* Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion

should not be published and is not precedent except under the limited

circumstances set forth in 5TH CIR. R. 47.5.4.

IN THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

No. 07-10355

Summary Calendar

ALLEN GLENN THOMAS

Petitioner-Appellant

v.

NATHANIEL QUARTERMAN, DIRECTOR, TEXAS DEPARTMENT OF

CRIMINAL JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION

Respondent-Appellee

Appeal from the United States District Court

for the Northern District of Texas

USDC No. 1:06-CV-122

Before STEWART, OWEN, and SOUTHWICK, Circuit Judges.

PER CURIAM:*

Allen Glenn Thomas, Texas prisoner # 633145, is serving a 75-year

sentence for possession of cocaine with intent to distribute. In September 2005,

in disciplinary proceeding # 20050360419, Thomas was found guilty of

possessing contraband. As a result, Thomas lost 45 days of good-time credits

and 30 days of commissary privileges, he was placed on a 30-day cell restriction,

and his line-class status was reduced. Thomas then filed a 28 U.S.C. § 2254

application in federal court. In addition to challenging the disciplinary

United States Court of Appeals

Fifth Circuit

F I L E D

April 3, 2008

Charles R. Fulbruge III

Clerk
No. 07-10355

2

proceeding, Thomas’s § 2254 application raised challenges to his conviction as

well as claims of retaliation and Eighth Amendment violations.

The district court concluded that Thomas’s challenges to his conviction

were successive,Thomas had no constitutionally protected liberty interestin the

loss of commissary privileges, his cell restriction, or his change in his line-class

status, and that the loss of 45 days of good-time credits was de minimis and did

not give rise to a constitutional claim. With respect to any civil rights claims,

the court concluded that they were barred under the three-strikes provision of

28 U.S.C. § 1915(g). Thomas now seeks a certificate of appealability (COA) from

this court.

A COA may be issued only if the petitioner has “made a substantial

showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2). To meet

that standard, the movant must demonstrate that “reasonable jurists could

debate whether (or, for that matter, agree that) the petition should have been

resolved in a different manner or that the issues presented were adequate to

deserve encouragement to proceed further.” Slack v. McDaniel, 529 U.S. 473,

483-84 (2000) (internal quotation marks and citation omitted). 

Thomas first challenges the district court’s jurisdiction, arguing that

because TDCJ-CID is not a state court, jurisdiction lies in the Dallas Division of

the Northern District of Texas, where Thomas was convicted and sentenced.

Thomas’s argument is frivolous. Jurisdiction over a § 2254 application is proper

in either the district where the applicant is in custody or the district in which

the applicant was convicted and sentenced. See 28 U.S.C. § 2241(d); Carmona

v. Andrews, 357 F.3d 535, 537-38 (5th Cir. 2004). Thomas is in custody within

the Northern District of Texas. Further, he was convicted and sentenced within

the Northern District of Texas, although in a different division. The district

court plainly had jurisdiction.

With respect to the loss of commissary privileges and the cell restriction,

the loss of privileges and cell restrictions are ordinary incidents of prison life and
No. 07-10355

3

do not give rise to a protected liberty interest. See Sandin v. Conner, 515 U.S.

472, 478, 486 (1995) (disciplinary segregated confinement did not give rise to due

process claim); Madison v. Parker, 104 F.3d 765, 768 (5th Cir. 1997) (30-day

commissary and cell restriction did not implicate due process). Thomas’s

conclusory assertion of a reduction in class is unavailing as the effect of a

classification reduction on the ability to earn good-time credits is too speculative

to constitute a deprivation of a protected liberty interest. See Luken v. Scott, 71

F.3d 192, 193-94 (5th Cir. 1995). Thomas has failed to show that reasonable

jurists would debate the dismissal of these claims.

As for his claims of retaliation and Eighth Amendment violations, the

district court concluded that any claims of deprivation of civil rights were barred

because Thomas had accumulated three strikes under § 1915(g). Thomas does

not challenge the district court’s conclusion, nor does he address in any

substantive fashion the merits of his Eighth Amendment and retaliation claims.

Accordingly, he has abandoned these issues. See Hughes v. Johnson, 191 F.3d

607, 613 (5th Cir. 1999). 

However, with respect to the loss of good-time credits, Thomas has made

the requisite COA showing. When a state statute bestows mandatory sentence

reductions for good behavior, due process requirements apply to disciplinary

proceedings that result in the loss of “good time” credits. Wolff v. McDonnell,

418 U.S. 539, 556-57 (1974). Thus, if Thomas is entitled to mandatory

supervision under Texas law, due process protections may apply to the loss of his

good time credits. See Teague v. Quarterman, 482 F.3d 769, 776-77 (5th Cir.

2007). The district court concluded that a loss of 45 days was only de minimis

and did not give rise to a constitutional claim. At the time the district court

rendered its judgment, it did not have the benefit of our decision in Teague, in

which we rejected the de minimis analysis. See Teague, 482 F.3d at 778-80.

Accordingly, reasonable jurists would debate the district court’s resolution of
No. 07-10355

4

Thomas’s claim relating to the loss of his good time credits. Thus, we grant a

COA solely on that issue. We deny a COA as to all other issues. 

Further, as the district court should have the opportunity to address in the

first instance whether Thomas is eligible for mandatory supervision and, if so,

whether he was afforded due process, we vacate that portion of the judgment

denying his claim regarding good time credits and we remand this matter for

further proceedings consistent with this opinion. See Whitehead v. Johnson, 157

F.3d 384, 388 (5th Cir. 1998) (court may grant COA, vacate judgment, and

remand without requiring further briefing in appropriate case). 

As a final matter, we note that in various filings in the district court and

this court, Thomas has raised challenges to his conviction that have been

repeatedly rejected as successive, he has raised meritless challenges to the loss

of privileges that are not constitutionally protected, and he has mounted plainly

frivolous attacks on the district court’s jurisdiction. We caution Thomas that

future repetitive filings and frivolous arguments will result in the imposition of

sanctions, including monetary sanctions and limits on his access to federal

courts. 

COA GRANTED IN PART AND DENIED IN PART; JUDGMENT

VACATED IN PART AND CASE REMANDED; SANCTION WARNING

ISSUED.