1

The previously named respondent in this action was Janie Cockrell who has since been succeeded by Douglas Dretke

as Director of the Texas Department of Criminal Justice, Institutional Division. Under Federal Rule of Civil Procedure 25(d)(1),

Douglas Dretke “is automatically substituted as a party.”

2

See Spotville v. Cain, 149 F.3d 374, 378 (5th Cir. 1998) (a prisoner’s pro se federal habeas petition is deemed filed when

the inmate delivers the papers to prison authorities for mailing).

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

DAMON LYNN COX, §

§

Petitioner, §

§

v. § 2:03-CV-0086

§

DOUGLAS DRETKE, Director, §

Texas Department of Criminal §

Justice, Institutional Division, §

§

 Respondent.1 §

REPORT AND RECOMMENDATION TO DENY PETITION

FOR A WRIT OF HABEAS CORPUS BY A PERSON IN STATE CUSTODY

On March 19, 20032, petitioner DAMON LYNN COX filed with this Court a Petition

for a Writ of Habeas Corpus by a Person in State Custody challenging the result of

Disciplinary Case No. 20020123927, which occurred on or about January 12, 2002. For the

reasons set forth below, it is the opinion of the undersigned United States Magistrate Judge that

petitioner’s federal application for habeas corpus relief should be DENIED.

I.

PROCEDURAL HISTORY

Respondent DOUGLAS DRETKE has lawful and valid custody of petitioner pursuant to

a judgment and sentence out of the 223rd Judicial District Court of Gray County, Texas, in Cause

No. 3463, for the felony offense of burglary with intent to commit theft. Petitioner pleaded guilty

 

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to the offense and on November 8, 1991, petitioner was sentenced to ten (10) years imprisonment

in the Texas Department of Criminal Justice. Respondent also has lawful and valid custody of

petitioner pursuant to a judgment and sentence out of the 31st Judicial District Court of Gray

County, Texas, in Cause No. 3635, for the felony offense of burglary with intent to commit theft. 

Petitioner pleaded guilty to the offense and on November 8, 1991, petitioner was sentenced to ten

(10) years imprisonment in the Texas Department of Criminal Justice. 

On or about January 14, 2002, petitioner was accused, in Disciplinary Case No.

20020123927, with a level 1, code 2.3 offense, specifically, fighting or assaulting an offender

without a weapon, and was informed of his right to call and question witnesses, to present

documentary evidence, to be represented by counsel substitute, and to call and question the

charging officer at the hearing. On January 17,2002, a disciplinary hearing was held.

At the disciplinary hearing, petitioner, represented by counsel substitute, entered a plea of

not guilty to the charged offense. Petitioner was found guilty of the charged offense based on the

offense report, the charging officer’s testimony at the hearing, and photographs of both offenders

depicting their injuries. The punishment assessed included a 45 day recreation, commissary, and

property restriction, 15 days of solitary confinement, a reduction in line class status from a S3 to

L2, and the loss of 730 days of good time credits. 

Petitioner filed a Step 1 Offender Grievance Form on February 15, 2002, such being

denied on March 22, 2002. Petitioner then filed his Step 2 Offender Grievance Form on

April 4, 2002 and such was denied on May 1, 2002.

II.

GROUNDS

 

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In support of his contention that the evidence was insufficient to support a finding of guilt

in Disciplinary Case No. 20020123927, petitioner presents the following grounds:

A. TDCJ-ID violated his due process rights by finding him guilty of the charged

offense despite the charging officer’s admission that she filed a false disciplinary

report and her support of his defense at the hearing;

B. Petitioner was not allowed sufficient time to investigate his case or prepare and was

only given two minutes to consult with counsel substitute prior to the hearing;

C. TDCJ-ID violated his Eighth Amendment right by failing to protect him from

assault; and

D. Petitioner claims to be the victim of retaliation and conspiracy by TDCJ-ID

officials.

III.

PETITIONER’S THIRD AND FOURTH CLAIMS

ARE NOT COGNIZABLE IN A HABEAS ACTION

In his third and fourth claims, petitioner complains of prison officials failure to protect him

pursuant to the Eighth Amendment and states he is the victim of conspiracy and retaliation. Such

claims allege civil rights violations and are not cognizable in a federal habeas corpus action. To

the extent petitioner raises such claims to demonstrate that he was justified in his actions, i.e.

assault and/or fighting, such claims are more in the nature of challenges to the sufficiency of the

evidence, a claim addressed below.

IV.

MERITS

Federal habeas relief cannot be had “absent the allegation by a plaintiff 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.” Orellana v. Kyle, 65 F.3d 29, 31 (5th Cir. 1995) (internal quotations and

 

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citation omitted). The Due Process Clause of the United States Constitution does not protect every

change in the conditions of confinement having a substantial adverse impact on the prisoner. 

Sandin v. Conner, 515 U.S. 472, 478 (1995). 

To the extent, if any, petitioner COX 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, petitioner COX is challenging the loss of recreation,

commissary, or property privileges, and cell restriction (solitary confinement), 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). Only liberty

interests, whether inherent or state-created, are protected by the Due Process Clause. Madison

v. Parker, 104 F.3d 765, 767 (5th Cir. 1997). These liberty interests are generally limited to

freedom from restraint which imposes atypical and significant hardship on the inmate in

relation to the ordinary incidents of prison life, Sandin, 515 U.S. at 484, or state created

regulations or statutes which affect the quantity of time rather than the quality of time served by

a prisoner. Madison, 104 F.3d at 767. There is no inherent right, under the United States

Constitution or federal law, to good time credit. Wolff v. McDonnell, 418 U.S. 539, 557 (1974). 

 

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A state, however, may create a liberty interest in good time credit. The State of Texas

has done so by creating a right to earned good time credits for prisoners who are eligible for

mandatory supervision release and who committed offenses prior to September 1, 1996. 

Malchi v. Thaler, 211 F.3d 953, 957-58 (5th Cir. 2000). Consequently, an eligible prisoner’s

interest in those credits is “embraced within the Fourteenth Amendment ‘liberty’ concerns so

as to entitle him to those minimum procedures appropriate under the circumstances and

required by the due process clause to insure that this state-created right is not arbitrarily

abrogated.” Madison, 104 F.3d at 768; Wolff, supra.

 Petitioner lost 730 days of good time credit. As noted above, the State of Texas has

created a right to earned good time credits for prisoners who are eligible for mandatory

supervision release and who committed offenses prior to September 1, 1996 and, thus, a

prisoner is entitled to those minimum procedures appropriate under the circumstances and as

required by the due process clause to insure that this state-created right is not arbitrarily

abrogated. In Wolff, after noting its reluctance to review the judgment of prison administrators,

and acknowledging that prison disciplinary proceedings do not require the “full panoply of

rights” due a defendant in a criminal proceeding, the Supreme Court set forth the minimum

requirements of procedural due process which are to be accorded prisoners in the disciplinary

hearing process: 

1. advance written notice of the claimed violation;

2. a written statement of the fact finder as to the evidence relied on and the

reason(s) for the disciplinary action taken; and

3. an opportunity to call witnesses and present documentary evidence in

defense, when to do so would not be unduly hazardous to institutional

safety or correctional goals.

Wolff, 418 U.S. at 564-66.

The records in the instant cause establish petitioner received the procedural due process

 

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3

Petitioner complains he was not given adequate time to prepare for the hearing or to meet with counsel

substitute. However, the record shows that counsel substitute met with petitioner on January 14, 2002 to take his

statement, and thereafter interviewed petitioner’s requested witnesses on January 15, 2002. (See respondent’s answer,

Exhibit B at 7-8).

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guaranteed by Wolff. Petitioner was given advance written notice of the charges against him,

he was appointed a counsel substitute to represent him, he was advised of his right to call

witnesses and to present documentary evidence, and he appeared at the disciplinary hearing.3

The records contain a written statement of the fact finder setting forth the evidence relied upon

in reaching the determination of guilt, as well as the reasons for the particular punishment

imposed. Petitioner was not denied procedural due process with regard to the disciplinary

proceeding.

The “findings of a prison disciplinary hearing will not be disturbed unless they are

arbitrary and capricious.” Banuelos v. McFarland, 41 F.3d 232, 234 (5th Cir. 1995). A hearing

officer’s decision will satisfy the due process requirements if there is “some evidence” in the

record to support the decision. Superintendent v. Hill, 472 U.S. 445, 455 (1985). Treating

petitioner’s claim as a sufficiency of the evidence challenge, it is well-settled that federal

courts do not review the sufficiency of the evidence at a disciplinary hearing. Sufficient

support for a finding of guilty is provided by “some facts” or “any evidence at all.” Gibbs v.

King, 779 F.2d 1040, 1044 (5th Cir.), cert. denied, 476 U.S. 1117 (1986); See also Smith v.

Rabalais, 659 F.2d 539, 545 (5th Cir. 1981)(courts must see “‘whether any evidence at all’

supports the action taken by the prison officials”).

The disciplinary hearing officer considered the offense report, the charging officer’s

testimony at the hearing, and photographs of both offenders depicting their injuries. The reports

and/or testimony relied upon by the hearing officer constitute “some evidence,” and further

support, at least for purposes of federal habeas review, a finding that petitioner engaged in the

 

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4

Petitioner alleges the charging officer submitted a “false report” which she admitted to. The record does not

reflect this. It does appear the initial charge was that of assault on another inmate, however, this was amended at the

hearing to “fighting” based upon the charging officer’s testimony. (See respondent’s answer, Exhibit B at 1). This does not

constitute a false report. 

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conduct alleged.4

The Court finds that the rights set forth in Wolff have not been abridged, and that there

was “some evidence” to support the disciplinary hearing officer’s decision. Based upon the

foregoing, it is the opinion of the undersigned United States Magistrate Judge that petitioner’s

habeas corpus application challenging alleged due process violations in a prison disciplinary

case should be DENIED.

V.

RECOMMENDATION

It 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 DAMON LYNN COX be DENIED.

VI.

INSTRUCTIONS FOR SERVICE

The United States District Clerk is directed to send a file-marked copy of this Report and

Recommendation to petitioner by the most efficient means available. 

IT IS SO RECOMMENDED. 

ENTERED this 12th day of May 2005.

 _______________________________

 CLINTON E. AVERITTE

 UNITED STATES MAGISTRATE JUDGE

 

 

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* NOTICE OF RIGHT TO OBJECT *

Any party may object to these proposed findings, conclusions and recommendation. In

the event a party wishes to object, they are hereby NOTIFIED that the deadline for filing

objections is eleven (11) days from the date of filing as indicated by the file mark on the first

page of this recommendation. Service is complete upon mailing, Fed. R. Civ. P. 5(b), and the

parties are allowed a 3-day service by mail extension, Fed. R. Civ. P. 6(e). Therefore, any

objections must be filed on or before the fourteenth (14th) day after this recommendation is

filed. See 28 U.S.C. § 636(b); Fed. R. Civ. P. 72(b); R. 4(a)(1) of Miscellaneous Order No. 6, as 

authorized by Local Rule 3.1, Local Rules of the United States District Courts for the Northern

District of Texas. 

Any such objections shall be made in a written pleading entitled “Objections to the

Report and Recommendation.” Objecting parties shall file the 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 this report shall bar an aggrieved party, except upon grounds of plain error, from

attacking on appeal the unobjected-to proposed factual findings, legal conclusions, and

recommendation set forth by the Magistrate Judge in this report and accepted by the district

court. See Douglass v. United Services Auto. Ass’n, 79 F.3d 1415, 1428-29 (5th Cir. 1996);

Rodriguez v. Bowen, 857 F.2d 275, 276-77 (5th Cir. 1988). 

 

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