1

On appeal through the grievance process, petitioner’s charge was modified to reflect a Code 24.0 offense for refusing

or failing to obey an order.

2

Other punishment with which petitioner was assessed either constituted changes in the conditions of his confinement

or did not inevitably affect the duration of his sentence and, therefore, did 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).

HAB54\DISCIP\R&R\DRAKE176:2

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

AMARILLO DIVISION

PATRICK DRAKE, §

§

Petitioner, §

§

v. § 2:05-CV-0176

§

DOUGLAS DRETKE, Director, §

Texas Department of Criminal Justice, §

Correctional Institutions Division, §

§

Respondent. §

REPORT AND RECOMMENDATION

TO DISMISS PETITION FOR WRIT OF HABEAS CORPUS

On January 14, 2005, petitioner filed with this Court a Petition for a Writ of Habeas Corpus

by a Person in State Custody challenging the result of a December 21, 2004 prison disciplinary

proceeding. In that prison disciplinary proceeding, petitioner was found guilty of the disciplinary

offense of refusing to accept a housing assignment, a Level 2, Code 24.2 offense,1

 and was punished

with the forfeiture of sixty (60) days 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 DISMISSED.

 

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HAB54\DISCIP\R&R\DRAKE176:2 2

I.

STATE COURT CONVICTIONS

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

Institutions Division (TDCJ-CID), pursuant to judgments of conviction and sentence out of the

292nd Judicial District Court of Dallas County, Texas for four (4) offenses of burglary of a building. 

Upon his pleas of guilty, petitioner was sentenced on June 16, 1992 to four (4) concurrent twenty

(20) year sentences.

II.

PETITIONER’S ALLEGATIONS

Petitioner contends his federal constitutional rights were violated with regard to the 

disciplinary proceeding in Case No. 200501114766 in the following respects:

1. Petitioner was denied due process because he was denied pre-hearing access

to witnesses for interviews and was unable to obtain witness statements

because he was placed in pre-hearing detention;

2. Petitioner was denied due process because there was insufficient evidence to

support the hearing officer’s determination of guilt because the finding was

based solely on the charging officer’s testimony which was hearsay; 

3. Petitioner’s civil rights have been violated because he was denied equal

protection because Officer Head was allowed to continue to harass, threaten

and intimidate petitioner;

4. TDCJ-CID violated its own rules of prison procedure by failing to videotape

the disturbance during which he refused to accept a housing assignment; and

5. Petitioner’s civil rights have been violated because the prison, with deliberate

indifference, subjected him to cruel and unusual punishment in that

petitioner’s life was in danger and TDCJ-CID did not take action to provide

adequate safety for him. 

III.

EXHAUSTION OF STATE COURT REMEDIES

Relief may not be granted to petitioner unless he has exhausted the remedies available in the

 

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3

At the present time, the petitioner is not required to present habeas claims challenging prison disciplinary cases to the

Texas Court of Criminal Appeals because that state court has stated it will not entertain challenges to prison disciplinary

proceedings or the denial of good conduct time credit under the Prison Management Act. Ex parte Palomo, 759 S.W.2d 671

(Tex.Crim App. 1988).

4

Even if petitioner’s second ground were exhausted, his claim would be without merit. Merely generalized accusations

can form the sole basis for a disciplinary action against a prison inmate, Smith v. Rabalais, 659 F.2d 539, 545 (5th Cir. 2001), and

this Court’s review is limited to whether the guilty finding is supported by “some facts” or “any evidence at all.” Hudson v.

HAB54\DISCIP\R&R\DRAKE176:2 3

courts of the State, or an exception to exhaustion exists. However, an application for a writ of habeas

corpus may be denied on the merits, notwithstanding the failure of the applicant to exhaust the

remedies available in the courts of the State. This deference scheme also applies to a habeas

challenge to the determination resulting from a prison disciplinary procedure for which appeal is

available through the grievance process. Baxter v. Estelle, 614 F.2d 1030 1031-32 (5th Cir. 1980). 

Such an appeal through the grievance process has been construed to constitute “the right under the

law of the State to raise, by [an] available procedure, the question presented.” 28 U.S.C. § 2254(c). 

Lerma v. Estelle, 585 F.2d 1297, 1299 (5th Cir. 1978).3

Petitioner challenged the disciplinary proceeding at issue through the prison grievance

procedure. Petitioner’s Step 1 grievance was denied January 18, 2005, and his Step 2 grievance was

denied March 1, 2005. However, nowhere in his grievances did petitioner raise the allegations

asserted in Grounds 1 (access to witnesses), 2 (insufficient evidence) and 4 (violation of prison rules)

of this federal habeas petition. The only argument petitioner raised in both grievances appears to be

his contention that he was justified in refusing his housing assignment due to his belief that his life

was in danger, and that he had repeatedly requested protective custody. It appears to the Court that

Grounds 1, 2 and 4 were never exhausted and that petitioner does not fall within an exception to the

exhaustion requirement. Consequently, petitioner is now procedurally barred, by TDCJ time limits,

from presenting his claims to state prison authorities because he cannot demonstrate adequate cause

for the default and actual prejudice resulting from such default. For this reason, petitioner’s claims in

Grounds 1, 2 and 4 should be dismissed for failure to exhaust.4

 

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Drake, 242 F.3d 534, 537 (5th Cir. 2001). The charging officer’s testimony would constitute “some evidence.” Even if

petitioner’s fourth ground were exhausted, such claim is not cognizable on federal habeas corpus review. See Myers v.

Klevenhagen, 97 F.3d 91, 94 (5th Cir. 1996) (TDCJ-CID’s failure to follow its own administrative rules does not raise federal

constitutional issues as long as minimum constitutional requirements are met); Hernandez v. Estelle, 788 F.2d 1154, 1158 (5th

Cir. 1986) (failure of prison officials to follow their own rules does not establish a constitutional violation).

5

To the extent, if any, petitioner contends he was denied due process because his original charge was modified during

the grievance procedure to reflect a violation of a different rule, a lesser included offense, petitioner has failed to provide any

legal authorities to support his position or shown how such change violated his constitutional rights or prejudiced him in any

way. 

HAB54\DISCIP\R&R\DRAKE176:2 4

IV.

REMAINING CLAIMS ARE NOT COGNIZABLE IN HABEAS CORPUS

In his third ground, petitioner asserts his civil rights have been violated because he has been

denied equal protection under the United States Constitution because Officer Head was allowed to

continue to harass, threaten and intimidate him. In his fifth ground, petitioner contends his civil

rights have been violated because the prison, with deliberate indifference, subjected him to cruel and

unusual punishment because petitioner’s life was in danger and TDCJ-CID did not take action to

provide adequate safety for him. Both of these claims attack prison procedures and the conditions of

petitioner’s confinement and, thus, allege civil rights violations pursuant to 42 U.S.C. § 1983. 

Therefore, such claims are not cognizable in a federal habeas corpus action. For this reason, Grounds

3 and 5 should be dismissed.5

V.

RECOMMENDATION

Based upon the foregoing, 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 filed by

petitioner PATRICK DRAKE should be DISMISSED.

 

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HAB54\DISCIP\R&R\DRAKE176:2 5

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 29th day of November 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 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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