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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

WICHITA FALLS DIVISION

EDUARDO GUADALUPE VIZCAYNO, §

(TDCJ No. 02042663), § 

Petitioner, §

§

v. § Civil Action No. 7:22-cv-067-O

§

BOBBY LUMPKIN, §

Director, TDCJ-CID, §

§

 Respondent. §

 OPINION AND ORDER

Before the Court is a petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 

filed by Petitioner, Eduardo Guadalupe Vizcayno (“Vizcayno”), a state prisoner confined in the 

Correctional Institutions Division of the Texas Department of Criminal Justice (TDCJ-CID), 

against Respondent Bobby Lumpkin, director of that division. After considering the pleadings 

and relief sought by Petitioner, the Court has concluded that the § 2254 petition must be 

DISMISSED.

I. BACKGROUND

Vizcayno is in TDCJ-CID custody pursuant to a judgment and sentence of the 161st 

Judicial District Court of Ector County, Texas, in cause number D-45,700. Resp. Exhibit A, ECF 

No. 14-1. Vizcayno pled guilty to intoxication manslaughter and on November 12, 2015, he was 

sentenced to ten years imprisonment. Id. Because Vizcayno challenges the result of a 

disciplinary action rather than the validity of his conviction, a procedural history of any appeals 

or state writ applications is not relevant to the Court’s disposition of this case. See Pet. 5, ECF 

No. 1.

On June 7, 2022, Vizcayno was notified that he was being charged with two prison 

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disciplinary offenses: (1) threatening to inflict harm, physical or otherwise, on another person 

who is not an offender, a Level 1, Code 4.0 violation; and, (2) attempting to establish an 

inappropriate relationship with a staff member, a Level 2, Code 30.1 violation.1 Disciplinary 

Hearing Record (“DHR”) at 2-4; ECF No. 17-2. The disciplinary hearing officer found Vizcayno 

guilty based on the investigating officer’s offense report, a handwritten letter from the inmate to 

a staff member, a magazine page with a photo of a knife which was included with the letter, 

handwriting analysis comparing the letter to a known sample of Vizcayno’s handwriting, and 

various other documents attached to the letter. DHR at 2, ECF No. 17-2. Vizcayno was assessed 

punishment at: (1) 30 days loss of good-time credit;(2) a loss of 45 days of recreation privileges;

and (3) a loss of 45 days of commissary privileges. Id. Vizcayno constructively filed the instant 

petition on June 22, 2022. Pet 10, ECF No. 1.2

II. ISSUES

Vizcayno’s claims can be summarized as follows:

1 TDCJ-CID, Disciplinary Rules and Procedures for Offenders can be accessed via the internet at 

(<http://www.tdcj.state.tx.us/publications/index.html>/GR-106, Aug. 2019.pdf> page GR-106 

Attachments A and B) (last visited July 6, 2023).

2A pro se petitioner’s federal habeas petition is deemed filed when he delivered the writ petition 

to prison authorities for mailing. See Cousin v. Lensing, 310 F.3d 843, 847 (5th Cir. 2002); Spotville v. 

Cain, 149 F.3d 374, 375 (5th Cir. 1998). Vizcayno certified that he placed his § 2254 petition in the mail 

on June 22, 2022. Pet. 10, ECF No. 1.

1. His due process rights were violated when a witness was not called in his 

defense, camera footage of the event was not reviewed, and evidence was not 

considered;

2. TDCJ officials failed to abide by state policies and procedures;

3. Prison officials lied and slandered him in this disciplinary hearing, which 

caused him to suffer cruel and unusual punishment, mental anguish, and the 

denial of parole; and,

4. He has been the victim of racial discrimination and retaliation since 2018.

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Pet. at 6-7, ECF No. 1.

III. APPLICABLE LEGAL STANDARDS

A. Disciplinary Proceedings

Federal courts cannot retry every prison disciplinary dispute. Reeves v. Pettcox, 19 F.3d 

1060, 1062 (5th Cir. 1994). Rather, they may act only where arbitrary or capricious action is 

shown in connection with a disciplinary hearing that involves a liberty interest--that is, restraint 

that imposes atypical and significant hardship on the inmate in relation to the ordinary incidents 

of prison life. Sandin v. Conner, 515 U.S. 472, 484 (1995). In such cases, due process is satisfied 

where the inmate receives: (1) 24-hour advanced written notice of the charges against him; (2) an 

opportunity to call witnesses and present documentary evidence in his defense; and (3) a written 

statement from the fact-finder that includes the evidence relied on and the reasons for the action 

taken. Wolff v. McDonnell, 418 U.S. 539, 563-67 (1974). If those requirements are met, the court 

only looks to see whether there is some evidence in the record that could support the findings 

made at the hearing. Superintendent, Mass. Corr. Inst. v. Hill, 472 U.S. 445, 455-56 (1985).

B. Exhaustion

The exhaustion doctrine requires that the state courts be given the initial opportunity to 

address alleged deprivations of constitutional rights. Castille v. Peoples, 489 U.S. 346, 349 

(1989); Anderson v. Harless, 459 U.S. 4, 6 (1982). In the case of a prison disciplinary 

proceeding, the petitioner must exhaust his administrative remedies by pursuing both steps of the 

grievance process. Baxter v. Estelle, 614 F.2d 1030, 1031–32 (5th Cir. 1980); Lerma v. Estelle, 

585 F.2d 1297, 1299 (5th Cir. 1978). The grievances must be presented in a procedurally correct 

manner according to the applicable rules. Castille, 489 U.S. at 351. And, all of the grounds raised 

must be fairly presented to the state courts before being presented in federal court. Picard v. 

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Connor, 404 U.S. 270, 275-76 (1971). That is, the state courts must have been presented with the 

same facts and legal theories presented in federal court. The petitioner cannot present one claim 

in federal court and another in state court. Id. at 275–76. Presenting a “somewhat similar statelaw claim” is not enough. Anderson, 459 U.S. at 6; Wilder v. Cockrell, 274 F.3d 255, 259-60 (5th 

Cir. 2001).

For the Court to reach the merits of unexhausted claims, the petitioner must demonstrate

either (1) cause for the procedural default and actual prejudice, or (2) that he is actually innocent

of the offense for which he was convicted. McQuiggin v. Perkins, 569 U.S. 383, 386 (2013); 

Coleman v. Thompson, 501 U.S. 722, 750 (1991). To establish actual innocence, the petitioner 

must provide the Court with “new reliable evidence—whether it be exculpatory scientific 

evidence, trustworthy eyewitness accounts, or critical physical evidence—that was not presented 

at trial.” Schlup v. Delo, 513 U.S. 298, 324 (1995). In other words, “‘actual innocence’ means 

factual innocence, not merely legal insufficiency.” Bousley v. United States, 523 U.S. 614, 623 

(1998) (citation omitted).

IV. ANALYSIS

Vizcayno did initiate the grievance process for filing a Step 1 grievance, to which he 

received the following response:

[t]he investigation of this grievance is complete. Disciplinary Case #

20220167635 has been reviewed. The disciplinary charge was appropriate for the 

offence and the guilty verdict was supported by the preponderance of the 

evidence. All due process requirements were satisfied, and the punishment 

assessed by the Disciplinary Hearing Officer was within agency guidelines. No 

further action is warranted at this time. 

DGR at 4. Vizcayno acknowledges he did not submit a Step 2 grievance, but he maintains this is 

because he had not received the requisite form. Pet., 5-6, ECF No. 1. According to the Offender 

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Orientation Handbook,3“Grievance forms are available from the law library, housing area, shift 

supervisors, or by contacting the unit grievance office.” Vizcayno has not demonstrated that he 

attempted to obtain a step-2 grievance form himself, rather than wait for someone to send it to 

him. Nevertheless, because he failed to raise his claims in both step-one and-two grievances, 

rendering them unexhausted, it would be futile for him to raise the claims in any subsequent state 

review. Any newly filed grievances would be untimely.4

Further, if he were to present his claims to the Texas Court of Criminal Appeals in a state 

writ, he would be denied relief because disciplinary actions are not cognizable on state habeas 

review. See Ex parte Brager, 704 S.W.2d 46 (Tex. Crim. App. 1986) (holding that the Texas 

Court of Criminal Appeals will not consider challenges to prison disciplinary actions in a state 

writ). The general rule, that a state court must explicitly apply a procedural bar to preclude 

federal review, does not apply when a petitioner fails to exhaust his state remedies. See Coleman,

501 U.S. at 735. In such cases, the federal procedural default doctrine precludes federal habeas 

corpus review. Id.

Although federal habeas corpus review is available when administrative remedies either 

are unavailable or wholly inappropriate to the relief sought, Vizcayno has failed to show that his 

failure to properly exhaust his administrative remedies is due to neither “an absence of a state 

corrective process,” nor to circumstances rendering that process “ineffective to protect the rights 

3.TDCJ-CID, Offender Orientation Handbook can be accessed via the internet at 

https://www.tdcj.state.tx.us/publications/index.html, February 2017, pdf> page 73 (last visited July 6, 

2023).

 4. See id at page 74 (establishing that offenders have fifteen days from the date of the incident to 

raise as step-one grievance, and fifteen days from a denial of a step one grievance to file a step-two 

grievance).

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of the applicant.” 28 U.S.C. §2254(b)(1)(B)(i) and (ii). Exceptions to the exhaustion requirement 

for federal habeas corpus review apply only in extraordinary circumstances and Vizcayno bears 

the burden of showing the futility of an administrative review. State v. Fuller, 11 F.3d 61, 62 (5th 

Cir.1994). Moreover, to overcome the procedural bar, a petitioner must demonstrate adequate 

cause for the default and actual prejudice resulting from such default. Johnson v. Cain, 215 F.3d 

489, 494 (5th Cir. 2000).

Vizcayno has failed to establish extraordinary circumstances, futility of the 

administrative process, or actual prejudice. 28 U.S.C. § 2254(b); Fuller, 11 F.3d at 62. 

Accordingly, the Court finds that all Vizcayno’s claims are unexhausted and procedurally 

barred.5

V. CONCLUSION

For the reasons discussed herein, it is ORDERED that Eduardo Guadalupe-Vizcayno’s 

petition for a writ of habeas corpus pursuant to 28 U.S.C. § 2254 is DISMISSED. Further, 

pursuant to 28 U.S.C. § 2253(c), for the reasons discussed herein, a certificate of appealability is 

DENIED.

SO ORDERED on this 6th day of July, 2023.

5Alternatively, all grounds for relief in Vizcayno’s § 2254 petition are dismissed on the merits for 

the reasons stated in the Respondent’s response at pages 7-13. 

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