IN THE UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

WICHITA FALLS DIVISION

EDUARDO GUADALUPE VIZCAYNO, §

TDCJ-CID No. 2042663, §

§

Petitioner, §

§

V. § NO. 7:22-CV-052-O

§

DIRECTOR, TDCJ-CID, §

§

Respondent. §

OPINION AND ORDER

Eduardo Guadalupe Vizcayno, filed a petition for writ of habeas corpus pursuant to 28 

U.S.C. § 2254 to challenge a prison disciplinary action. The Court, having considered the petition, 

the response, the record, and applicable authorities, concludes that the petition must be 

DISMISSED.

I. BACKGROUND

Petitioner is serving a sentence of ten years’ incarceration following his plea of guilty to 

intoxication manslaughter in Case No. D-45,700 in the 161st Judicial District Court, Ector County, 

Texas. ECF No. 19, Ex. A. 

On May 13, 2022, Petitioner was notified that he was being charged with prison 

disciplinary offenses of (1) refusing or failing to obey orders, (2) using indecent or vulgar language 

in the presence of or directed at an employee, and (3) creating a disturbance. ECF No. 21-2 at 2.1

The latter charge was dismissed and Petitioner was found guilty of the other charges. Id.; ECF No. 

21-1 at 2–3. His punishment was assessed at loss of 45 days’ commissary and loss of 30 days’ 

1 The page references are to “Page __ of __” reflected at the top right portion of the document on the Court’s electronic 

filing system.

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good time credit. Id. Petitioner filed a Step One grievance, which was denied. ECF No. 21-1 at 2–

3. He did not pursue a further appeal.2

Petitioner raises four grounds in support of his petition, asserting racial discrimination, 

racial retaliation, racial slandering, and racial hazing. ECF No. 1 at 6–7. 

II. 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 

2

In fact, Petitioner admits that the Step One grievance had not been resolved when he filed his petition in this action. 

ECF No. 1 at 5. 

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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. Connor, 404 

U.S. 270, 275 (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 state-law claim” is not 

enough. Anderson, 459 U.S. at 6; Wilder v. Cockrell, 274 F.3d 255, 260 (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).

III. ANALYSIS

Here, Petitioner recognizes that he failed to exhaust his administrative remedies. ECF No. 

1 at 5. He has not shown that any extraordinary circumstances excuse his failure to exhaust. Fuller

v. Rich, 11 F.3d 61, 62 (5th Cir. 1994) (a petitioner must pursue appeal to give administrative body 

a chance to act). He cannot pursue relief here. 

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Further, although the Court need not address the merits of the petition, Petitioner could not 

prevail for the reasons discussed by Respondent. ECF No. 19 at 7–9. Petitioner received all the 

process he was due and the conviction is supported by some evidence. See Doc. 21-2 at 2, 8–11. 

Moreover, his allegations of racial discrimination are not properly raised in a habeas proceeding. 

Rather, conditions of confinement should be addressed in an action under 42 U.S.C. § 1983. See 

Cook v. Texas Dep’t of Crim. Justice Transitional Planning Dep’t, 37 F.3d 166, 168 (5th Cir. 

1994). 

IV. CONCLUSION

For the reasons discussed herein, the petition 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 2nd day of March, 2023.

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