Opinion
No. 10-40681 Summary Calendar.
January 14, 2011.
Robert Hampton, Rosharon, TX, pro se.
Appeal from the United States District Court for the Southern District of Texas, USDC No. 3:10-CV-182.
Before HIGGINBOTHAM, SMITH, and HAYNES, Circuit Judges.
Robert Hampton, Texas prisoner # 760987, moves for a certificate of appealability (COA) to appeal the denial of his 28 U.S.C. § 2254 application challenging his disciplinary conviction. He contends that his liberty and property interests were implicated by the denial of procedural due process during his disciplinary hearing. He alleged that his disciplinary conviction resulted in punishment of a reduction in his time-earning class, the loss of recreation and commissary privileges for 45 days, and the forfeiture of $710 from his inmate account.
With regard to his liberty interest claims, Hampton has not shown "that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Slack v. McDaniel, 529 U.S. 473, 484, 120 S.Ct. 1595, 146 L.Ed.2d 542 (2000). With regard to Hampton's claim that the forfeiture of $710 infringed his property interests, the district court did not address the issue below; the district court did not determine whether the claim is cognizable under 42 U.S.C. § 1983 or § 2254 and, if so, whether the procedural due process requirements of Wolff v. McDonnell, 418 U.S. 539, 564-66, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), were satisfied. We therefore DENY the motion for a COA in part, GRANT the motion for a COA in part, VACATE the district court's judgment, and REMAND for the district court to consider only Hampton's claim regarding the infringement of his property interest without procedural due process. See Whitehead v. Johnson, 157 F.3d 384, 388 (5th Cir. 1998).