal this dismissal of his action. Where a
district court rejects a prisoner’s constitutional claims on the
merits, to pursue appeal the applicant “must demonstrate that
reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.” Slack v McDaniel, 529
US 473, 484 (2000). A Certificate of Appealability thus requires a
substantial showing of the denial of a constitutional right.
Hernandez v Johnson, 213 F3d 243, 248 (5th Cir 2000), citing Clark
v Johnson, 202 F3d 760, 763 (5th Cir 2000), quoting 28 USC
§ 2253(c)(2).
To make a substantial showing, an applicant must
demonstrate:
o That the application involves issues that are
debatable among jurists of reason;
o That another court could resolve the issues
differently; or
o That the issues are suitable enough to deserve
encouragement to proceed further.
See Finley v Johnson, 243 F3d 215, 218 (5th Cir 2001).
The Court finds that Brown has not made the necessary
showing.
4. Conclusion
The petition for a writ of habeas corpus filed by Frank
Henderson Brown is DISMISSED WITH PREJUDICE. His challenges
to his disciplinary conviction lack merit.
The Court GRANTS the motion for extension of time to pay
filing fee. Dkt 2.
The Court DENIES as moot any other pending motions.
The Court DENIES a Certificate of Appealability.
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SO ORDERED.
Signed on March 26, 2020, at Houston, Texas.
Che 0 alache s
Hon. Charles Eskridge
United States District Judge