Posey

IN THE UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF ARKANSAS

CENTRAL DIVISION

BOBBY LEE POSEY PETITIONER

ADC #113508

VS. NO. 4:25-cv-01040-BSM-ERE

DEXTER PAYNE, Director,

Arkansas Division of Correction RESPONDENT

RECOMMENDED DISPOSITION

This Recommended Disposition (“RD”) has been sent to United States

District Judge Brian S. Miller. You may file objections if you disagree with the

findings or conclusions set out in the RD. Objections should be specific, include the

factual or legal basis for the objection, and must be filed within fourteen days. If you

do not object, you risk waiving the right to appeal questions of fact, and Judge Miller

can adopt this RD without independently reviewing the record.

I. Summary

Bobby Lee Posey, an inmate at the Randall Williams Correctional Facility

Division of the Arkansas Division of Correction (“ADC”), has filed a petition for

writ of habeas corpus under 28 U.S.C. § 2254. He asks the Court to overturn two

ADC disciplinary convictions, claiming they were obtained in violation of his right

to due process. Because it plainly appears from the face of the petition and

attachments that Mr. Posey is not entitled to federal habeas relief, his petition should

be summarily dismissed, with prejudice, pursuant to Rule 4 of the Rules Governing

Section 2254 Cases in the United States District Courts.1 In addition, because the

facts alleged fail to present a potentially viable conditions-of-confinement claim, the

Court should dismiss the case without offering Mr. Posey the opportunity to convert

this case to a civil rights action under 42 U.S.C. § 1983.

II. Background

Mr. Posey was convicted of disciplinary violations stemming from two major

disciplinaries he received on May 13 and May 24, 2025. Doc. 1 at 12-17.

The charges issued May 13 alleged out of place assignment, battery,

possession of a weapon, possession of clothing not issued or authorized by the prison

unit, and lying to a staff member.2 Id. at 12. On May 20, Mr. Posey appeared before

1 In conducting the initial review of a habeas petition required Rule 4, if “it plainly appears

from the petition and any attached exhibits that the petitioner is not entitled to relief in the district

court, the judge must dismiss the petition and direct the clerk to notify the petitioner.” As explained

in the Advisory Committee’s Note to Rule 4, “it is the duty of the court to screen out frivolous

applications and eliminate the burden that would be placed on the respondent by ordering an

unnecessary answer.”

2 The May 13 charge document (Doc. 1 at 12) alleged the following. On May 13, 2025,

Captain Natasha Odom noticed that Mr. Posey’s right eye was black and closed shut. When

questioned, Mr. Posey stated that several inmates had assaulted him that morning. Captain Odom

viewed surveillance footage showing that at 3:31 a.m., Mr. Posey and inmate Glover stood facing

each other, arguing, while inmate Reed sat on Mr. Posey’s rack. Mr. Posey and inmate Glover

began hitting each other with closed fists in the upper body areas.

While continuing to watch the video, Captain Odom observed that at 5:44 a.m., Mr. Posey

sat on his rack surrounded by several inmates, when inmate Reed grabbed him by the neck and

began striking his face several times before releasing him. Moments later, Mr. Posey, with an

unknown object in his hand, rose from his rack and chased inmate Reed to a staircase. Mr. Posey

then turned and began chasing other inmates before grabbing a mop handle and walking toward

inmate Reed. Mr. Posey and inmate Reed began to swing at each other in the dayroom area and

a disciplinary officer, who found him guilty of each charge with the exception of out

of place assignment. Id. at 13-14. Mr. Posey appealed to the Director of the ADC,

who upheld each conviction, with the exception of possession of clothing not issued

by the prison. Id.

The charges dated May 24 included banding together with other inmates for

any reason that disrupts prison operations, assault, failure to obey orders from staff,

refusing an order to leave or enter an area, out of place assignment, and creating

unnecessary noise.3 Id. at 15. On June 3, Mr. Posey appeared at a disciplinary hearing

and pleaded not guilty. Id. The hearing officer found Mr. Posey guilty of all charges,

with the exception of failing to refuse to obey an order. Id. Mr. Posey appealed, and

the ADC Director upheld each conviction, with the exception of creating

unnecessary noise. Id. at 17.

Mr. Posey received the following sanctions for his disciplinary convictions:

(1) temporary loss of commissary; phone, and visitation privileges; (2) thirty days

in punitive isolation; (3) a reduction in class preventing him from earning good time

then separated. Inmate Reed went upstairs, and Mr. Posey returned to his rack and began sweeping

when staff entered the area.

3 The charging document alleged that surveillance footage showed that on May 14, 2025,

prison staff were attempting to provide medical attention to an inmate, when a group of inmates

surrounded the scene began shouting at and threatening the officers, including Mr. Posey, who was

standing in the back of the crowd shouting treats toward staff. Doc 1 at 16.

credits for one year, until June 2026; and (4) forfeiture of 174 days of good time. Id

at 12 (May 13 disciplinary), 15 (May 24 disciplinary).

Mr. Posey argues that his disciplinary convictions were arbitrary and

capricious and violated his due process rights. He argues that he was wrongfully

convicted of possessing a weapon because ADC prison policies, rules, and

regulations required presentation of the actual weapon or a photograph or report

demonstrating that the object in question was a weapon. Id. at 5-6. He contends that

the May 24 disciplinary charges should have been dismissed as untimely. Id. at 8.

Mr. Posey argues that his disciplinary sanctions lengthen the duration of his

confinement by preventing him “to move forward towards an earlier release date.”

Id. at 9. For relief, he asks the Court to reverse his disciplinary convictions and

expunge them from his prison file.

III. Discussion

A. No Due Process Violation

“The essence of habeas corpus is an attack by a person in custody upon the

legality of that custody.” Kruger v. Erickson, 77 F.3d 1071, 1073 (8th Cir. 1996)

(citing Preiser v. Rodriguez, 411 U.S. 475, 484 (1973)). “Where petitioner seeks a

writ of habeas corpus and fails to attack the validity of his sentence or the length of

his state custody, the district court lacks the power or subject matter jurisdiction to

issue a writ.” Id.

The only aspect of Mr. Posey’s disciplinary conviction that falls within the

Court’s § 2254 subject matter jurisdiction is his loss of good-time credit. Under

Eighth Circuit precedent, a due process challenge to the loss of good time may be

pursued through a § 2254 petition for habeas relief. Blair-Bey v. Nix, 919 F.2d 1338

(8th Cir. 1990) (holding that a prisoner serving a sentence of life without parole

could challenge a loss of good-time credits under § 2254 because his sentence might

conceivably be commuted via executive clemency), cert. denied, 502 U.S. 899,

(1991); Wilson v. Lockhart, 949 F.2d 1051, 1051 (8th Cir. 1991) (holding that § 2254

provides the sole federal remedy for ADC inmate challenging his parole eligibility

date, even though a favorable decision would not guarantee an earlier release from

confinement).

However, Mr. Posey’s proposed habeas claim is not viable because his

allegations, which are assumed to be true, clearly fail to establish a violation of

federal law. See 28 U.S.C. § 2254(a) (providing that a district court can only

entertain a habeas petition filed by a person in state custody “on the ground that he

is in custody in violation of the Constitution or laws and treaties of the United

States.”).

Mr. Posey claims that his due process rights were violated. However, due

process requirements apply only where a person is “deprived of life, liberty, or

property by government action.” Phillips v. Norris, 320 F.3d 844, 846 (8th Cir.

2003). The only conceivable deprivation resulting from Mr. Posey’s disciplinary

sanctions is the loss of liberty, but to possess a liberty right protected by the Due

Process Clause, Mr. Posey must have “more than a unilateral expectation of it. He

must, instead, have a legitimate claim of entitlement to it.” Board of Regents of State

Colleges v. Roth, 408 U.S. 564, 577 (1972).

The Due Process Clause itself does not create a liberty interest in credit for

good behavior, but a state may create a liberty interest in a “shortened prison

sentence through the accumulation of credits for good behavior.” Wolff v.

McDonnell, 418 U.S. 539, 557 (1974). However, Arkansas’s statutory scheme

governing meritorious good time eliminates any possibility that Mr. Posey has a

legitimate claim of entitlement to a shortened sentence through the accumulation of

meritorious good time.

In McKinnon v. Norris, 366 Ark. 404, 408, 231 S.W.3d 725, 729 (2006), a

state habeas petitioner claimed that his loss of good time as a disciplinary sanction

amounted to the taking of a liberty interest without due process. The Supreme Court

of Arkansas disagreed, noting that the governing statute “plainly states that

‘meritorious good time will not be applied to reduce the length of a sentence,’ [but

permits] the application . . . of good time to an inmate’s transfer eligibility date.” Id.

at 408, 231 S.W.3d at 729 (quoting Ark. Code Ann. § 12-29-201(d)) and citing Ark.

Code Ann. § 12–29–201(e)(1)). Multiple federal courts in this District have likewise

concluded that Arkansas law does not create a liberty interest in the retention of

meritorious good-time credit.4

Even if Mr. Posey’s good-time credits were restored, he would have no

legitimate expectation of earlier release from prison. The Supreme Court has never

recognized a liberty interest in early release where state law leaves the decision to

the discretion of a parole board, which is the case in Arkansas. The Arkansas parole

statute provides: “The Post-Prison Transfer Board may release on parole any eligible

inmate . . . when in the board’s opinion there is a reasonable probability that the

inmate can be released without detriment to the community or himself or herself and

is able and willing to fulfill the obligations of a law-abiding citizen.” Ark. Code Ann.

§ 16-93-701(a)(1) (emphasis added).

The Arkansas Supreme Court “has repeatedly held that there is no liberty

interest in parole in Arkansas.” Wood v. Arkansas Parole Board, 2022 Ark. 30, 5,

39 S.W.3d 340, 344, (2022) (citing Null v. Ark. Parole Bd., 2019 Ark. 50, at 3, 567

4 See e.g., Brown v. Payne, No. 4:23-cv-00287-BRW-PSH, ECF No. 11, 2023 WL 6626280

(E.D. Ark. October 11, 2023), report and recommendation adopted by, No. 4:23-cv-00287-BRW,

ECF No. 12, 2023 WL 7159296 (E.D. Ark. Oct. 31, 2023); Martin v Payne, No. 4:22-cv-01271-

KGB-PSH, ECF No. 44, 2023 WL 10553148 (E.D. Ark. Aug. 4, 2023), report and

recommendation adopted by, No. 4:22-cv-01271-KGB, ECF No. 65, 2024 WL 1311411 (E.D.

Ark., Mar. 27, 2024); Crockett v. Kelley, No. 5:18-CV-00210-JM-JTR, ECF No. 16, 2019 WL

1590947 (E.D. Ark. Mar. 14, 2019), report and recommendation adopted by, No. 5:18-CV-00210-

JM, ECF No. 22, 2019 WL 1590588 (E.D. Ark. Apr. 12, 2019); Roberts v. Hobbs, No. 5:14-cv-

00044-JHL-BD, ECF Nos. 5, 11, 2014 WL 1345341 (E.D. Ark. April 4, 2014), certificate of

appealability denied, No. 14-1930 (8th Cir. Aug. 12, 2014).

S.W.3d 482, 483 (2019)). Likewise, the Eighth Circuit has held that the Arkansas

parole statutes create only a possibility of parole and confer no right to parole giving

rise to a liberty interest. Hamilton v. Brownlee, 237 Fed. Appx. 114, 115 (8th Cir.

2007) (“Arkansas parole statutes do not create a protectable liberty interest in

discretionary parole decisions, and [the plaintiff] had no protectable liberty interest

in having defendants follow their hearing policy.”).

Neither Mr. Posey’s loss of good-time credit nor his reduction in class

infringed upon a protected liberty interest, and his habeas petition should be

summarily dismissed.

B. No Potentially Viable Conditions of Confinement Claims

The Eighth Circuit has held that a pro se habeas petitioner raising a

“potentially viable” conditions-of-confinement claim should receive an opportunity

to pursue that claim if he so chooses. Spencer v. Haynes, 774 F.3d 467 (8th Cir.

2014). A viable conditions-of-confinement claim under 42 U.S.C. § 1983 requires

allegations not present here: that a person acting under color of state law subjected

Mr. Posey to a condition of confinement that violated a right secured by the federal

Constitution or law.

For reasons already explained, Mr. Posey has no liberty interest in the

retention of good-time credits or class status. In addition, neither temporary loss of

commissary and visitation privileges nor 30 days in punitive segregation constitute

deprivations capable of supporting a plausible due process claim. See Thornsberry

v. Barden, 854 F. Appx. 105 (8th Cir. 2021) (holding that time in isolation, loss of

privileges, and reclassification were insufficient to state a due process claim); Smith

v. McKinney, 954 F.3d 1075, 1082 (8th Cir. 2020) (holding that a year in punitive

segregation and deprivation commissary, phone, and visitation privileges did not

deprive prisoner of a liberty interest); Orr v. Larkins, 610 F.3d 1032, 1034 (8th Cir.

2010) (holding inmate not deprived of liberty interest during nine months in

administrative segregation); Portley-El v. Brill, 288 F.3d 1063, 1065-66 (8th Cir.

2002) (holding that inmates have no liberty interest in maintaining a particular

classification level, and thirty days in punitive segregation is not an atypical and

significant hardship infringing on a liberty interest).

None of Mr. Posey’s disciplinary sanctions deprived him of protected liberty

interest, and his pleading, if converted to a complaint under 42 U.S.C. § 1983, would

be subject to dismissal upon screening. See 28 U.S.C. § 1915A (requiring screening

and dismissal of any portion of a complaint that is frivolous, malicious, or fails to

state a claim on which relief can be granted).

IV. Conclusion

Petitioner Bobby Lee Posey has failed to state a cognizable claim for habeas

relief and has no “potentially viable” claims under § 1983.

IT IS THEREFORE RECOMMENDED that Mr. Posey’s petition for a writ of

habeas corpus (Doc. 1) be DISMISSED, WITH PREJUDICE? and the requested

relief be DENIED.

IT IS FURTHER RECOMMENDED that a Certificate of Appealability be

DENIED.°®

Dated 5 February 2026.

ing ED STATES MAGISTRATE JUDGE

>I recommend dismissing Mr. Posey’s habeas petition with prejudice because his proposed

due process claims fail for lack of a protected liberty interest and no future events or additional

factual allegations would render them viable. Knowles v. TD Ameritrade Holding Corporation, 2

F.4th 751, 758 (8th Cir. 2021) (noting that a district court may dismiss a pleading with prejudice

when amendment would be futile).

6 A Certificate of Appealability should be denied because Mr. Posey has not shown that

reasonable jurists could debate whether his claims should be resolved in a different manner or that

the issues presented are adequate to deserve encouragement to proceed further. See Miller—El v.

Cockrell, 537 U.S. 322, 336 (2003).

10