UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 99-40388
DOBBER GRAHAM MALCHI,
Petitioner-Appellee,
VERSUS
RICK THALER, Warden,
Texas Department of Criminal Justice,
Respondent-Appellant.
Appeal from the United States District Court
for the Eastern District of Texas
May 23, 2000
Before WIENER, BENAVIDES and PARKER, Circuit Judges.
ROBERT M. PARKER, Circuit Judge:
Rick Thaler, Warden of the Telford Unit of the Texas
Department of Criminal Justice, Institutional Division (“Warden”),
appeals the district court’s grant of habeas corpus relief to
Dobber Graham Malchi, Texas state prisoner # 675956. We reverse.
I. FACTS AND PROCEDURAL HISTORY
Malchi filed a petition for habeas corpus challenging a prison
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disciplinary decision finding him guilty of possession of a box of
stolen envelopes and the resulting penalty of 30-day loss of
commissary privileges, 30-day cell restriction and the reduction of
his good-time-earning status from S-3 (state approved trustee-3) to
L-1 (line one).
The magistrate judge obtained a tape of the prison
disciplinary hearing, held June 17, 1997, from which he gleaned the
following facts. On June 11, 1997, Malchi, who worked at the Unit
Law Library, left work at approximately 2:25 p.m. to return to his
dorm. About an hour later, inmate Mark Chance, a fellow law
library worker, asked petitioner to help him carry some books back
from the law library. Malchi agreed and obtained a pass from the
dorm officer, Nieto, for the law library where he and Chance picked
up the books. As they started back to the dorm, Officers Patman
and Nieto stopped them after receiving information that a box of
envelopes designated for indigent inmates had been stolen from the
law library. During the ensuing search, a box of envelopes was
found on another inmate1, but no contraband was found on Malchi.
Malchi was then escorted to his living area and his personal items
were searched. Ten envelopes for indigent inmates were discovered
during the search. Officer McLilly wrote a disciplinary report
charging petitioner with possession of contraband, described as “a
box of indigent state envelopes.”
1
The magistrate noted that the testimony did not make it clear
whether the envelopes were found on Chance or some other inmate.
2
The evidence showed that from January 27, 1997, when he began
receiving indigent inmate supplies on the Telford Unit, to June 11,
1997, Malchi received sixty-five business envelopes and mailed
sixty-eight. Malchi had a surplus of three envelopes, plus the ten
that were found in his cell, which he either received as contraband
or, as he claimed in the disciplinary hearing, bought in the
commissary during the prior six-month period. Concerning the
specific envelopes that were the subject of the disciplinary
charge, Malchi received ten envelopes from indigent inmate supplies
on June 3, 1997 and mailed out nine envelopes between June 3, 1997
and June 11, 1997. Thus, the evidence indicates that at least one
of the ten envelopes in question was legitimately in Malchi’s
possession. Malchi was found guilty of the charge by the
Disciplinary Hearing Officer.2
The magistrate judge determined that the findings of the
disciplinary officer were based on flawed analysis and that there
were no facts that would support the finding that Malchi was found
in possession of a box of stolen envelopes. The magistrate judge
recommended that the habeas petition be granted and that Malchi’s
time-earning status and good-time credits be restored.
The Warden filed objections to the recommendation arguing that
2
The Disciplinary Hearing Officer erroneously included writ
envelopes in his calculations, made mathematical errors, and
considered only those envelopes received and sent after March 1,
1997 in reaching the conclusion that Malchi had thirty-one
unaccounted for envelopes.
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the disciplinary officer had made credibility determinations that
the magistrate judge was not allowed to second guess on the basis
of a cold record.
The district court overruled the Warden’s objections, finding
that it was apparent from the face of the record that Malchi did
not possess a box of envelopes, that the disciplinary decision was
arbitrary and capricious and that the hearing did not meet the
requirements of minimal due process. The district court granted
the habeas writ and ordered the respondent to restore to Malchi his
time-earning status and all lost good time resulting from the
disciplinary conviction challenged in this case. The Warden filed
a timely notice of appeal.
II. ANALYSIS
A. Controlling law and standard of review
The magistrate judge characterized Malchi’s petition as
arising under 28 U.S.C. § 2241. However, Malchi is alleging that
the disciplinary action resulted in a change in his good-time-
earning status which extended the date for his release on mandatory
supervision. State prisoners who allege that they were improperly
denied good-conduct credit that, if restored, would have resulted
in their immediate or sooner release from prison, fall under §
2254. See Preiser v. Rodriguez, 411 U.S. 475, 487 (1973); see also
McGary v. Scott, 27 F.3d 181, 183 (5th Cir. 1994)(petition alleging
the improper denial of good-time credits arose under § 2254 and was
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subject to the Rules Governing § 2254 cases); Story v. Collins, 920
F.2d 1247-51 (5th Cir. 1991). Thus, Malchi’s petition arises under
§ 2254 rather than § 2241. A certificate of appealability is not
required because a representative of the state is appealing the
district court’s grant of habeas relief. See FED. R. APP. P.
22(b)(3). We review the district court’s findings of fact for
clear error and decide issues of law de novo. See Clark v. Scott,
70 F.3d 386, 388 (5th Cir. 1995).
B. Protected Liberty Interest in Mandatory Supervision
Federal habeas relief cannot be had “absent the allegation by
a plaintiff 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)(internal quotations and citation omitted). Malchi’s habeas
action is bottomed on his claim that the reduction in his good-
time-earning status imposed as a result of the prison disciplinary
proceeding implicates the Due Process Clause because it delayed his
release under Texas’s mandatory supervision law.
Prisoners may become eligible for release under Texas law on
parole or under a mandatory supervised release program. See
Madison v. Parker, 104 F.3d 765, 768 (5th Cir. 1997).3 “Parole” is
3
Madison was an appeal from the dismissal of a prisoner’s 42
U.S.C. § 1983 suit, rather than a habeas opinion. Subsequent to
Madison, this court held that a prisoner must bring a habeas action
rather than a § 1983 suit to recover good-time credits lost in a
disciplinary hearing. See Clarke v. Stalder, 154 F.3d 186, 189
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the “discretionary and conditional release of an eligible prisoner
. . . [who] may serve the remainder of his sentence under the
supervision and control of the pardons and paroles division.” Id.
“Mandatory supervision” is the “release of an eligible prisoner .
. . so that the prisoner may serve the remainder of his sentence
not on parole, but under the supervision and control of the pardons
and paroles division.” Id.
Because it is entirely speculative whether a prisoner will be
released on parole, the court has determined “that there is no
constitutional expectancy of parole in Texas.” Id. at 768.
Therefore, any delay in Malchi’s consideration for parole cannot
support a constitutional claim.
In Madison, the court observed that former TEX. CODE CRIM. P.
ANN. art. 42.18 § 8(c)(Vernon 1996) provided for a mandatory
release if an inmate has acquired the necessary amount of good-time
credits based on his good behavior.4 See id. The court determined
that the language of the Texas statute paralleled the provisions of
the Nebraska statute interpreted in Wolff v. McDonnell, 418 U.S.
539 (1974) because both statutes bestowed mandatory sentence
reductions for good behavior and allowed for a revocation of good-
(5th Cir. 1998). Malchi therefore properly sought habeas relief in
this case.
4
A Texas prisoner who is not on parole shall be released to
mandatory supervision when his calendar time plus his accrued good-
conduct time equals the maximum term to which he was sentenced.
TEX. CODE CRIM. P. ANN. art. 42.18(c)(Vernon 1996).
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time credits for misbehavior. See Madison, 104 F.3d at 768. The
Madison court noted that Wolff held that the Nebraska statute
created a liberty interest in the mandatory sentence reductions for
prisoners. See id.
Madison also noted that Sandin v. Conner, 515 U.S. 472, 481-86
(1995) did not disturb the holding in Wolff “that the loss of good
time credits under a state statute that bestowed mandatory sentence
reductions for good behavior must be accompanied by certain
procedural safeguards in order to satisfy due process.” Id. at
769. However, Madison did not directly resolve the question
whether the Texas statute authorizing mandatory supervision creates
a liberty interest because the record in that case did not reflect
whether Madison was eligible for mandatory supervision release.5
See id. We now conclude that, pursuant to the Supreme Court’s
decision in Wolff, there is a constitutional expectancy of early
release created by Texas’s mandatory supervision scheme in place
prior to September 1, 1996 for earned good time credits. See id.
A Texas prisoner does not necessarily have a constitutional
expectancy of release on a particular date. For example, it is
possible that a de minimis delay of a few days in a prisoner’s
mandatory supervision release would not give rise to a
5
Some Texas inmates are not eligible for mandatory supervision
release, including those who have been convicted of certain crimes.
See Madison, 104 F.3d at 769.
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constitutionally cognizable claim. In the present case, the
evidence shows that the prison calculated that the subject
disciplinary action delayed Malchi’s release for more than six
months as a result of the change of status from S-3 to L-1. We
hold that such a delay is more than de minimis.
Texas has amended its mandatory supervision statute,6 which
provision is now codified in TEX. GOVT. CODE ANN. § 508.148-.149
(Vernon 1998). Because Malchi is serving sentences for offences
committed in 1990 and 1993, prior to the effective date of the new
statute, the change in the law does not apply to him and his
eligibility for mandatory supervision is determined under the prior
statute. See id. We posit no opinion concerning a constitutional
expectancy of early release under Texas’s revised statute.
C. Do the Sanctions “Affect the Fact or Duration of Confinement?”
The Warden contends that the sanctions imposed in Malchi’s
disciplinary proceedings do not affect the fact or duration of
Malchi’s sentence and for that reason do not state a claim for
habeas relief. See Preiser, 411 U.S. at 493 (a federal habeas
action is only available to challenge the fact or duration of
confinement, not the conditions of confinement.). Clearly,
6
The new Texas Mandatory Supervision law adds a dimension of
discretion to the Mandatory Supervision scheme, providing that if
a parole panel determines that the inmate’s accrued good conduct
time is not an accurate reflection of the inmate’s potential for
rehabilitation and the inmate’s release would endanger the public,
he may not be released to mandatory supervision. See TEX. GOVT. CODE
ANN. § 508.149(b)(Vernon 1998).
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Malchi’s thirty-day loss of commissary privileges and cell
restriction do not implicate due process concerns. See id.
The Warden contends that Malchi’s reduction in good-time-
earning status likewise does not impact the fact or duration of
confinement. The Warden points out that Malchi’s disciplinary
sanction did not forfeit previously earned good-time credits.
Rather, it reduced his good-time-earning status – that is, one day
of good conduct after the disciplinary sanction was imposed earns
less credit toward release at L-1 than the same conduct earns at S-
3. Prison officials calculated that Malchi’s projected date of
release on mandatory supervision changed due to the subject
disciplinary action from November 5, 2000 to May 24, 2001. The
Warden argues that the affect of Malchi’s time-earning class on
his ultimate release date is too attenuated to invoke the
procedural guarantees of the Due Process Clause, citing Luken v.
Scott, 71 F.3d 192, 193 (5th Cir. 1995) and Carson v. Johnson, 112
F.3d 818, 821 (5th Cir. 1997). In Luken, we rejected a prisoner’s
claim that reduced opportunity for earning good-time credits evoked
a constitutionally protected liberty interest in the context of
release on parole. See 71 F.3d at 193 (citing Meachum v. Fano, 427
U.S. 215, 229 n.8 (1976)(noting that possible effect on parole
decision does not create liberty interest)). Similarly, in Carson,
we held that a prisoner has not stated a habeas corpus cause of
action when he contends that an erroneous assignment to
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administrative segregation is making him ineligible for parole.
See 112 F.3d at 821.
The Warden’s argument relies on the observation that there is
a chance that Malchi may, without reference to this or any other
disciplinary action, fail to earn the full measure of good-time
credit available at S-3 status. Thus Malchi’s projected mandatory
supervision release date is speculative. Texas law provides that
“[g]ood conduct time is a privilege and not a right.” TEX. GOVT.
CODE ANN. § 498.003(a)(Vernon 1998). Assignment to a particular
time-earning status depends on a wide variety of factors, including
how long an inmate has been in the Texas prison system, his
disciplinary record, his participation in education and work
activities and the Texas good-conduct laws in effect on his offense
date. See Texas Dept. Crim. Justice Offender Orientation Handbook,
II.D. Good Conduct Time (August 1997). For example, an inmate who
is too ill to work cannot earn the maximum amount of good-conduct
credit regardless of a flawless disciplinary record.
The Constitution does not guarantee good time credit for
satisfactory behavior while in prison. See Wolff, 418 U.S. at 557.
However, when a state creates a right to good time credit and
recognizes that its revocation is an authorized sanction for
misconduct, a prisoner’s interest therein is embraced within the
Fourteenth Amendment’s liberty concerns so as to entitle him to
those minimum procedures appropriate under the circumstances and
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required by the due process clause to insure that this state-
created right is not arbitrarily abrogated. See id.
On one hand, the Texas legislature specifically states that it
has not created a right to good conduct time and reserves to itself
the ability to assign time-earning status based on a wide variety
of considerations. On the other hand, demoting a Texas prisoner to
a lower time-earning status is an authorized sanction for
misconduct. In Sandin, the Supreme Court noted that Conner’s
confinement in disciplinary segregation would not “inevitably”
affect the duration of his sentence since the decision to release
a prisoner on parole “rests on a myriad of considerations.” 151 at
487. The Court concluded that the possibility that Conner’s
confinement in disciplinary segregation would affect when he was
ultimately released from prison “is simply too attenuated to invoke
the procedural guarantees of the Due Process Clause.” Id.
While Malchi’s time-earning status is less attenuated from his
mandatory release than release on parole, we nonetheless conclude
that the timing of Malchi’s release is too speculative to afford
him a constitutionally cognizable claim to the “right” to a
particular time-earning status, which right the Texas legislature
has specifically denied creating. See Bulger v. United States, 65
F.3d 48, 50 (5th Cir. 1995)(holding that the loss of a prison job
did not implicate the prisoner’s liberty interest even though the
prisoner lost the ability to automatically accrue good-time
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credits). We therefore conclude that the district court erred in
granting Malchi habeas corpus relief.
III. CONCLUSION
For the foregoing reasons, we reverse the district court’s
grant of habeas corpus relief.
REVERSED.
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