CLINTON E. AVERITTE, Magistrate Judge.
Petitioner has filed with this Court a Petition for a Writ of Habeas Corpus by a Person in State Custody challenging two (2) state prison disciplinary proceedings. Petitioner is no longer confined in the Texas Department of Criminal Justice, Correctional Institutions Division (TDCJ-CID).
The two (2) cases petitioner challenges were adjudicated at the Jordan Unit in Gray County, Texas.
Petitioner unsuccessfully challenged this disciplinary proceeding through the prison grievance system. On November 9, 2012, relief was denied at Step 1 with the following response:
On December 17, 2012, relief was denied at Step 2 with findings that the disciplinary charge was appropriate for the offense, the guilty verdict was supported by a preponderance of the evidence, all due process requirements were satisfied, and the punishment assessed was within agency guidelines. On January 31, 2013, petitioner filed the instant habeas petition challenging both disciplinary proceeding decisions.
Petitioner appears to contend his federal constitutional rights were violated during each of his disciplinary hearings as follows:
TDCJ records, including an explanatory affidavit, reflect petitioner's conviction in disciplinary case number 201231659, both the finding of guilt and the punishment imposed, was overturned. Petitioner has not demonstrated that he has standing to challenge this case. First, the case was overturned. Second, petitioner has not demonstrated this disciplinary case continues to generate collateral consequences. Consequently, this disciplinary proceeding does not present an actual case or controversy necessary for federal habeas corpus relief and any challenges to this case number should be dismissed as moot.
To the extent petitioner challenges the loss of recreation and commissary privileges and cell restriction as a result of case number 20130018733, such punishments constitute changes in the conditions of confinement and do not pose an atypical or significant hardship beyond the ordinary incidents of prison life. Sandin v. Conner, 515 U.S. 472, 484, 115 S.Ct. 2293 (1995). Therefore, these punishments do not implicate the protections afforded by the Due Process Clause. Because the Due Process Clause is not implicated by the changes in the conditions of a petitioner's confinement with respect to the punishments assessed as a result of case number 20130018733, petitioner fails to allege a deprivation that entitles him to federal habeas relief.
An inmate challenging a prison disciplinary conviction is required to exhaust his administrative remedies before filing a petition for writ of habeas corpus. Lerma v. Estelle, 585 F.2d 1297, 1299 (5th Cir. 1978); Broussard v. Johnson, 918 F.Supp. 1040, 1043 (E.D. Tex. 1996). To exhaust, petitioner was required to pursue TDCJ-CID's internal grievance procedures by presenting his claims in both steps or at least in step 2 of the two-step grievance procedure in a procedurally correct manner. Petitioner's claims of retaliation are unexhausted. Specifically, petitioner's allegations that prison officials retaliated against him by (1) wrongfully placing him in "G-5" administrative segregation, (2) restricting his phone usage for ninety days, (3) placing him in "G-4" custody status for six months, and (4) reducing his line class, are unexhausted since petitioner failed to properly present any of these retaliatory allegations in his Step One or Step Two grievances. Furthermore, petitioner's unexhausted claims are now procedurally barred as the time for filing grievances to this disciplinary case has long since passed. Moreover, even if these claims were exhausted, the claims of retaliation are in the nature of civil rights violations rather than challenges to the disciplinary proceeding determination itself and are thus not cognizable in this habeas corpus proceeding. Petitioner's grounds asserting retaliation should be denied.
To the extent petitioner alleges violations of TDCJ procedure or regulations, namely the allegations of disciplinary hearings taking place outside of the established time limits, and of his housing in "G-4" custody despite being a "G-2," these claims are merely alleged violations of TDCJ procedure and are not cognizable on federal habeas review since they fail to state a valid claim on federal habeas review. Regarding the timeliness of petitioner's hearing, there is no federal Due Process right to a prison disciplinary hearing within a certain time frame. See Wolff v. McDonnell, 418 U.S. 539, 556, 94 S.Ct. 2963 (1974). Regarding classification, inmates have no protected federal liberty interest in their custodial classifications. See Harper v. Showers, 174 F.3d 716, 719 (5th Cir. 1999); Moody v. Baker, 857 F.2d 256, 257-58 (5th Cir. 1988); Wilkinson v. Austin, 545 U.S. 209, 221 (2005); Sandin, 515 U.S. at 486. Petitioner's claims of violations of prison procedure should be denied.
With regard to petitioner's remaining allegations that the Hearing Officer acted with resentment and bias, that he was unduly interruptive during the hearing, and that he wrongfully dismissed petitioner from the hearing, the record reflects petitioner's good time was taken in compliance with due process. First, all of petitioner's allegations of bias are wholly conclusory, self-serving, and without merit. "Absent evidence in the record, a court cannot consider a habeas petitioner's bald assertions on a critical issue in his pro se petition . . . unsupported and unsupportable by anything else contained in the record, to be of probative evidentiary value." See Ross v. Estelle, 694 F.2d 1008, 1011 (5th Cir. 1983). Second, petitioner was afforded the protections provided by Wolff in that petitioner received 24-hour advance written notice of his disciplinary hearing, was provided with a written report of the disciplinary hearing, and was informed of his right to call and question witnesses and present documentary evidence at the hearing as shown by petitioner's own confirmation in writing and orally during the hearing. Further, inmates are not afforded the absolute right to attend disciplinary hearings, Moody v. Miller, 864 F.2d 1178, 1180-81 (5th Cir. 1989), and Wolff establishes that prison officials have broad discretion in deciding whether an inmate may present witnesses at a disciplinary hearing. Prison officials may limit the number of witnesses at a disciplinary hearing or deny inmate requests to call witnesses without explanation to the inmate. Houser v. Dretke, 395 F.3d 560, 562 (5th Cir. 2004). The audio recording of the disciplinary hearing indicates petitioner's refusal to properly address his charging officer and failure to acknowledge proper hearing protocol resulted in his dismissal from the hearing. Nothing in the record indicates the HO was predisposed to find petitioner guilty or that his finding of guilt was based on less than constitutionally sufficient evidence. See Ross v. Estelle, 694 F.2d at 1011 (5th Cir. 1983). The record reflects ample evidence to support the hearing officer's finding of petitioner being guilty of the prison disciplinary offense of threatening an officer. The charging officer's offense report state that petitioner "started to yell, turned around and took a step towards me with his hands coming within inches of my face." An officer's identification of an offender in her written report may constitute "some" or "any" evidence to support a disciplinary board's guilty finding. Hudson v. Johnson, 242 F.3d 534, 536 (5th Cir. 2001). Moreover, a witnessing officer testified at petitioner's disciplinary hearing and confirmed that petitioner came at the charging officer in a threatening and potentially harmful manner. Petitioner's claims should be denied.
Recent inquiry to the Records Division of the Texas Department of Criminal Justice, Correctional Institutions Division, revealed petitioner discharged his 10-year holding sentence on January 22, 2016 and was released from state prison. Petitioner's last pleading in this case was filed January 2, 2014. Petitioner has not communicated with the Court in any manner with regard to this case since that date. Petitioner failed to advise the Court of his projected release, his actual release, or the discharge of his sentence, and has not provided the Court with a change of address.
Petitioner has fully served and discharged his sentence and is no longer in respondent's custody. The relief sought in petitioner's habeas application, i.e., the reinstatement of the 30 days lost good time, placement in G-2 status general population, and reinstatement of Line 1 class status, cannot be granted. Since this Court cannot grant petitioner the relief he seeks in his habeas application, the petition is moot under the continuing case and controversy requirement and subject to immediate dismissal.
It is the RECOMMENDATION of the United States Magistrate Judge to the United States District Judge that the Petition for a Writ of Habeas Corpus by a Person in State Custody filed by petitioner GEORGE ALVIN JONES be DENIED.
The United States District Clerk is directed to send a copy of this Report and Recommendation to each party by the most efficient means available.
IT IS SO RECOMMENDED.
