1

Petitioner asserts in his habeas application he lost three (3) days of good time credits however, disciplinary

records documents submitted by respondent show the loss to be two (2) days.

2

Other punishment with which petitioner was assessed constituted changes in the conditions of petitioner’s

confinement and does not implicate the Due Process Clause of the United States Constitution. See Sandin v. Conner, 515

U.S. 472, 478, 115 S.Ct. 2293, 2297 (1995); Madison v. Parker, 104 F.3d 765, 767 (5th Cir. 1997).

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

KEITH LAVELLE GALLMAN, §

§

Petitioner, §

§

v. § 2:03-CV-0399

§

DOUGLAS DRETKE, Director, §

Texas Department of Criminal §

Justice, Institutional Division, §

§

 Respondent. §

REPORT AND RECOMMENDATION TO DENY PETITION

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

Before the Court is a Petition for a Writ of Habeas Corpus by a Person in State

Custody filed by petitioner KEITH LAVELLE GALLMAN. By his habeas application,

petitioner challenges a July 14, 2003 prison disciplinary proceeding wherein petitioner was

found guilty of the disciplinary offense of threatening to inflict harm on an officer, a Level

1, Code 4.0 violation. Petitioner was punished with the forfeiture of two (2) days1

 of

previously accrued good time credits.2 For the reasons hereinafter set forth, it is the opinion

of the undersigned United States Magistrate Judge that petitioner’s petition for a writ of

habeas corpus should be DENIED.

 

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3

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).

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I.

PROCEDURAL HISTORY

Respondent DOUGLAS DRETKE has lawful and valid custody of petitioner

pursuant to a judgment and sentence out of the 2nd Judicial District Court of Dallas County,

Texas, in Cause No. F84-773-98, for the offense of aggravated robbery with a deadly

weapon. Petitioner was found guilty of the offense by a jury and on March 8, 1985, was

sentenced to forty (40) years imprisonment in the Texas Department of Criminal Justice -

Correctional Institutions Division. Respondent also has lawful and valid custody of

petitioner pursuant to a judgment and sentence out of the 3rd Judicial District Court of

Anderson County, Texas, in Cause No. 23,119 in which petitioner pleaded guilty to the

offense of possession of a deadly weapon in a penal institution. Petitioner received a ten

(10) year sentence for this conviction on April 4, 1994.

Petitioner was found guilty, in Disciplinary Case No. 20030309593, with the offense

of threatening to inflict harm on an officer, a Level 1, Code 4.0 violation, and on July 14,

2003, he was assessed a punishment which included forfeiture of (two) 2 days of good time

credits. 

Petitioner filed a Step 1 Offender Grievance Form which was denied on September

10, 2003. Petitioner then filed a Step 2 Offender Grievance Form and such was denied on

September 30, 2003. Petitioner filed the instant federal habeas petition on November 12,

2003.3

II.

GROUNDS

Petitioner presents the following grounds:

 

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A. Officer Sydney Smith falsified the disciplinary case against petitioner;

B. There was a discrepancy between the written incident report and the officer’s

testimony at the hearing;

C. Petitioner was improperly identified; and

D. Petitioner’s due process rights were violated because Captain Merida would

not listen to petitioner’s explanation that the incident occurred on 12-C pod

while petitioner was housed on 12-D pod.

III.

MERITS

The undersigned finds the instant habeas application should be denied. Petitioner has not

shown the challenged forfeiture of accumulated good conduct time was in violation of the United

States Constitution. Accordingly, petitioner is not entitled to federal habeas corpus relief. 

In order to prevail in a federal habeas corpus proceeding, petitioner must show his due

process rights were violated during the state prison disciplinary process. The United States

Supreme Court has set out the due process to which a prisoner is entitled during a disciplinary

proceeding. In Wolff v. McDonnell, 418 U.S. 539, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974), the

Court held that while disciplinary proceedings are not part of the criminal prosecution process

and, therefore, the full panoply of rights does not apply, there are certain minimal due process

provisions required to be satisfied. Those are: (1) advance written notice of the charges; (2) an

opportunity to call witnesses and/or present documentary evidence when such presentation is not

unduly hazardous to institutional safety or correctional goals; and (3) a written statement by the

fact finder of the evidence relied upon and the reasons for the disciplinary action.

Petitioner does not specifically allege he was denied any procedural due process

protections established by Wolff . Further, review of the disciplinary proceeding records reveals

 

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petitioner was afforded the full panoply of constitutional procedural due process requirements under

Wolff. Consequently, petitioner is not entitled to federal habeas corpus relief for any constitutional

procedural deficiencies. 

It is the law of the Fifth Circuit that the findings of a prison disciplinary hearing shall not be

disturbed unless they are arbitrary and capricious. Banuelos v. McFarland, 41 F.3d 232, 234 (5th

Cir. 1995). Federal courts do not review the sufficiency of the evidence since a finding of guilt

requires only the support of some facts, or any evidence at all. Gibbs v. King, 779 F.2d 1040, 1044

(5th Cir. 1986). Consequently, in order to prevail in a challenge to a disciplinary proceeding by way

of federal habeas corpus, a petitioner must establish that there was no evidence to support the

disciplinary adjudication. 

Petitioner cannot meet this burden as there clearly was some evidence, as demonstrated by

the offense report, the charging officer’s testimony, and the testimony of a witness. To the extent

petitioner complains, the offense report against him was falsified, complains about discrepancies

between the charging officer’s testimony and the offense report, complains about improper

identification, and complains his due process rights were violated because TDCJ personnel, Captain

Merida, wouldn’t listen to his explanation, such claims are merely challenges to the sufficiency and

credibility of the evidence and are outside the scope of habeas review. 

Finally, petitioner lost two (2) days of good time credits. As argued by respondent, it does

not appear such loss will significantly shorten his sentence i.e. the loss should be considered “de

minimis.” In Malchi v. Thaler, 211 F.3d 953, 958 (5th Cir. 2000), the Fifth Circuit specifically

stated, “It is possible that a de minimis delay of a few days would not give rise to a

constitutionally cognizable claim.” The court further noted that an inmate does not

 

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have a constitutional expectancy of release on a particular date, and that a delay could

sometimes be inconsequential. Id. It would appear two (2) days of lost good time credits

would fit squarely within this logic, especially in light of the fact that other factors having

nothing to do with a disciplinary charge, can affect mandatory supervision release.

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.

IV.

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 KEITH LAVELLE GALLMAN be DENIED.

V.

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 6th day of October 2005.

 _______________________________

 CLINTON E. AVERITTE

 UNITED STATES MAGISTRATE JUDGE

* 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

 

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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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