IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

 DALLAS DIVISION

MARK C. DECKARD, #659726, )

)

Petitioner, )

)

v. ) 3:05-CV-0517-P

)

DOUGLAS DRETKE, Director, Texas )

Department of Criminal Justice, )

Correctional Institutions Division, )

Respondent. )

FINDINGS, CONCLUSIONS AND RECOMMENDATION

OF THE UNITED STATES MAGISTRATE JUDGE

Pursuant to the provisions of 28 U.S.C. § 636(b), and an order of the Court, this case has

been referred to the United States magistrate judge. The findings, conclusions and

recommendation of the magistrate judge are as follows:

FINDINGS AND CONCLUSIONS:

Type of Case: This is a petition for habeas corpus relief brought by a state prisoner

pursuant to 28 U.S.C. § 2254.

Parties: Petitioner is currently confined at the Allred Unit of the Texas Department of

Criminal Justice -- Correctional Institutions Division (TDCJ-CID) in Iowa Park, Texas. 

Respondent is the Director of TDCJ-CID. 

Statement of Case: Petitioner was convicted of robbery in Judicial District Court

Number 3 of Dallas County, Texas, in Cause No. F93-42412-J. (Petition (Pet.) at 2). Following

his guilty plea, the district court sentenced him to twenty years imprisonment on July 9, 1993. 

(Id.).

 In this action, Petitioner challenges a prison disciplinary case that he received on July 23,

 

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2004, for possessing contraband in Cause No. 20040322526. (Id. at 5). He received the

following punishment as a result of the disciplinary action taken: he lost forty-five days of

recreation and commissary privileges, received a reprimand and a reduction in line class from L2

to L3, and lost thirty days of good time credits. (Respondent’s Answer at 2). Prior to filing this

action, Petitioner filed Step 1 and Step 2 grievances. (Pet. at 5-6 and attachments). 

Petitioner thereafter filed this timely § 2254 habeas action. He asserts (1) the disciplinary

charge was initiated in conspiracy with other officers, and in retaliation for prior conduct; (2) the

disciplinary hearing officer (DHO) failed to acknowledge his cell mate’s statement as well as a

written statement of documentary evidence; (3) insufficient evidence supported the guilty

finding; and (4) he was denied the right to call his cell mate as a witness. (Pet. at 7-8; see also

Petitioner’s Memorandum in Support). 

In response to this court’s show cause order, Respondent filed an answer seeking the

dismissal of the petition because Petitioner has failed to state a claim for which federal habeas

relief can be granted. Petitioner has not objected to Respondent’s answer.

Findings and Conclusions: Petitioner’s first claim focuses on retaliation and conspiracy

as the sole basis for the disciplinary charge at issue in this case. A retaliation claim is not

cognizable in a habeas corpus action. See Woods v. Smith, 60 F.3d 1161, 1164-65 (5th Cir.

1995) (analyzing retaliation claim as properly brought in the context of a civil rights action under

42 U.S.C. § 1983, and holding that an inmate is not required to demonstrate favorable

termination of the disciplinary case before pursuing the retaliation claim under § 1983); see also

Porter v. Eisenberg, 2003 WL 21209575, No. 5:02-CV-263-C (N.D. Tex., Lubbock Div., May

 

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1 Insofar as Petitioner complains that the disciplinary charge was false, he may

have to show favorable termination before such a claim may be raised under § 1983. See

Woods, 60 F.3d at 1165 n. 16 (citing Ordaz v. Martin, 5 F.3d 529 (5th Cir. 1993) (unpublished));

Freer v. Acosta, 2004 WL 524953, No. 5:04-CV-026-C (N.D.Tex., Lubbock Div., March 17,

2004).

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21, 2003). The same applies to Petitioner’s conspiracy claim.1

 Petitioner’s request for federal habeas relief independent from retaliation and conspiracy

fares no better. Federal habeas relief cannot be had “absent the allegation by a [petitioner] 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). The instant

petition does not present a cognizable basis for habeas corpus relief.

Prisoners charged with rule violations are entitled to certain due process rights under the

Fourteenth Amendment when the disciplinary action may result in a sanction that will impinge

upon a liberty interest. In Sandin v. Conner, 515 U.S. 472, 115 S. Ct. 2293, 132 L. Ed. 2d 418

(1995), the Supreme Court held that a prisoner’s liberty interest is “generally limited to freedom

from restraint which, while not exceeding the sentence in such an unexpected manner as to give

rise to protection by the Due Process Clause of its own force, nonetheless imposes atypical and

significant hardship on the inmate in relation to the ordinary incidents of prison life.” Id. at 484,

115 S. Ct. at 2300. In Texas, only sanctions that result in the loss of good-time credits for

inmates who are eligible for release on mandatory supervision or that otherwise directly and

adversely affect release on mandatory supervision will impose upon a liberty interest. See

Malchi v. Thaler, 211 F.3d 953, 957-58 (5th Cir. 2000); Madison v. Parker, 104 F.3d 765, 768

(5th Cir. 1997); see also Orellana, 65 F.3d at 31-33; Murphy v. Collins, 26 F.3d 541, 543 & n. 5

(5th Cir. 1994).

 

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2 Interestingly, the habeas petition concedes Petitioner is not eligible for mandatory

supervision release. (Pet. at 5 ¶ 16).

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Contrary to Petitioner’s assertion in his memorandum in support, he is not eligible for

mandatory supervision reliease. (Memorandum in Support at 5-8).2 The mandatory supervision

statute in effect at the time of his conviction excepts from mandatory supervision any inmate

who was convicted of robbery. See Tex. Pen. Code Ann. § 29.02 (West 1993); Tex. Code Crim.

Proc. art. 42.18 § 8(c)(10) (West 1993) (providing that “[a] prisoner may not be released to

mandatory supervision . . . if the prisoner is serving a sentence for . . . a second degree felony

under Section 29.02, Penal Code (Robbery).”). 

Because Petitioner is not entitled to early release or mandatory supervision, the loss of

good-time credits as a result of the disciplinary action at issue does not affect the fact or duration

of his sentence and, therefore, does not deprive him of a liberty interest. Acosta v. Dretke, 2003

WL 22671058, No. 7:02-CV-225-R. (N.D. Tex., Wichita Falls Div., Sep. 22, 2003) 

None of the other sanctions, which Petitioner received for the disciplinary action in this

case, affects the fact or duration of his sentence, thus depriving him of a liberty interest.

Commissary and recreation restrictions do not implicate a protected liberty interest because they

do not impose a significant or atypical hardship on the inmate in relation to the ordinary

incidents of prison life. Malchi, 211 F.3d 953, 958; Madison, 104 F.3d 765, 768. Similarly the

change in Petitioner's custodial status, which affects his earning of good-time credits, does not

deprive him of a protected liberty interest. As noted above, Petitioner is not entitled to

mandatory supervision. Therefore, any change in his good-time earning status does not affect a

protected liberty interest. Even if mandatory supervised release eligible, the Fifth Circuit has

 

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3 Insofar as Petitioner contends that the loss of his good-time credits affects his

release on parole, he is likewise not entitled to habeas relief. The Fifth Circuit has held that

there is no constitutional expectancy in parole in Texas because it is entirely speculative whether

a prisoner will be released on parole. Madison, 104 F.3d at 768; see also Malchi, 211 F.3d at

957.

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held that the effect of a change in a prisoner's good-time earning status on the timing of his

release on mandatory supervision was too speculative to afford him a constitutionally cognizable

"right" to a particular time-earning status. Malchi, 211 F.3d at 959; Luken v. Scott, 71 F.3d 192,

193 (5th Cir.1995) (recognizing that "[t]he loss of the opportunity to earn good-time credits,

which might lead to earlier parole, is a collateral consequence of [an inmate's] custodial status"

and, thus, does not create a constitutionally protected liberty interest). 

Because none of the sanctions, which Petitioner received for the disciplinary conviction

in this case, deprived him of a protected liberty interest, the habeas petition does not implicate

due process concerns. Accordingly, it should be denied and dismissed for failing to present a

cognizable basis for habeas relief.3

 

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RECOMMENDATION: 

For the foregoing reasons, it is recommended that the petition for a writ of habeas corpus

be denied.

A copy of this recommendation will be transmitted to Petitioner and counsel for

Respondent.

Signed August 29, 2005.

_____________________________________

PAUL D. STICKNEY

UNITED STATES MAGISTRATE JUDGE

NOTICE

In the event that you wish to object to this recommendation, you are hereby notified that

you must file your written objections within ten days after being served with a copy of this

recommendation. Pursuant to Douglass v. United Servs. Auto Ass'n, 79 F.3d 1415 (5th Cir.

1996) (en banc), a party's failure to file written objections to these proposed findings of fact and

conclusions of law within such ten-day period may bar a de novo determination by the district

judge of any finding of fact or conclusion of law and shall bar such party, except upon grounds

of plain error, from attacking on appeal the unobjected to proposed findings of fact and

conclusions of law accepted by the district court.

 

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