Malchi v. Thaler

• Decision Date: 23 May 2000
• Docket Number: No. 99-40388,99-40388
• Citation: 211 F.3d 953
• Parties: (5th Cir. 2000) DOBBER GRAHAM MALCHI, Petitioner-Appellee, v. RICK THALER, Warden, Texas Department of Criminal Justice, Respondent-Appellant
• Court: U.S. Court of Appeals — Fifth Circuit

Page 953

211 F.3d 953 (5th Cir. 2000)

DOBBER GRAHAM MALCHI, Petitioner-Appellee, v. RICK THALER, Warden, Texas Department of Criminal Justice, Respondent-Appellant.

No. 99-40388

UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

May 23, 2000

[Copyrighted Material Omitted] Appeal from the United States District Court for the Eastern District of Texas

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 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 inmate ¹, 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."

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 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 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 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-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 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, Malchi's thirty-day...