Sweed v. Davis

IN THE UNITED STATES DISTRICT COURT April 08, 2020

FOR THE SOUTHERN DISTRICT OF TEXAS David J. Bradley, Clerk

HOUSTON DIVISION

JEROME SWEED, §

TDCJ #01836773, §

§

Petitioner, §

§

vs. § CIVIL ACTION NO. H-19-4146

§

LORIE DAVIS, Director, §

Texas Department of Criminal Justice - §

Correctional Institutions Division, §

§

Respondent. §

MEMORANDUM AND ORDER

State inmate Jerome Sweed has filed a petition for a writ of habeas corpus

under 28 U.S.C. § 2254 [Doc. # 1], seeking relief from a prison disciplinary

conviction entered against him while incarcerated by the Texas Department of

Criminal Justice – Correctional Institutions Division (“TDCJ”). The respondent has

filed a motion for summary judgment, arguing that the petition must be dismissed

because Sweed fails to state a claim for which federal habeas relief can be granted

[Doc. # 11]. Sweed has not filed a response and his time to do so has expired. After

reviewing all of the pleadings and the applicable law, the Court concludes that this

action must be dismissed for the reasons explained below.

I. BACKGROUND

Commitment records provided by the respondent reflect that Sweed is

currently confined in TDCJ as the result of two second-degree felony convictions

from Harris County and Brazoria County for burglary of a habitation with intent to

commit theft and burglary of a habitation [Doc. # 11-2, at 5-6].1 These records

reflect that Sweed also has a previous first-degree felony conviction from Brazos

County for burglary of a habitation [Id.]. Sweed does not challenge any of his

underlying state court convictions here. Instead, Sweed challenges the validity of a

prison disciplinary conviction entered against him at the Ferguson Unit, where he

was formerly confined before being transferred to a different facility [Doc. # 1, at

5].2

On June 12, 2019, Sweed was convicted in TDCJ Disciplinary Case No.

20190245140 of violating prison rules by attempting a “3-way phone call” [Id.]. The

record contains copies of the TDCJ Disciplinary Report and Hearing Record as well

as the Offense Report, explaining that the offense occurred when Sweed placed a

1 Unless otherwise indicated, all page numbers for cites to the record reference the

pagination inserted on each docket entry by the Court’s Electronic Case Filing (“ECF”)

system.

2 On March 18, 2020, Sweed notified the Clerk’s Office that he has been transferred

from the Ferguson Unit to the Beto Unit [Doc. # 15, at 1]. Although Sweed has not filed a

response to the pending motion for summary judgment, the certificate of service for the

respondent’s motion confirms that it was sent to the correct address of record at the time it

was filed [Doc. # 11, at 14].

call to his wife in one of the prison day rooms and then asked her to then call a third-

party “real quick” after giving her another phone number [Doc. # 10-1, at 3-4]. As

punishment, Sweed lost commissary privileges for 45 days, telephone privileges for

60 days, and visitation privileges through October 12, 2019 [Doc # 1, at 5]. He was

also assigned extra work duty and reduced in classification status from L1 to L2

[Id.]. In addition, Sweed forfeited 30 days of previously earned good-time credit

[Id.]. Sweed challenged his disciplinary conviction through the two-step

administrative grievance process, but his appeal was unsuccessful [Id. at 5-6].

Sweed now seeks federal habeas corpus relief from his disciplinary

conviction, asserting that the charges against him were “bogus” and resulted in

“falsified state documents,” referencing the TDCJ Disciplinary Hearing Report and

Record, in violation of the right to due process [Id. at 6-7]. Sweed contends further

that the charges were filed in “retaliation” for verbal and written complaints that

Sweed’s wife had made against two officials at the Ferguson Unit (Warden Jones

and Captain Howard) [Id. at 6]. The respondent maintains that the petition must be

dismissed because Sweed is not entitled to habeas relief as a matter of law under the

standard that governs prison disciplinary proceedings.

II. DISCUSSION

A. Habeas Relief is Not Available

To prevail on habeas corpus review, a petitioner must demonstrate that he is

confined “in violation of the Constitution or laws or treaties of the United States.”

28 U.S.C. §§ 2241(c)(3), 2254(a). In the disciplinary hearing context, a prisoner’s

constitutional rights are governed by the Due Process Clause of the Fourteenth

Amendment to the United States Constitution. See Wolff v. McDonnell, 418 U.S.

539, 557 (1974). However, prisoners charged with institutional rules violations are

entitled to rights under the Due Process Clause only when the disciplinary action

may result in a sanction that will infringe upon a constitutionally protected liberty

interest. See Sandin v. Conner, 515 U.S. 472, 484 (1995) (observing that state-

created liberty interests protected by the Due Process Clause are limited to

punishments which impose “atypical and significant hardship on the inmate in

relation to the ordinary incidents of prison life”).

It is well established that a Texas inmate can demonstrate a due process

violation in connection with a prison disciplinary conviction only if he first satisfies

the following criteria: (1) he must be eligible for early release on the form of parole

known as mandatory supervision; and (2) the disciplinary conviction at issue must

have resulted in a loss of previously earned good-time credit. See Malchi v. Thaler,

211 F.3d 953, 957-58 (5th Cir. 2000) (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). Although Sweed forfeited

good-time credit as the result of his disciplinary conviction, he cannot establish a

due process violation in this instance. In that regard, records confirm that he has a

prior state court conviction for first-degree burglary of a habitation [Doc. # 11-2, at

5-6], which excludes him from eligibility for mandatory supervision under the

governing Texas statute. See Tex. Gov’t Code § 508.149(a)(13) (excluding from

eligibility for mandatory supervision inmates who have been convicted of certain

enumerated offenses, including first-degree felony burglary of a habitation).

Without eligibility for mandatory supervision, Sweed cannot show that his good-

time credit was forfeited in violation of due process. See Malchi, 211 F.3d at 957-

58.

None of the other punishments imposed at Sweed’s disciplinary proceeding

implicate due process concerns. To the extent that Sweed lost privileges and was

assigned additional work duties, these sanctions are “merely changes in the

conditions of [an inmate’s] confinement” that do not “represent the type of atypical,

significant deprivation in which a state might create a liberty interest.” Madison v.

Parker, 104 F.3d 765, 768 (5th Cir. 1997). Likewise, the Fifth Circuit has held that

reductions in a prisoner’s classification status and the potential impact on good-time

credit earning ability are not protected by the Due Process Clause. See Malchi, 211

F.3d at 958; Luken v. Scott, 71 F.3d 192, 193 (5th Cir. 1995). Absent a showing that

Sweed was subjected to punishment in violation of the Constitution or laws of the

United States, federal habeas corpus relief is not available. See Orellana v. Kyle, 65

F.3d 29, 31 (5th Cir. 1995). Therefore, the respondent’s motion for summary

judgment on this issue will be granted.

B. Retaliation Claims

The respondent has raised additional arguments about Sweed’s retaliation

claim, in which Sweed alleges that the disciplinary charges at issue were filed against

him as part of a pattern of harassment or retaliation by officials at the Ferguson Unit.3

The Court does not reach these arguments, however, because claims of improper

retaliation by correctional officers and officials concern conditions of confinement,

which must be challenged in a civil action under 42 U.S.C. § 1983. See, e.g., Woods

v. Smith, 60 F.3d 1161, 1164 (5th Cir. 1995). Civil rights claims are not actionable

in a federal habeas proceeding because the writ of habeas corpus provides a remedy

only for prisoners challenging the “fact or duration” of confinement and is not

properly used as an avenue for relief from conditions of confinement. Preiser v.

Rodriguez, 411 U.S. 475, 500 (1973).

3 In support of this claim, Sweed has submitted a cover letter and supplemental

exhibits, consisting of correspondence written by his wife to prison officials and records

from another disciplinary case that was filed against Sweed at the Ferguson Unit [Doc. # 6,

at 1-46].

The Fifth Circuit has counseled that if a prisoner’s initial pleading contains

both habeas and civil rights claims under 42 U.S.C. § 1983, the district court should

separate the claims for consideration. See Orellana v. Kyle, 65 F.3d 29, 31 (5th Cir.

1995) (citing Serio v. Members of La. State Bd. of Pardons, 821 F.2d 1112, 1119

(5th Cir. 1987)). It is not appropriate, however, to consider civil rights claims in a

habeas proceeding because of requirements imposed by the Prison Litigation Reform

Act (“PLRA”). Unlike habeas proceedings, the PLRA requires prisoners asserting

civil rights claims under § 1983 to pay the filing fee for a civil action even if they

receive leave to proceed in forma pauperis.4 See 28 U.S.C. § 1915(b). In addition,

a court is required by the PLRA to review the pleadings and “dismiss the case” if it

determines that the action is (i) frivolous or malicious; (ii) fails to state a claim on

which relief may be granted; or (iii) seeks monetary relief against a defendant who

is immune from such relief. See 28 U.S.C. § 1915(e)(2)(B); see also 28 U.S.C.

§ 1915A(b) (setting forth the same grounds). A prisoner who incurs three dismissals

or “strikes” loses his eligibility to proceed in forma pauperis and may be barred from

4 The filing fee for a federal habeas proceeding is $5.00 and the fee for a civil action

is $350.00, plus a $50.00 administrative fee. See 28 U.S.C. 1914(a)-(b). If a prisoner

qualifies for leave to proceed in forma pauperis, the $50.00 administrative fee is waived,

but he must still pay the $350.00 filing fee by installment from his inmate trust fund

account. See 28 U.S.C. § 1915(b). Sweed has not requested leave to proceed without

prepayment of the filing fee in a civil action or provided the documentation required for

purposes of establishing indigence by the PLRA. See 28 U.S.C. § 1915(a)(2).

filing suit unless he can show that he is under imminent danger of serious physical

injury. See 28 U.S.C. § 1915(g).

Accordingly, the Court declines to convert this habeas proceeding into a civil

action under 42 U.S.C. § 1983 or allow the petitioner to evade the PLRA, which was

enacted, in part, to prevent prisoners from abusing the privilege of proceeding in

forma pauperis. See Adepegba v. Hammons, 103 F.3d 383, 387 (5th Cir. 1996),

abrogated on other grounds by Coleman v. Tollefson, 135 S. Ct. 1759, 1762-63

(2015). See also Brown v. Megg, 857 F.3d 287, 292 (5th Cir. 2017) (observing that

a strike may be imposed under the PLRA only where the entire “action” is dismissed

for one of the grounds listed in 28 U.S.C. § 1915(g)). To the extent that Sweed has

attempted to raise claims of retaliation that are not actionable in a habeas corpus

proceeding, the Court will dismiss those claims without prejudice to re-filing them

in a separate civil rights action that is governed by 42 U.S.C. § 1983 and subject to

provisions found in the PLRA.

III. CERTIFICATE OF APPEALABILITY

Rule 11 of the Rules Governing Section 2254 Cases requires a district court

to issue or deny a certificate of appealability when entering a final order that is

adverse to the petitioner. A certificate of appealability will not issue unless the

petitioner makes “a substantial showing of the denial of a constitutional right,” 28

U.S.C. § 2253(c)(2), which requires a petitioner to demonstrate “‘that reasonable

jurists would find the district court’s assessment of the constitutional claims

debatable or wrong.’” Tennard v. Dretke, 542 U.S. 274, 282 (2004) (quoting Slack

v. McDaniel, 529 U.S. 473, 484 (2000)). Because the petition in this case does not

satisfy this standard, a certificate of appealability will not issue.

IV. CONCLUSION AND ORDER

Based on the foregoing, the Court ORDERS as follows:

1. The respondent’s motion for summary judgment [Doc. # 11] is

GRANTED, in part, with respect to the petitioner’s request for federal

habeas relief.

2. The petition for a writ of habeas corpus filed by Jerome Sweed [Doc.

# 1] is DENIED, and this habeas proceeding is DISMISSED with

prejudice for failure to state a claim upon which federal habeas relief

may be granted.

3. Sweed’s retaliation claim is DISMISSED without prejudice to re-

filing in a separate civil action governed by 42 U.S.C. § 1983 and the

Prison Litigation Reform Act.

4. A certificate of appealability is DENIED.

The Clerk will provide a copy of this order to the parties.

SIGNED at Houston, Texas on April 8, 2020.

_____________________________________

NANCY F. ATLAS

SENIOR UNITED STATES DISTRICT JUDGE