October 15, 2001.
REPORT AND RECOMMENDATION TO DENY PETITION FOR A WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY
On October 9, 2001, petitioner WAYMON JERMAYNE EVANS filed with this Court a Petition for a Writ of Habeas Corpus by a Person in State Custody challenging the result of a September 14, 2000 prison disciplinary proceeding. In his petition, petitioner advises that punishment imposed as a result of the disciplinary proceeding included 45 days recreation, commissary, cell and property restriction, 15 days solitary confinement, a reduction in line class status, and the loss of 90 days of previously earned good time credit. Petitioner answered in his petition that he is not eligible for mandatory supervised release, and also advises that in his original conviction, a finding was made that petitioner used or exhibited a deadly weapon in the commission of the crime.
To the extent, if any, petitioner is challenging the loss of recreation, commissary, or property privileges, a reprimand, an assessment of extra duty hours, or cell restriction, such claims do not present grounds for federal habeas corpus review. The Due Process Clause of the United States Constitution is not implicated by these changes in the conditions of petitioner's confinement. Madison v. Parker, 104 F.3d 765, 768 (5th Cir. 1997).
To the extent, if any, petitioner is challenging a reduction in class status, such claim does not present a proper ground for federal habeas corpus review. Due Process Clause protections are not implicated by a reduction in class status. The United States Court of Appeals for the Fifth Circuit has held that "the mere opportunity to earn good-time credits" does not constitute "a constitutionally cognizable liberty interest sufficient to trigger the protections of the Due Process Clause." Luken v. Scott, 71 F.3d 192, 193 (5th Cir. 1995), cert. denied, 116 S.Ct. 1690 (1996). Petitioner's custodial classification will not "inevitably affect the duration of his sentence." Id.
To the extent, if any, that petitioner is challenging the loss of 90 days good time credit, petitioner's claim does not present a proper ground for habeas relief. Texas law provides that good time credits apply only to eligibility for release on parole or mandatory supervision and do not affect the length of an inmate's sentence. Tex. Gov't Code Ann. § 498.003 (Vernon Supp. 1999); Ex parte Montgomery, 894 S.W.2d 324 (Tex.Crim.App. 1995). Here, petitioner is incarcerated pursuant to a conviction for aggravated robbery, which conviction specifically included a finding that petitioner used or exhibited a deadly weapon in the commission of the crime. Petitioner is therefore ineligible for mandatory supervised release. Consequently, any good time credits he has earned apply only toward his eligibility for parole. Prisoners in Texas possess no constitutionally protected right to release on parole. See Greenholtz v. Inmates of Nebraska Penal and Correctional Complex, 422 U.S. 1, 7 (1979); Madison v. Parker, 104 F.3d 765, 768-69 (5th Cir. 1997); Allison v. Kyle, 66 F.3d 71, 74 (5th Cir. 1995); Gilbertson v. Texas Board of Pardons and Paroles, 933 F.2d 74, 75 (5th Cir. 1993). Because petitioner possesses no constitutionally protected right to release on parole, and since he is ineligible for release on mandatory supervision, no constitutional violation has occurred and his claim does not provide a basis for federal habeas corpus relief. See Madison, supra.
Under Article 42.18, Section 8(c) of the Texas Code of Criminal Procedure (now Tex. Gov't Code § 508.149(a)), inmates are not eligible for release to mandatory supervision if they are serving a sentence for certain crimes. Aggravated robbery under Texas Penal Code § 29.03 is one of the listed offenses and was a listed offense at the time petitioner was convicted of aggravated assault in 1995. Further, since petitioner states that the judgment entered contained an affirmative finding of use or exhibition of a deadly weapon under Article 42.12, Section 3g(2)(a), Code of Criminal Procedure, he is ineligible for mandatory supervision.
"As a general rule, only sanctions which result in loss of good conduct time credits for inmates who are eligible for release on mandatory supervision or which otherwise directly and adversely affect release on mandatory supervision will impose upon a liberty interest." Spicer v. Collins, 9 F. Supp.2d 673, 685 (E.D. Tex. 1998) ( citing Orellana v. Kyle, 65 F.3d 29, 31-33 (5th Cir. 1995), cert. denied, 516 U.S. 1059 (1996)).
RECOMMENDATIONIt is the RECOMMENDATION of the United States Magistrate Judge to the United States District Judge that the Petition for a Writ of Habeas Corpus by a Person in State Custody filed by petitioner WAYMON JERMAYNE EVANS be DENIED.
INSTRUCTIONS FOR SERVICE and NOTIFICATION OF RIGHT TO OBJECT
The United States District Clerk is directed to send a file-marked copy of this Report and Recommendation to petitioner by certified mail, return receipt requested.
Any party who wishes to make objections to this Report and Recommendation must make such objections within fourteen (14) days after the filing thereof. See 28 U.S.C. § 636(b); Rule 8(b)(3) of the Rules Governing Section 2254 Cases in the United States District Courts; Fed.R.Civ.P. 5(b), 6(e). Any such objections shall be in writing and shall specifically identify the portions of the findings, conclusions, or recommendation to which objection is made, and set out fully the basis for each objection. Any objecting party shall file written objections with the United States District Clerk and serve a copy of such objections on all other parties. A party's failure to timely file written objections to the proposed findings, conclusions, and recommendation contained in the original Report and Recommendation shall bar him, except upon grounds of plain error, from attacking on appeal the unobjected-to proposed factual findings and legal conclusions set forth in this report and accepted by the district court. Douglass v. United Services Auto. Ass'n, 79 F.3d 1415, 1428-29 (5th Cir. 1996).
IT IS SO RECOMMENDED.