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IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

DALLAS DIVISION

BARRY NEAL ADAMS, 1059962, )

Petitioner, )

)

v. ) No. 3:05-CV-1642-L

) ECF

NATHANIEL QUARTERMAN, Director )

TDCJ-CID, )

Respondent. )

FINDINGS, CONCLUSIONS AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

This case has been referred to the United States Magistrate Judge pursuant to 28 U.S.C. 

§ 636(b) and a standing order of reference from the district court. The Findings, Conclusions and

Recommendation of the Magistrate Judge are as follows:

I. Procedural Background

Petitioner filed this petition pursuant to 28 U.S.C. § 2254. He challenges a disciplinary

proceeding in which he lost twenty-one days of good time credit, forty-five days of recreation

and commissary privileges, and was placed in administrative segregation.

After exhausting the prison grievance procedures, Petitioner filed this federal petition. He

argues that his due process rights were violated because: (1) there was insufficient evidence to

support a finding of guilt; (2) the charging officer offered contradictory information on his written

report and statement; (3) the hearing officer was biased; (4) TDCJ violated its own policy and

procedures; (5) he was denied an impartial review; and (6) he was unlawfully placed in

administrative segregation. 

 

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On March 3, 2006, Respondent filed his answer. On March 16, 2006, Petitioner filed his

reply. The Court now finds the petition should be denied.

II. Discussion

1. Standard of Review

The pertinent terms of the Antiterrorism and Effective Death Penalty Act of 1996 (the

AEDPA), 28 U.S.C. § 2254 provide:

(d) An application for writ of habeas corpus on behalf of a person in custody pursuant

to the judgment of a state court shall not be granted with respect to any claim that

was adjudicated on the merits in State court proceedings unless the adjudication of

the claim – 

(1) resulted in a decision that was contrary to, or involved an unreasonable

application of, clearly established Federal law, as determined by the

Supreme Court of the United States; or

(2) resulted in a decision that was based on an unreasonable determination of

the facts in light of the evidence presented in a State court proceeding.

See 28 U.S.C. § 2254(d). Under the “contrary to” clause, a federal habeas court may grant the

writ of habeas corpus if the state court arrives at a conclusion opposite to that reached by the

United States Supreme Court on a question of law or if the state court decides a case differently

from the United States Supreme Court on a set of materially indistinguishable facts. Williams v.

Taylor, 529 U.S. 362, 380-84 (2000). Under the “unreasonable application” clause, a federal

court may grant a writ of habeas corpus if the state court identifies the correct governing legal

principle from the United States Supreme Court’s decisions, but unreasonably applies that

principle to the facts of the prisoner’s case. Id.

This amendment applies to all federal habeas corpus petitions which are adjudicated on

the merits in state court after April 24, 1996. See Lindh, 521 U.S. at 336. The petition in this

 

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Petitioner amended his petition to add the claim that he was unlawfully placed in

administrative segregation. He does not state the duration of this confinement, and has therefore

failed to show the confinement was atypical and significant.

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case is subject to review under the AEDPA.

2. Recreation/Commissary Privileges and Administrative Segregation

As a result of the disciplinary proceedings, Petitioner lost forty-five days of recreation and

commissary privileges, and was placed in administrative segregation. The temporary loss of

recreation and commissary privileges presents no issue of constitutional magnitude. Inmates

generally do not have protected liberty interests in their privileges. See Sandin v. Conner, 515

U.S. 472, 486 (1995) (holding that a prisoner’s liberty interest is “generally limited to freedom

from restraint which . . . imposes atypical and significant hardship on the inmate in relation to the

ordinary incidents of prison life.”). Temporary restrictions, such as those imposed on Petitioner,

do not represent atypical and significant hardships in relation to the ordinary incidents of prison

life.1

 See Madison v. Parker, 104 F.3d 765, 768 (5th Cir. 1997) (finding that cell restrictions and

loss of commissary privileges are “merely changes in the conditions of [ ] confinement and do not

implicate due process concerns.”); see also Luken v. Scott, 71 F.3d 192, 193 (5th Cir. 1995

(“administrative segregation, without more, does not constitute a deprivation of a constitutionally

cognizable liberty interest.”); Haper v. Showers, 174 F.3d 716, 719 (5th Cir. 1999) (“Inmates have

no protectable property or liberty interest in custodial classifications.”); Martin v. Scott, 156 F.3d

578, 580 (5th Cir. 1998) (“absent exigent circumstances, administrative segregation as such, will

never be a ground for a constitutional claim because it simply does not constitute a deprivation of

a constitutionally cognizable liberty interest.”). Petitioner’s claims should therefore be denied.

 

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3. Loss of Good Time Credits

Petitioner lost twenty-one days of good time credits. To the extent this loss affects

Petitioner’s parole date, his claim for relief fails. In Texas, there is no constitutional expectancy

of parole. Madison, 104 F.3d at 768. Further, in Texas, only sanctions that result in the loss of

good of good time credits for inmates who are eligible for release on mandatory supervision will

create a liberty interest. Malchi v. Thaler, 211 F.3d 953, 957-58 (5th Cir. 2000); Madison, 104

F.3d at 768. Petitioner is not entitled to release on mandatory supervision because he was

convicted of murder. See TEX. GOV’T CODE ANN. § 508.149(a). Because Petitioner has no

constitutionally protected right to parole or mandatory supervision, his loss of good time credits

does not raise a constitutional claim. The petition should therefore be denied.

4. Summary

Petitioner is lawfully restrained because he has failed to prove that he has been denied a

constitutionally protected interest. Accordingly, the state courts’ determination to deny relief is

not contrary to or does not involve an unreasonable application of clearly established federal law

and is not based on an unreasonable determination of the facts in light of the evidence presented

in the state court proceedings.

 

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RECOMMENDATION

This Court recommends that the petition for writ of habeas corpus pursuant to 28 U.S.C. §

2254 be DENIED.

Signed this 5th day of September, 2006.

_____________________________________

PAUL D. STICKNEY

UNITED STATES MAGISTRATE JUDGE

 

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INSTRUCTIONS FOR SERVICE AND

NOTICE OF RIGHT TO OBJECT

The United States District Clerk shall serve a copy of these findings and recommendations

on the parties. Pursuant to 28 U.S.C. § 636(b)(1), any party who desires to object to these

findings and recommendations must file and serve written objections within ten (10) days after

being served with a copy. A party filing objections must specifically identify those findings and

recommendations to which objections are being made. The District Court need not consider

frivolous, conclusory or general objections. The failure to file such written objections to these

proposed findings and recommendations shall bar that party from a de novo determination by the

district court. See Thomas v. Arn, 474 U.S. 140, 150 (1985). Additionally, the failure to file

written objections to proposed findings and recommendations within ten (10) days after being

served with a copy shall bar the aggrieved party from appealing the factual findings and legal

conclusions of the Magistrate Judge that are accepted by the District Court, except upon grounds

of plain error. See Douglass v. United Servs. Auto. Ass'n, 79 F.3d 1415, 1417 (5th Cir. 1996) (en

banc).

 

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