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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

VICTOR MANUEL ORTUNO, §

§

Petitioner, §

§

v. § 2:05-CV-0094

§

DOUGLAS DRETKE, Director, §

Texas Department of Criminal Justice, §

Correctional Institutions 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 VICTOR MANUEL ORTUNO wherein he challenges the result of prison

disciplinary proceeding Case No. 20040292552. For the reasons hereinafter set forth, it is the

opinion of the undersigned United States Magistrate Judge that the petition for federal habeas

corpus relief should be DENIED.

I.

STATE COURT CONVICTION

Petitioner is in the lawful custody of the Texas Department of Criminal Justice,

Correctional Institutions Division (TDCJ-CID), as a result of a judgment and sentence out of

Dallas County, Texas. On April 10, 2000, in State v. Ortuno, No. F-9931691-IJ, petitioner was

convicted of the felony offense of possession with intent to deliver a controlled substance

 

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1

This information was derived from the TDCJ-CID online Offender Information website.

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).

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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(methamphetamine), and was sentenced to a term of imprisonment of twenty (20) years.1

Further elaboration of the specifics of petitioner’s state court conviction and any post-conviction

proceedings are unnecessary.

II.

DISCIPLINARY PROCEEDING

Petitioner was found guilty, in Disciplinary Case No. 20040292552, of an unknown

offense at the Clements Unit in Amarillo, Texas, and was assessed a punishment which included

forfeiture of ten (10) days previously accrued good time credits.2 Petitioner attests he filed a

Step 1 Offender Grievance Form which was denied. Petitioner also attests he filed a Step 2

Offender Grievance Form which was also denied. Petitioner filed the instant federal habeas

petition on February 17, 2005.3

III.

PETITIONER’S ALLEGATIONS

Petitioner contends his federal constitutional rights were violated with regard to

Disciplinary Case No. 20040292552 in the following respects:

1. Petitioner was denied effective assistance of counsel due to his race and not

understanding English;

2. Petitioner was denied his right to appeal in that he was denied assistance

with an appeal;

 

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3. Petitioner was denied due process and fundamental fairness in that he was

denied his right to appeal and effective assistance of counsel due to his

race and lack of knowledge of the law; and

4. TDCJ-CID officials discriminated against petitioner, by refusing him any

type of assistance, based upon his race, language and lack of knowledge of

the law. 

IV.

DE MINIMIS LOSS

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

shown the challenged forfeiture of ten (10) days accumulated good conduct time was in violation

of the United States Constitution. Specifically, the sanction imposed in petitioner’s case is of

insufficient length to give rise to a due process claim. Accordingly, petitioner is not entitled to

federal habeas corpus relief. 

 There is no constitutional guarantee to assure credit for good conduct while in prison.

See Wolff v. McDonnell, 418 U.S. 539, 557, 94 S.Ct. 2963, 41 L.Ed.2d 935 (1974). Texas law

provides that good time credits apply only to eligibility for release on parole or mandatory

supervision and do not affect the length of an inmate's sentence. See Tex. Gov't Code Ann. §

498.003; Ex parte Montgomery, 894 S.W.2d 324, 328 (Tex.Crim.App. 1995). State prisoners in

Texas "have no protected liberty interest in parole." Johnson v. Rodriguez, 110 F.3d 299, 308 (5th

Cir.), cert. denied, 522 U.S. 995, 118 S.Ct. 559, 139 L.Ed.2d 400 (1997). Because there is no

protected liberty interest in parole, a Texas inmate can only establish a basis for federal habeas

corpus relief if the good time credit sanction affects his eligibility for early release on mandatory

supervision. See Malchi v. Thaler, 211 F.3d 953 (5th Cir. 2000).

Petitioner appears to be eligible for mandatory supervision. The Fifth Circuit has

 

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4

The court stated that six (6) months would be more than de minimis. Id. 

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recognized, however, that even if a Texas prisoner is eligible for mandatory supervision, he

"does not necessarily have a constitutional expectancy of release on a particular date." Malchi,

211 F.3d at 958. Accordingly, the Fifth Circuit has acknowledged the possibility "that a de

minimis delay of a few days in a prisoner's mandatory supervision release would not give rise to

a constitutionally cognizable claim." Id.4 The Fifth Circuit did not establish a bright line rule for

when a delay in release or a loss of good time credits would be de minimis. The Fifth Circuit

subsequently suggested, however, that the loss of thirty (30) days good time might be de

minimis. Richards v. Dretke, 394 F.3d 291, 294 n. 5 (5th Cir. 2004) ("A 30-day delay of

mandatory supervision release might be de minimis and therefore not give rise to a due process

claim.").

Following this line of reasoning, district courts within the Fifth Circuit have concluded

that, depending on the length of an inmate’s sentence, a 30-day delay in release on mandatory

supervision is de minimis and insufficient to implicate constitutional due process concerns. See

Teague v. Dretke, 384 F.Supp. 2d 999, 1002-1003 (N.D.Tex. July 26, 2005) (for an inmate

serving a 45-year sentence, the loss of 30 days of good conduct time is de minimis because it

represents 0.18 % of his total sentence.); White v. Dretke, Civil No. H-05-0020 (S.D. Tex. June

28, 2005); Carroll v. Dretke, 2005 WL 2467698, *5 (S.D.Tex. Oct.6, 2005) (“the deprivation of

thirty days of good-conduct credits from a prisoner serving a thirty-five year sentence seems to

fall within the range of a de minimis delay that does not give rise to constitutional concerns” as

the loss of good-conduct credits equated to less than one-fourth of one percent of the petitioners'

total sentence); Martin v. Director, TDCJ-CID, 2006 WL 981988, *3+ (E.D.Tex. Apr 11, 2006)

 

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(the loss of 30-days is arguably de minimis). Similarly, district courts have also found that

disciplinary sanctions of as little as 1 or 2 days of good time credits pose only a de minimis delay

in a prisoner's potential release, and do not give rise to a constitutional claim. See Cartwright v.

Dretke, 2005 WL 2318703, *2 (N.D.Tex. Sept.20, 2005) (loss of 1 day of good time on an 8-year

sentence); Gallman v. Dretke, 2005 WL 2493273, *2 (N.D.Tex. Oct.7, 2005) (loss of 2 days of

good time on a 40-year sentence); Hay v. Dretke, 2006 WL 696647 (S.D.Tex. Mar 16, 2006)

(loss of 1 day of good time on a 5-year sentence).

Here, as petitioner is serving a 20-year prison sentence, the loss of ten (10) days good

time credits will pose, if anything, no more than a de minimis delay in his potential early release

from prison on mandatory supervision. Finding the possible delay is de minimis under the

circumstances, the undersigned concludes the procedural protections found in the Due Process

Clause do not apply to the 10-day sanction imposed as the result of the disciplinary conviction at

issue in this case. Absent a showing that the Due Process Clause applies, the petition fails to

allege a constitutional violation and the petitioner is, therefore, not entitled to federal habeas

corpus relief.

V.

MERITS

Even if the loss of ten (10) days good time was more than de minimis, petitioner has not

demonstrated his constitutional due process rights in the disciplinary proceeding were violated. 

Consequently, this petition for a writ of habeas corpus should be denied.

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

 

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

proceeding. In Wolff, 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. Id., 418 U.S. at 539.

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

protections established by Wolff. Consequently, petitioner is not entitled to federal habeas

corpus relief for any constitutional procedural deficiencies. 

Petitioner does, however, complain that the performance of his substitute counsel was

deficient; thus, he was denied the effective assistance of counsel during the disciplinary

proceeding. An inmate does not have a right to either retained or appointed counsel in a

disciplinary hearing. Baxter v. Palmigiano, 425 U.S. 308, 315, 96 S.Ct. 1551, 47 L.Ed.2d 810

(1976) (citing Wolff, 418 U.S. at 570). Because petitioner has no constitutional right to the

assistance of counsel substitute, he cannot claim a right to habeas relief based on counsel

substitute's performance. See Wainwright v. Torna, 455 U.S. 586, 587-88, 102 S.Ct. 1300, 71

L.Ed.2d 475 (1982) (no right to counsel, no deprivation of ineffective assistance).

Petitioner also claims he was denied due process in the disciplinary proceeding because: 

(1) his appeal of the disciplinary action was denied because, without assistance of counsel, he had

absolutely no knowledge of how to appeal the disciplinary ruling; (2) petitioner was denied his

right to appeal due to his race and lack of knowledge of the appropriate procedures; and (3) TDCJ-

 

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CID discriminated against petitioner by refusing him any type of assistance. These grounds for

relief are wholly conclusory and unsupported by any facts alleged in the petition. “Although pro se

habeas petitions must be construed liberally, ‘mere conclusory allegations on a critical issue are

insufficient to raise a constitutional issue.” ’ Koch v. Puckett, 907 F.2d 524, 530 (5th Cir. 1990)

(quoting United States v. Woods, 870 F.2d 285, 288 n.3 (5th Cir. 1989)); see Ross v. Estelle, 694

F.2d 1008, 1011 (5th Cir. 1983) (“Absent evidence in the record, a court cannot consider a habeas

petitioner's bald assertions on a critical issue in his pro se petition, unsupported and unsupportable

by anything else contained in the record, to be of probative evidentiary value.”).

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). Petitioner has failed to set forth any facts showing the disciplinary ruling against

him was arbitrary and capricious. The undersigned further notes 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 has

not argued there was no evidence to support the disciplinary ruling. Instead, he has argued

simply that he did not receive the assistance he sought for the proceeding and that the denial of

such assistance was due to his race.

Petitioner has failed to present any grounds for relief which would show the disciplinary

action taken against him was constitutionally infirm. Based upon the foregoing, it is the opinion

of the undersigned United States Magistrate Judge that petitioner’s habeas corpus application

should be DENIED.

 

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VI.

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 VICTOR MANUEL ORTUNO be DENIED.

VII.

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 4th day of May 2006.

 _______________________________

 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

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

 

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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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