Kerley v. Stevens, No. 4:2014cv03491 - Document 37 (S.D. Tex. 2015)
Court Description: MEMORANDUM OPINION AND ORDER granting 30 Amended MOTION for Summary Judgment with Brief in Support, denying 1 Petition for Writ of Habeas Corpus. A Certificate of Appealability is denied. (Signed by Judge Sim Lake) Parties notified. (aboyd, 4)
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Kerley v. Stevens Doc. 37 United States District Court Southern District of Texas ENTERED November 02, 2015 IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF TEXAS HOUSTON DIVISION HARRY FRANKLIN KERLEY, TDCJ #895775, Petitioner, v. WILLIAM STEPHENS, Director, Texas Department of Criminal Justice - Correctional Institutions Division, Respondent. § § § § § § § § § § § § § David J. Bradley, Clerk CIVIL ACTION NO. H-14-3491 MEMORANDUM OPINION AND ORDER The petitioner, state inmate Harry Franklin Kerley incarcerated in the Texas (TDCJ #895775), Department Justice - Correctional Institutions Division (~TDCJ"). of is a Criminal Kerley has filed a Petition for a Writ of Habeas Corpus By a Person in State Custody under 28 U.S.C. § 2254 (Docket Entry No. 1), challenging the result of a prison disciplinary proceeding. Respondent Stephens' s Brief in Support Now pending is Amended Motion for Summary Judgment with (Docket Entry No. response (Docket Entry No. 36). administrative records, 30). Kerley has filed a After reviewing the pleadings, the and the applicable law, the court will grant the respondent's amended motion and dismiss this action for the reasons explained below. Dockets.Justia.com I. Background Kerley is presently incarcerated as the result of a judgment and sentence entered against him in the 339th Judicial District Court of Harris County, Texas. 1 of delivery of imprisonment. 2 heroin and Kerley was convicted of two counts was sentenced to seventy years' Kerley was later convicted in the 262nd Judicial District Court of Harris County, Texas, of unlawfully possessing a firearm as a felon. 3 Kerley received a ten-year prison sentence in that case. 4 Kerley does not challenge any of his underlying convictions. Instead, he challenges the result of a prison disciplinary proceeding lodged against him on August 5, 2014, at the Ellis Unit in Huntsville, Texas, in TDCJ Case No. 20140347143. 5 The administrative record shows that Kerley was charged with violating Code 16.0 of the prison disciplinary rules by possessing contraband - "a cleartech typewriter" - that he did not own. 6 Kerley was also charged with violating Code 10.0 of the prison disciplinary rules by committing a felony in violation of Texas Penal Code§ 37.101 by 1 Commi tment No. 30-2, p. 2. 2 Respondent's Exhibit A, Docket Entry Id. 4 Inquiry, Id. 5 TDCJ Disciplinary Report and Hearing Record Report"), Docket Entry No. 18-2, p. 3. 6 Id. -2- ("Disciplinary being in possession of commits an offense "a completed UCC-11 in violation of § Form. " 7 A person if he "knowingly 37.101 presents for filing or causes to be presented for filing a financing (2) statement that the person knows: contains a material false statement; or TEX • PENAL felony. CODE § 3 7 . 1 0 1 (a) . (1) (3) is [UCC] forged; is groundless." Such an offense is a third-degree Id. A report of the administrative investigation reflects that Kerley was found in possession of a typewriter without papers to prove ownership and that he was also found in possession of a completed UCC-11 form. 8 The UCC-11 form requested a certified copy of a financing statement from the Texas Secretary of State's Office for a business that Kerley reportedly owned under an assumed name. 9 It is against prison rules for TDCJ inmates to operate or establish a business while possession of incarcerated. 10 several bank Kerley routing numbers was also found in and correspondence indicating that he was attempting to secure financing . 11 After consulting with an administrative official, the charging officer concluded that the 7 Id. at 4 , 12-13. 9 form Id. 8 UCC-11 Id. at 12-13. lOid. at 4. 11 Id. at 14, 27-29. -3- in Kerley's possession was fraudulent and determined that disciplinary charges were warranted for violating Texas Penal Code § 37.101. 12 At a disciplinary hearing held on August 6, 2014, Kerley did not dispute that he possessed the typewriter or the UCC-11 form, but he denied having any fraudulent intent. 13 After considering the charging officer's testimony, as well as his report and attached documentation, the disciplinary hearing officer found Kerley guilty as charged of both the Code 10.0 and Code 16.0 violation. 14 As punishment, the hearing officer restricted Kerley's recreation and commissary privileges privileges for 30 for days, 45 and days, curtailed suspended his his telephone contact privileges for four months through December 6, 2014. 15 visitation Kerley also forfeited 280 days of previously earned credit for good conduct (i.e., "good-time credit") . 16 Kerley filed grievances to challenge his conviction, but his appeals were unsuccessful. 17 Kerley now seeks a federal writ of habeas corpus to challenge his conviction for violating Code 10.0 of the prison disciplinary rules. Kerley argues that his conviction violates due process 12 Id. at 4-6, 10. 13 Id. at 3; Audio CD, Docket Entry No. 19. 14 Disciplinary Report, Docket Entry No. 18-2, p. 3. 17 Step 1 and Step 2 Offender Grievance Forms and Disciplinary Report, Docket Entry No. 18-1, pp. 3-7. -4- because simple possession of a completed UCC-11 violate Texas Penal Code§ 37.101. 18 a felony in violation of Code form does not Arguing that he did not commit 10. 0, Kerley asks the court to overturn his conviction and expunge it from his record. 19 Kerley also asks for a court order directing the respondent to return certain items of personal property that were confiscated in connection with the disciplinary charges against him. 20 The respondent has presented an Affidavit from Natalie Isaac, who is a Program Supervisor V for the TDCJ Counsel Substitute Program, showing that Kerley's conviction for violating Code 10.0 was overturned and deleted from Kerley's record on February 5, 2015. 21 Kerley's conviction for possession violation of Code 16.0 remained intact. 22 of contraband in The punishment in Case No. 20140347143 was modified to reflect a restriction on Kerley's commissary, recreation and telephone privileges for 4 5 days, a reduction in classification status from S3 to L1, a 30-day loss of good-time credit, and suspension of contact visits for four months. 23 18 Petition, Docket Entry No. 1, p. 6. 19 Id. at 6-7; Petitioner's Memorandum in Support of Habeas Relief, Docket Entry No. 2, pp. 1-2. 20 Peti tioner' s Response to Respondent's Motion for Judgment, Docket Entry No. 25, p. 2. 21 Respondent's Exhibit C, Docket Entry No. 30-4, p. 2. 22Id. -5- Summary Because his conviction for violating Code 10.0 was overturned and expunged, the respondent argues that Kerley's challenge to his disciplinary conviction for violating Code 10. 0 is now moot. 24 The respondent also argues that Kerley's claims about his confiscated property concern the conditions of his confinement and are not actionable in a habeas corpus proceeding. 25 II. A. Discussion The Petition is Moot as to the Code 10.0 Violation The United States Supreme Court has explained that a becomes moot if it "no longer present[s] under Article III, 2 of the Constitution." u.s. 1, 7 (1998). § Under the "[t] he parties must continue outcome' of the lawsuit.'" Id. a case case or controversy Spencer v. Kemna, 523 case-or-controversy requirement, to have a 'personal stake in the (quoting Lewis v. Continental Bank Corp., 494 U.S. 472, 477-78 (1990)) "This means that, throughout the litigation, the plaintiff 'must have suffered, or be threatened with, an actual injury traceable to the defendant and likely to be redressed by a favorable judicial decision.'" Spencer, 523 U.S. at 7 (quoting Lewis, 494 U.S. at 477). The record confirms that Kerley's disciplinary conviction for violating Code 10. 0 has been overturned 24 and deleted from his Respondent Stephens's Amended Motion for Summary Judgment with Brief in Support, Docket No. 30, p. 11. 25 Id. at 13. -6- record. 26 To the extent that Kerley seeks federal habeas corpus relief from his conviction and punishment for violating Code 10.0 of the prison disciplinary rules, there is nothing for this court his petition is moot because to remedy. Therefore, the respondent's amended motion for summary judgment on this issue is granted. 27 B. Claims Concerning Conditions of Confinement In his response to the motion for summary judgment, Kerley contends that is entitled to relief even though his Code 10.0 conviction has been overturned because items of personal property were wrongfully confiscated as a result of against him in TDCJ Case No. 20140347143. 28 the charges lodged Specifically, Kerley requests a court order directing respondent to return "all legal material, notes, drafts, catalogs, books, stamps, envelopes, and all other items that were confiscated" when he was charged with 26 Respondent's Exhibit C, Docket Entry No. 30-4, p. 2. 27 The respondent also contends that Kerley cannot demonstrate a due process violation concerning his conviction for violating Code 16.0. See Respondent Stephens's Amended Motion for Summary Judgment With Brief in Support, Docket Entry No. 30, pp. 9-11. Kerley does not contest the validity of his conviction for violating Code 16.0. See Petition, Docket Entry No. 1, pp. 5, 6; see also Petitioner's Memorandum in Support of Habeas Corpus Relief, Docket Entry No. 3, pp. 1-2. Accordingly, the court need not reach these arguments. 28 Peti tioner' s Response to Respondent's Motion for Summary Judgment, Docket Entry No. 25, p. 2; Petitioner's Response to Respondent's [Amended] Motion for Summary Judgment, Docket Entry No. 36, pp. 1-3. -7- violating prison rules 20140347143. 29 in Case No. Arguing that these claims take issue with conditions of confinement and not the result of a prison disciplinary proceeding, the respondent contends that Kerley fails to state a claim for which habeas relief may be granted. 30 A writ of habeas corpus provides a remedy only for prisoners challenging the Rodriguez, "fact or duration" 93 S. under 42 U.S.C. Ct. § 1827, 1841 of confinement. (1973) By contrast, Preiser v. an action 1983 is the appropriate legal vehicle to attack allegedly unconstitutional conditions of confinement. See Cook v. Texas Dep't of Criminal Justice Transitional Planning Dep't, F.3d 166, § 168 (5th Cir. 1994). In other words, 37 an action under 1983 is the appropriate remedy where a prisoner challenges "the rules, customs, and procedures affecting 'conditions' confinement," and not the "fact or duration of confinement." 37 F.3d at 168 Cir. 1987)). (quoting Spina v. Aaron, 821 F.2d 1126, 1128 of Cook, (5th Where there is a question about the proper vehicle, the Fifth Circuit has adopted a "bright-line rule" for resolving whether a claim is actionable on habeas corpus review or must be raised in a suit under § 1983: "If 'a favorable determination . . . would not automatically entitle [the prisoner] to accelerated 29Id. 30 Respondent Stephens's Amended Motion for Summary Judgment with Brief in Support, Docket No. 30, p. 13. -8- release' . the proper vehicle is a Johnson, 112 F.3d 818, 820-21 § 1983 suit." (5th Cir. 1997) Carson v. (internal citation omitted) . Kerley's claims regarding the confiscation of his personal property concern conditions of confinement and do not call into question the validity of his prison disciplinary conviction in Case No. 20140347143. As such, relief in his favor would not automatically result in the restoration of time credits or his accelerated release from confinement. Kerley's claims concerning the Under these circumstances, confiscation of property must be brought in a suit under 42 U.S.C. not actionable on federal habeas corpus review. his personal 1983, and are § The respondent's amended motion for summary judgment on this issue will be granted. III. Certificate of Appealability The habeas corpus petition filed in this case is governed by the AEDPA, codified at 28 U.S.C. § 2253, which requires a certificate of appealability to issue before an appeal may proceed. See Hallmark v. Johnson, 118 F.3d 1073, 1076 (noting that actions filed under either 28 U.S.C. require a certificate of appealability) (5th Cir. § 2254 or 1997) § 2255 "This is a jurisdictional prerequisite because the COA statute mandates that ' [u] nless a circuit justice or judge issues a certificate of appealability, an appeal may not be taken to the court of appeals. v. Cockrell, 123 S. Ct. 1029, 1039 -9- (2003) Iff (citing Miller-El 28 U.S.C. § 2253(c) (1)). requires a Rule 11 of the Rules Governing Section 2254 Cases district court to issue or deny a certificate of appealability when entering a final order that is adverse to the petitioner. A certificate of petitioner makes "a constitutional right," appealability will substantial 28 U.S.C. not of showing issue unless the 2253(c)(2), § denial the of a which requires a petitioner to demonstrate "that reasonable jurists would find the district court's assessment of the constitutional claims debatable or wrong." Tennard v. Dretke, 124 S. Ct. 2562, 2565 (2004) (quoting Slack v. McDaniel, 120 S. Ct. 1595, 1604 (2000)). Under the controlling standard this requires a petitioner to show "that reasonable jurists could debate whether (or, for that matter, agree that) the petition should have been resolved in a different manner or that the issues presented were encouragement to proceed further.'" Where denial of relief is 'adequate to deserve Miller-El, 123 S. Ct. at 1039. based on procedural grounds, the petitioner must show not only that "jurists of reason would find it debatable whether the petition states a valid claim of the denial of a constitutional right," but also that they "would find it debatable whether the district court was correct in its procedural ruling." Slack, 120 S. Ct. at 1604. A district court may deny a certificate of appealability, sua sponte, without requiring further briefing or argument. See Alexander v. For Johnson, 211 F.3d 895, -10- 898 (5th Cir. 2000). reasons set forth above, the court concludes that jurists of reason would not debate whether any procedural ruling in this case was correct or whether the petitioner states a valid claim for relief. Therefore, a certificate of appealability will not issue. IV. Conclusion and Order Based on the foregoing, the court ORDERS as follows: 1. Respondent Stephens's Amended Motion for Summary Judgment (Docket Entry No. 30) is GRANTED. 2. The Petition for a Writ of Habeas Corpus By a Person in State Custody (Docket Entry No. 1) is DENIED, and this action will be dismissed with prejudice. 3. A certificate of appealability is DENIED. The Clerk shall provide a copy of this Memorandum Opinion and Order to the parties. SIGNED at Houston, Texas, on this 2nd day of November, 2015. UNITED STATES DISTRICT JUDGE -11-
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