Case: 19-20402      Document: 00515296404         Page: 1    Date Filed: 02/03/2020




           IN THE UNITED STATES COURT OF APPEALS
                    FOR THE FIFTH CIRCUIT


                                    No. 19-20402
                                  Summary Calendar
                                                                         United States Court of Appeals
                                                                                  Fifth Circuit

                                                                                FILED
                                                                         February 3, 2020
KEITH HARRY WASHINGTON,
                                                                           Lyle W. Cayce
                                                                                Clerk
                                                 Petitioner-Appellant

v.

LORIE DAVIS, DIRECTOR, TEXAS DEPARTMENT OF CRIMINAL
JUSTICE, CORRECTIONAL INSTITUTIONS DIVISION,

                                                 Respondent-Appellee


                   Appeal from the United States District Court
                        for the Southern District of Texas
                             USDC No. 4:19-CV-1723


Before DENNIS, ELROD, and DUNCAN, Circuit Judges.
PER CURIAM: *
       Keith    Harry     Washington,       Texas     prisoner    #    1487958,            raised
constitutional claims arising out of a prison disciplinary proceeding in a
submission styled as a 28 U.S.C. § 2254 petition. The district court construed
the petition as raising only § 2254 claims and denied it. Washington now
moves this court for a certificate of appealability (COA) to appeal the district



       * 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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH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.
    Case: 19-20402     Document: 00515296404     Page: 2   Date Filed: 02/03/2020


                                  No. 19-20402

court’s denial of his § 2254 claims. He also argues that the district court failed
to consider claims involving civil rights violations of his First Amendment and
substantive due process rights. We construe Washington’s motion as both a
request for a COA with respect to any § 2254 claims and an appeal of the
dismissal of any civil rights claims, and we consider each in turn.
                                        I.
      Washington’s habeas petition challenges a disciplinary conviction he
received for solicitation to violate the rules of the Texas Department of
Criminal Justice (TDCJ). As a result of his violation, he forfeited 30 days of
good-time credit and received 30 days of commissary restriction, 15 days of
recreation restriction, a demotion in line class, and prolonged confinement in
restrictive hours.   Washington claimed that his due process rights were
violated during the disciplinary proceedings and that the disciplinary report
contained false statements. The district court concluded that Washington was
not entitled to habeas relief because his punishment consisted only of changes
to the condition of his confinement and a loss of good time credit, which did not
implicate due process. Accordingly, the district court dismissed the case and
denied a COA.
      Washington now seeks a COA in this court. To obtain a COA, a § 2254
petitioner must make “a substantial showing of the denial of a constitutional
right.” 28 U.S.C. § 2253(c)(2). To meet that standard, Washington must
demonstrate 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 adequate to deserve encouragement to proceed
further.” Slack v. McDaniel, 

, 483-84 (2000) (internal quotation
marks and citation omitted) (quote at 484).




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                                       No. 19-20402

         “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.’” Malchi v. Thaler,

, 957 (5th Cir. 2000) (citation omitted). The Due Process Clause
of the Fourteenth Amendment protects persons against deprivations of life,
liberty, or property. Wilkinson v. Austin, 

, 221 (2005); U.S. Const.
amend. XIV, § 1. Thus, in determining whether an individual’s due process
rights have been violated, this court first considers whether he has been denied
a liberty or property interest by the state. Meza v. Livingston, 

,
399 (5th Cir. 2010). Punishments such as loss of recreation and commissary
privileges, cell restriction, solitary confinement, and change in line class do not
implicate due process concerns because they do not represent an “atypical and
significant hardship.” Sandin v. Conner, 

, 484 (1995); see Malchi,
211 F.3d at 958-59; Madison v. Parker, 

, 768 (5th Cir. 1997).
         States may, under certain circumstances, create liberty interests that
the Due Process Clause protects, which are “generally limited to . . . regulations
or statutes which affect the quantity of time rather than the quality of time
served by a prisoner.” Madison, 104 F.3d at 767; see Sandin, 515 U.S. at 483-
84, 487 (explaining that prison disciplinary proceedings will impact a
petitioner’s liberty interests where a disciplinary adjudication “inevitably
affect[s] the duration of his sentence”). Parole is discretionary in Texas and an
inmate’s release on parole is entirely speculative; therefore, the loss of good
time credits and any delay in consideration for parole does not implicate a
protected liberty interest. See Madison, 104 F.3d at 768; Malchi, 211 F.3d at
957. 1


         Conversely, a Texas prisoner who is eligible for the Texas form of conditional release
         1

known as mandatory supervision has “a protected liberty interest in previously earned good
[] time credits.” Teague v. Quarterman, 

, 777 (5th Cir. 2007). This is irrelevant


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                                    No. 19-20402

      In the instant case, the record establishes that Washington’s disciplinary
conviction resulted in the loss of good time credits and commissary and
recreation privileges, a reduction in line class, and confinement in restricted
hours. As the district court correctly determined, these punishments did not
implicate due process concerns. See Teague, 482 F.3d at 777; Malchi, 211 F.3d
at 958; Madison, 104 F.3d at 768. Therefore, reasonable jurists would not
debate whether Washington’s procedural due process claims deserve
encouragement to proceed. See Slack, 529 U.S. at 483-84.
                                           II.
      With respect to any civil rights claims, the title a prisoner gives to pro se
pleadings is not controlling; rather, courts look at the content of the pleading.
United States v. Santora, 

, 42 n.1 (5th Cir. 1983). Washington may
have stated civil rights claims that are potentially cognizable under 42 U.S.C.
§ 1983. See, e.g., Woods v. Smith, 

, 1164 (5th Cir. 1995). The
district court, however, did not address whether Washington stated cognizable
claims under § 1983. See Serio v. Members of La. St. Bd. of Pardons, 

, 1119 (5th Cir. 1987).
                                         ***
      In light of the foregoing, Washington’s request for a COA to appeal the
denial of his § 2254 claims is DENIED. The district court’s dismissal of
Washington’s civil rights claims is VACATED, and the case is REMANDED for
the district court to consider whether Washington has alleged any civil rights
claims cognizable under § 1983.




here, however, because according to his petition, Washington was ineligible for mandatory
supervision.


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