UNITED STATES DISTRICT COURT 

WESTERN DISTRICT OF TEXAS 

EL PASO DIVISION 

RAUL ROMO JR., § 

Petitioner, § 

§ 

v. § 

§ 

OFFICER FNU LINDBERG, OFFICER § 

FNU PARTIDA, CAPTAIN FNU DAVIS, § 

CAPTAIN FNU CLARK, MAJOR FNU § 

COOPER, ASSISTANT WARDEN JOHN § 

CIRONE, DOCTOR JOHN C. KEY, § 

GRIEVANCE INVESTIGATOR § 

FNU LIPSY, and GRIEVANCE § 

INVESTIGATOR FNU ROSS, § 

Respondents. § 

CIe By' 

EP-20-CV-160-FM 

MEMORANDUM OPINION AND ORDER 

Raul Romo Jr., Texas prisoner number 02095819, petitions the Court for a writ of habeas 

corpus under 28 U.S.C. § 2254. Pet'r's Pet., ECF No. 1-2. Because it plainly appears from his 

pleadings and the record that he is not entitled to relief, the Court will deny his petition. 28 u.s.c. foll. § 2254 Rule 4. The Court will additionally deny him a certificate of appealability. 

BACKGROUND AND PROCEDURAL HISTORY 

Romo claims he is serving a four-year sentence for driving while intoxicated imposed by 

the 384th Judicial District Court in El Paso in cause number 20160D0 1613. Pet'r's Pet. 2. Id. 

at 2. His sentence, according to the Texas Department of Criminal Justice, is fifteen years' 

imprisonment with a projected release date of April 3, 2031. See https://www.texastribune.org 

/library/dataltexas-prisons/inmates/raul-romo-ir/1 168374/ (last visited Sept. 9, 2020). 

But Romo does not challenge his conviction or sentence in his petition. And he does not 

specify the relief he seeks. Instead, he complains about the conditions of his confinement at the 

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Wayne Scott Unit in Brazoria County. Id. at 6-7. Specifically, he complains about the 

inadequate medical care he received after he injured his back, his work assignments, and the lack 

of responses by prison officials to his grievances. Id. He asserts similar claims in cause 

number EP-20-CV- 182-FM, which the Court transferred to the United States District Court for 

the Southern District of Texas because the claims arose during his incarceration at the Wayne 

Scott Unit, which is located in that District. See Romo v. Linberg, EP-20-CV- 182-FM, Transfer 

Order, ECF No. 2. 

Romo also challenges the disciplinary proceedings held when he failed to turn out for work 

after his back injury. Id. at 5, 7. He reports that, as a result of the disciplinary action, he lost 45 

days of recreation, 45 days of commissary, and 45 days of phone privileges. Id. at 5. In 

addition, he notes that he received a change in custody status from S3 to L3. Id. He suggests 

that the proceedings violated his due process rights. 

APPLICABLE LAW 

Federal law provides two distinct avenues for relief related to incarceration: a petition for 

writ of habeas corpus and a civil-rights action for equitable or monetary relief. Muhammad v. Close, 540 U.S. 749, 750 (2004). Habeas petitions are reserved for "[c]hallenges to the validity 

of any confinement or to particulars affecting its duration," while civil-rights actions are 

typically used to attack conditions of confinement. Id. (citing Preiser v. Rodriguez, 411 U.S. 

475, 500 (1973)). "Which statutory vehicle to use depends on the nature of the claim and the 

type of relief requested." Poree v. Collins, 866 F.3d 235, 243 (5th Cir. 2017). The "core issue" 

is "whether the prisoner challenges the 'fact or duration' of his confinement or merely the rules, 

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customs, and procedures affecting 'conditions' of confinement." Cook v. Tex. Dep 't of Crim. 

Justice Transitional Planning Dep 't, 37 F.3d 166, 168 (5th Cir. 1994). 

ANALYSIS 

A. Conditions of Confinement 

Romo first challenges the conditions of his confinement. Pet'r's Pet. 6-7. He 

complains about his medical care, his work assignments, and the lack of responses to his 

grievances. Id. 

The "sole function" of a habeas petition is to "grant relief from unlawful imprisonment or 

custody." Pierre v. United States, 525 F.2d 933, 935-36 (5th Cir. 1976). "If 'a favorable 

determination. . . would not automatically entitle [the prisoner] to accelerated release,' . . . the 

proper vehicle is a § 1983 suit." Carson v. Johnson, 112 F.3d 818, 820-21 (5th Cir. 1997) 

(quoting Orellana v. Kyle, 65 F.3d 29, 31(5th Cir. 1995) (per curiam)). 

If the Court resolves Romo's conditions-of-confinement claims in his favor, it will not 

result in his accelerated release from prison. Consequently, the Court finds that Romo's 

conditions-of-confinement claims are not cognizable under § 2254, and they must be dismissed 

for lack of subject-matter jurisdiction. 

B. Disciplinary Proceedings 

Romo also suggests prison disciplinary proceedingswhich resulted in his loss of 45 

days of recreation, commissary, and phone privileges and a reduction in custody classification 

violated his due process rights. Id. at 5, 7. 

State prisoners may petition a federal district court for relief from a prison disciplinary 

proceeding under § 2254. Preiser v. Rodriguez, 411 U.S. 475, 487 (1973). However, 

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"[f]ederal habeas relief cannot be had 'absent the allegation. . . 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.'" Maichi v. Thaler, 211 F.3d 953, 957 (5th Cir. 2000) (quoting Orellana v. Kyle, 65 

F.3d 29, 31(5th Cir. 1995) (internal quotations and citation omitted)). "The Fourteenth 

Amendment's Due Process Clause protects persons against deprivations of life, liberty, or 

property; and those who seek to invoke its procedural protection must establish that one of these 

interests is at stake." Wilkinson v. Austin, 545 U.S. 209, 221 (2005); U.S. Const. amend. XIV, § 

1. 

"[D]isciplinary conviction-commissary and recreation restrictions-do not implicate a 

liberty interest under the Due Process Clause." Payne v. Dretke, 80 F. App'x 314, 315 (5th Cir. 

2003). The loss of phone privileges does "not implicate due process concerns." Anderson v. Davis, 744 F. App'x 235, 236 (5th Cir. 2018), opinion withdrawn and superseded on reh'g, 768 

F. App'x 262 (5th Cir. 2019). And a reduction in line class status does not implicate the Due 

Process Clause. Maichi, 211 F.3d 959. 

As a result, Romo cannot met his burden of showing that he has been deprived of some 

rightin this case a liberty interestsecured to him by the United States Constitution or the 

laws of the United States. Indeed, the sanctions imposed on Romominor inconveniences 

reallyhave no impact on the fact or duration of his confinement and fail to raise a cognizable 

due-process claim. Therefore, he is not entitled to § 2254 relief. 

CERTIFICATE OF APPEALABILITY 

"[T]he right to appeal is governed by the certificate of appealability (COA) requirements 

now found at 28 U.S.C. § 2253(c)." Sack v. McDaniel, 529 U.S. 473, 478 (2000). A COA 

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"may issue. . . only if the applicant has made a substantial showing of the denial of a 

constitutional right." 28 U.S.C. § 2253(c)(2); Gonzalez v. Thaler, 132 S. ct. 641, 646 (2012). 

In cases where a district court rejects a petitioner's constitutional claims on the merits, "[t]he 

petitioner must demonstrate that reasonable jurists would find the district court's assessment of 

the constitutional claims debatable or wrong." Slack, 529 U.S. at 484. To warrant a grant of 

the certificate as to claims that the district court rejects solely on procedural grounds, the 

petitioner must show both "that jurists of reason would find it debatable whether the petition 

states a valid claim of the denial of a constitutional right and that jurists of reason would find it 

debatable whether the district court was correct in its procedural ruling." Id. 

Romo has not made a substantial showing of the denial of a constitutional right. Thus, 

reasonable jurists could not debate the denial of his § 2254 petition or find that the issues 

presented are adequate to deserve encouragement to proceed. Miller-El v. Cockrell, 537 U.S. 

322, 327 (2003) (citing Slack, 529 U.S. at 484). Moreover, reasonable jurists would not debate 

whether the Court's procedural rulings are correct. The Court shall not issue a certificate of 

appealability. 

CONCLUSIONS AND ORDERS 

For the reasons discussed above, the Court concludes that Romo is not entitled to § 2254 

relief. Therefore, the Court enters the following orders: 

IT IS ORDERED that Romo's "Petition for a Writ of Habeas Corpus by a Person in State 

Custody" (ECF No. 1-2) is DENIED and his cause is DISMISED WITH PREJUDICE. 

IT IS FURTHER ORDERED that Romo is DENIED a certificate of appealability. 

IT IS FURTHER ORDERED that all pending motions are DENIED. 

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IT IS FINALLY ORDERED that the Clerk shall CLOSE this case. 

SIGNED this 1 ?lay of September 2020. 

CQL 

FRANK MONTALVO 

UNITED STATES DISTRICT JUDGE 

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