IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT United States Court of Appeals
Fifth Circuit
FILED
December 16, 2009
No. 09-20229
Summary Calendar Charles R. Fulbruge III
Clerk
ANTHONY ALDRIDGE,
Petitioner-Appellant,
versus
RICK THALER, Director,
Texas Department of Criminal Justice, Correctional Institutions Division,
Respondent-Appellee.
Appeal from the United States District Court
for the Southern District of Texas
No. 4:09-CV-285
Before DAVIS, SMITH, and DENNIS, Circuit Judges.
PER CURIAM:*
Anthony Aldridge, Texas prisoner # 633416, filed a 28 U.S.C. § 2254 peti-
tion alleging that he was denied due process in connection with disciplinary pro-
*
Pursuant to 5TH CIR . R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .
R. 47.5.4.
No. 09-20229
ceeding No. 20090042242, as a result of which he lost 30 days of commissary and
recreation restriction, had his line classification status reduced from L1 to L3,
and was reprimanded. The district court decided that those punishments had
no due process implications. Aldridge also lost 400 days of good time credit. His
petition did not include any specific information regarding his offense of convic-
tion.
The district court stated that Aldridge is serving sentences for burglary of
a habitation and for assault on a public servant. Citing the burglary conviction
and T EX. P ENAL C ODE § 508.149(a)(13), the court found that Aldridge was ineligi-
ble for mandatory supervision release. Based on that finding, the court conclud-
ed that the loss of good time did not implicate any due process concerns. The
court dismissed the petition as frivolous and for failure to state a claim.
Seeking to challenge the dismissal, Aldridge now requests a certificate of
appealability (“COA”) from this court. To obtain a COA, he must show “that jur-
ists of reason could disagree with the district court’s resolution of his constitu-
tional claims or that jurists could conclude the issues presented are adequate to
deserve encouragement to proceed further.” Miller-El v. Cockrell, 537 U.S. 322,
327 (2003); see Slack v. McDaniel, 529 U.S. 473, 484 (2000).
By failing to challenge the findings that the loss of recreation and commis-
sary privileges and the reduction in custodial and time-earning status do not im-
plicate due process concerns, Aldridge has waived any challenge to those find-
ings. See Hughes v. Johnson, 191 F.3d 607, 613 (5th Cir. 1999). Accordingly, his
request for a COA in that regard is denied. See Miller-El, 537 U.S. at 327.
Aldridge argues in his COA brief that his burglary conviction is not a con-
viction that renders him ineligible for release to mandatory supervision. Indeed,
he asserts that he was previously released to mandatory supervision but that the
supervision term was later revoked. If Aldridge is eligible for mandatory super-
vision release, then the dismissal of his due process claim with regard to the loss
of good time credits on the basis of his ineligibility for such release is debatable
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No. 09-20229
among reasonable jurists. See Slack, 529 U.S. at 484. The record on appeal does
not contain enough information about the burglary conviction to discern whether
he is eligible for mandatory supervision.
A COA is thus granted on the issue whether Aldridge is eligible for release
to mandatory supervision. With respect to that portion of the judgment dismiss-
ing the due process claim challenging the loss of good time credits, we vacate the
judgment and remand for further development of the record and any other nec-
essary further proceedings.
The request for COA is GRANTED in part and DENIED in part. The
judgment is VACATED and REMANDED for further proceedings as appropriate.
We express no view on what decisions the district court should make on remand.
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