Malchi v. Thaler

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 99-40388

DOBBER GRAHAM MALCHI,

Petitioner-Appellee,

VERSUS

RICK THALER, Warden,

Texas Department of Criminal Justice,

Respondent-Appellant.

Appeal from the United States District Court

for the Eastern District of Texas

May 23, 2000

Before WIENER, BENAVIDES and PARKER, Circuit Judges.

ROBERT M. PARKER, Circuit Judge:

Rick Thaler, Warden of the Telford Unit of the Texas

Department of Criminal Justice, Institutional Division (“Warden”),

appeals the district court’s grant of habeas corpus relief to

Dobber Graham Malchi, Texas state prisoner # 675956. We reverse.

I. FACTS AND PROCEDURAL HISTORY

Malchi filed a petition for habeas corpus challenging a prison

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disciplinary decision finding him guilty of possession of a box of

stolen envelopes and the resulting penalty of 30-day loss of

commissary privileges, 30-day cell restriction and the reduction of

his good-time-earning status from S-3 (state approved trustee-3) to

L-1 (line one).

The magistrate judge obtained a tape of the prison

disciplinary hearing, held June 17, 1997, from which he gleaned the

following facts. On June 11, 1997, Malchi, who worked at the Unit

Law Library, left work at approximately 2:25 p.m. to return to his

dorm. About an hour later, inmate Mark Chance, a fellow law

library worker, asked petitioner to help him carry some books back

from the law library. Malchi agreed and obtained a pass from the

dorm officer, Nieto, for the law library where he and Chance picked

up the books. As they started back to the dorm, Officers Patman

and Nieto stopped them after receiving information that a box of

envelopes designated for indigent inmates had been stolen from the

law library. During the ensuing search, a box of envelopes was

found on another inmate1, but no contraband was found on Malchi.

Malchi was then escorted to his living area and his personal items

were searched. Ten envelopes for indigent inmates were discovered

during the search. Officer McLilly wrote a disciplinary report

charging petitioner with possession of contraband, described as “a

box of indigent state envelopes.”

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The magistrate noted that the testimony did not make it clear

whether the envelopes were found on Chance or some other inmate.

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The evidence showed that from January 27, 1997, when he began

receiving indigent inmate supplies on the Telford Unit, to June 11,

1997, Malchi received sixty-five business envelopes and mailed

sixty-eight. Malchi had a surplus of three envelopes, plus the ten

that were found in his cell, which he either received as contraband

or, as he claimed in the disciplinary hearing, bought in the

commissary during the prior six-month period. Concerning the

specific envelopes that were the subject of the disciplinary

charge, Malchi received ten envelopes from indigent inmate supplies

on June 3, 1997 and mailed out nine envelopes between June 3, 1997

and June 11, 1997. Thus, the evidence indicates that at least one

of the ten envelopes in question was legitimately in Malchi’s

possession. Malchi was found guilty of the charge by the

Disciplinary Hearing Officer.2

The magistrate judge determined that the findings of the

disciplinary officer were based on flawed analysis and that there

were no facts that would support the finding that Malchi was found

in possession of a box of stolen envelopes. The magistrate judge

recommended that the habeas petition be granted and that Malchi’s

time-earning status and good-time credits be restored.

The Warden filed objections to the recommendation arguing that

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The Disciplinary Hearing Officer erroneously included writ

envelopes in his calculations, made mathematical errors, and

considered only those envelopes received and sent after March 1,

1997 in reaching the conclusion that Malchi had thirty-one

unaccounted for envelopes.

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the disciplinary officer had made credibility determinations that

the magistrate judge was not allowed to second guess on the basis

of a cold record.

The district court overruled the Warden’s objections, finding

that it was apparent from the face of the record that Malchi did

not possess a box of envelopes, that the disciplinary decision was

arbitrary and capricious and that the hearing did not meet the

requirements of minimal due process. The district court granted

the habeas writ and ordered the respondent to restore to Malchi his

time-earning status and all lost good time resulting from the

disciplinary conviction challenged in this case. The Warden filed

a timely notice of appeal.

II. ANALYSIS

A. Controlling law and standard of review

The magistrate judge characterized Malchi’s petition as

arising under 28 U.S.C. § 2241. However, Malchi is alleging that

the disciplinary action resulted in a change in his good-time-

earning status which extended the date for his release on mandatory

supervision. State prisoners who allege that they were improperly

denied good-conduct credit that, if restored, would have resulted

in their immediate or sooner release from prison, fall under §

2254. See Preiser v. Rodriguez, 411 U.S. 475, 487 (1973); see also

McGary v. Scott, 27 F.3d 181, 183 (5th Cir. 1994)(petition alleging

the improper denial of good-time credits arose under § 2254 and was

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subject to the Rules Governing § 2254 cases); Story v. Collins, 920

F.2d 1247-51 (5th Cir. 1991). Thus, Malchi’s petition arises under

§ 2254 rather than § 2241. A certificate of appealability is not

required because a representative of the state is appealing the

district court’s grant of habeas relief. See FED. R. APP. P.

22(b)(3). We review the district court’s findings of fact for

clear error and decide issues of law de novo. See Clark v. Scott,

70 F.3d 386, 388 (5th Cir. 1995).

B. Protected Liberty Interest in Mandatory Supervision

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.” Orellana v. Kyle, 65 F.3d 29, 31 (5th Cir.

1995)(internal quotations and citation omitted). Malchi’s habeas

action is bottomed on his claim that the reduction in his good-

time-earning status imposed as a result of the prison disciplinary

proceeding implicates the Due Process Clause because it delayed his

release under Texas’s mandatory supervision law.

Prisoners may become eligible for release under Texas law on

parole or under a mandatory supervised release program. See

Madison v. Parker, 104 F.3d 765, 768 (5th Cir. 1997).3 “Parole” is

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Madison was an appeal from the dismissal of a prisoner’s 42

U.S.C. § 1983 suit, rather than a habeas opinion. Subsequent to

Madison, this court held that a prisoner must bring a habeas action

rather than a § 1983 suit to recover good-time credits lost in a

disciplinary hearing. See Clarke v. Stalder, 154 F.3d 186, 189

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the “discretionary and conditional release of an eligible prisoner

. . . [who] may serve the remainder of his sentence under the

supervision and control of the pardons and paroles division.” Id.

“Mandatory supervision” is the “release of an eligible prisoner .

. . so that the prisoner may serve the remainder of his sentence

not on parole, but under the supervision and control of the pardons

and paroles division.” Id.

Because it is entirely speculative whether a prisoner will be

released on parole, the court has determined “that there is no

constitutional expectancy of parole in Texas.” Id. at 768.

Therefore, any delay in Malchi’s consideration for parole cannot

support a constitutional claim.

In Madison, the court observed that former TEX. CODE CRIM. P.

ANN. art. 42.18 § 8(c)(Vernon 1996) provided for a mandatory

release if an inmate has acquired the necessary amount of good-time

credits based on his good behavior.4 See id. The court determined

that the language of the Texas statute paralleled the provisions of

the Nebraska statute interpreted in Wolff v. McDonnell, 418 U.S.

539 (1974) because both statutes bestowed mandatory sentence

reductions for good behavior and allowed for a revocation of good-

(5th Cir. 1998). Malchi therefore properly sought habeas relief in

this case.

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A Texas prisoner who is not on parole shall be released to

mandatory supervision when his calendar time plus his accrued good-

conduct time equals the maximum term to which he was sentenced.

TEX. CODE CRIM. P. ANN. art. 42.18(c)(Vernon 1996).

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time credits for misbehavior. See Madison, 104 F.3d at 768. The

Madison court noted that Wolff held that the Nebraska statute

created a liberty interest in the mandatory sentence reductions for

prisoners. See id.

Madison also noted that Sandin v. Conner, 515 U.S. 472, 481-86

(1995) did not disturb the holding in Wolff “that the loss of good

time credits under a state statute that bestowed mandatory sentence

reductions for good behavior must be accompanied by certain

procedural safeguards in order to satisfy due process.” Id. at

769. However, Madison did not directly resolve the question

whether the Texas statute authorizing mandatory supervision creates

a liberty interest because the record in that case did not reflect

whether Madison was eligible for mandatory supervision release.5

See id. We now conclude that, pursuant to the Supreme Court’s

decision in Wolff, there is a constitutional expectancy of early

release created by Texas’s mandatory supervision scheme in place

prior to September 1, 1996 for earned good time credits. See id.

A Texas prisoner does not necessarily have a constitutional

expectancy of release on a particular date. For example, it is

possible that a de minimis delay of a few days in a prisoner’s

mandatory supervision release would not give rise to a

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Some Texas inmates are not eligible for mandatory supervision

release, including those who have been convicted of certain crimes.

See Madison, 104 F.3d at 769.

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constitutionally cognizable claim. In the present case, the

evidence shows that the prison calculated that the subject

disciplinary action delayed Malchi’s release for more than six

months as a result of the change of status from S-3 to L-1. We

hold that such a delay is more than de minimis.

Texas has amended its mandatory supervision statute,6 which

provision is now codified in TEX. GOVT. CODE ANN. § 508.148-.149

(Vernon 1998). Because Malchi is serving sentences for offences

committed in 1990 and 1993, prior to the effective date of the new

statute, the change in the law does not apply to him and his

eligibility for mandatory supervision is determined under the prior

statute. See id. We posit no opinion concerning a constitutional

expectancy of early release under Texas’s revised statute.

C. Do the Sanctions “Affect the Fact or Duration of Confinement?”

The Warden contends that the sanctions imposed in Malchi’s

disciplinary proceedings do not affect the fact or duration of

Malchi’s sentence and for that reason do not state a claim for

habeas relief. See Preiser, 411 U.S. at 493 (a federal habeas

action is only available to challenge the fact or duration of

confinement, not the conditions of confinement.). Clearly,

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The new Texas Mandatory Supervision law adds a dimension of

discretion to the Mandatory Supervision scheme, providing that if

a parole panel determines that the inmate’s accrued good conduct

time is not an accurate reflection of the inmate’s potential for

rehabilitation and the inmate’s release would endanger the public,

he may not be released to mandatory supervision. See TEX. GOVT. CODE

ANN. § 508.149(b)(Vernon 1998).

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Malchi’s thirty-day loss of commissary privileges and cell

restriction do not implicate due process concerns. See id.

The Warden contends that Malchi’s reduction in good-time-

earning status likewise does not impact the fact or duration of

confinement. The Warden points out that Malchi’s disciplinary

sanction did not forfeit previously earned good-time credits.

Rather, it reduced his good-time-earning status – that is, one day

of good conduct after the disciplinary sanction was imposed earns

less credit toward release at L-1 than the same conduct earns at S-

3. Prison officials calculated that Malchi’s projected date of

release on mandatory supervision changed due to the subject

disciplinary action from November 5, 2000 to May 24, 2001. The

Warden argues that the affect of Malchi’s time-earning class on

his ultimate release date is too attenuated to invoke the

procedural guarantees of the Due Process Clause, citing Luken v.

Scott, 71 F.3d 192, 193 (5th Cir. 1995) and Carson v. Johnson, 112

F.3d 818, 821 (5th Cir. 1997). In Luken, we rejected a prisoner’s

claim that reduced opportunity for earning good-time credits evoked

a constitutionally protected liberty interest in the context of

release on parole. See 71 F.3d at 193 (citing Meachum v. Fano, 427

U.S. 215, 229 n.8 (1976)(noting that possible effect on parole

decision does not create liberty interest)). Similarly, in Carson,

we held that a prisoner has not stated a habeas corpus cause of

action when he contends that an erroneous assignment to

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administrative segregation is making him ineligible for parole.

See 112 F.3d at 821.

The Warden’s argument relies on the observation that there is

a chance that Malchi may, without reference to this or any other

disciplinary action, fail to earn the full measure of good-time

credit available at S-3 status. Thus Malchi’s projected mandatory

supervision release date is speculative. Texas law provides that

“[g]ood conduct time is a privilege and not a right.” TEX. GOVT.

CODE ANN. § 498.003(a)(Vernon 1998). Assignment to a particular

time-earning status depends on a wide variety of factors, including

how long an inmate has been in the Texas prison system, his

disciplinary record, his participation in education and work

activities and the Texas good-conduct laws in effect on his offense

date. See Texas Dept. Crim. Justice Offender Orientation Handbook,

II.D. Good Conduct Time (August 1997). For example, an inmate who

is too ill to work cannot earn the maximum amount of good-conduct

credit regardless of a flawless disciplinary record.

The Constitution does not guarantee good time credit for

satisfactory behavior while in prison. See Wolff, 418 U.S. at 557.

However, when a state creates a right to good time credit and

recognizes that its revocation is an authorized sanction for

misconduct, a prisoner’s interest therein is embraced within the

Fourteenth Amendment’s liberty concerns so as to entitle him to

those minimum procedures appropriate under the circumstances and

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required by the due process clause to insure that this state-

created right is not arbitrarily abrogated. See id.

On one hand, the Texas legislature specifically states that it

has not created a right to good conduct time and reserves to itself

the ability to assign time-earning status based on a wide variety

of considerations. On the other hand, demoting a Texas prisoner to

a lower time-earning status is an authorized sanction for

misconduct. In Sandin, the Supreme Court noted that Conner’s

confinement in disciplinary segregation would not “inevitably”

affect the duration of his sentence since the decision to release

a prisoner on parole “rests on a myriad of considerations.” 151 at

487. The Court concluded that the possibility that Conner’s

confinement in disciplinary segregation would affect when he was

ultimately released from prison “is simply too attenuated to invoke

the procedural guarantees of the Due Process Clause.” Id.

While Malchi’s time-earning status is less attenuated from his

mandatory release than release on parole, we nonetheless conclude

that the timing of Malchi’s release is too speculative to afford

him a constitutionally cognizable claim to the “right” to a

particular time-earning status, which right the Texas legislature

has specifically denied creating. See Bulger v. United States, 65

F.3d 48, 50 (5th Cir. 1995)(holding that the loss of a prison job

did not implicate the prisoner’s liberty interest even though the

prisoner lost the ability to automatically accrue good-time

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credits). We therefore conclude that the district court erred in

granting Malchi habeas corpus relief.

III. CONCLUSION

For the foregoing reasons, we reverse the district court’s

grant of habeas corpus relief.

REVERSED.

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