     Case: 09-10903     Document: 00511120007          Page: 1    Date Filed: 05/24/2010




            IN THE UNITED STATES COURT OF APPEALS
                     FOR THE FIFTH CIRCUIT  United States Court of Appeals
                                                     Fifth Circuit

                                                  FILED
                                                                            May 24, 2010
                                     No. 09-10903
                                   Summary Calendar                         Lyle W. Cayce
                                                                                 Clerk

BARRY EMMETT,

                                                   Petitioner–Appellant,

v.

DIRECTOR TEXAS DEPARTMENT OF CRIMINAL JUSTICE,

                                                   Respondent–Appellee.


                   Appeal from the United States District Court
                        for the Northern District of Texas
                              USDC No. 7:09-CV-111


Before GARZA, CLEMENT, and OWEN, Circuit Judges.
PER CURIAM:*
        Barry Emmett, Texas prisoner # 1383329, moves for a certificate of
appealability (COA) to appeal the denial of his 28 U.S.C. § 2254 application
challenging disciplinary procedure # 20090206103. He contends that his liberty
and property interests were implicated by the denial of procedural due process
during his disciplinary hearing. He alleged that his disciplinary conviction
resulted in punishment of two weeks of solitary confinement, a demotion in his
custodial status, and the forfeiture of $33.77 from his inmate account. Emmett

        *
         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 R. 47.5, the court has determined that this opinion should not
be published and is not precedent except under the limited circumstances set forth in 5TH CIR .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: 09-10903    Document: 00511120007 Page: 2         Date Filed: 05/24/2010
                                 No. 09-10903

seeks remand to the Dallas Division of the Northern District of Texas rather
than the Wichita Falls Division, asserting that the district court in the Wichita
Falls Division is biased against him and lacks jurisdiction to adjudicate his case.
      There is no merit to Emmett’s contention that this case should be
remanded to a division other than the Wichita Falls Division of the Northern
District of Texas. With regard to his liberty interest claims, Emmett has not
shown “that reasonable jurists would find the district court’s assessment of the
constitutional claims debatable or wrong.” Slack v. McDaniel, 529 U.S. 473, 484
(2000). With regard to Emmett’s claim that the forfeiture of $33.77 infringed his
property interests, the district court did not address the issue below; the district
court did not determine whether the claim is cognizable under 42 U.S.C. § 1983
or 28 U.S.C. § 2254 and, if so, whether the procedural due process requirements
of Wolff v. McDonnell, 418 U.S. 539, 564-66 (1974), were satisfied. We therefore
DENY the motion for a COA in part, GRANT the motion for a COA in part,
VACATE the district court’s judgment, and REMAND for the district court to
consider only Emmett’s claim regarding the infringement of his property interest
without procedural due process. See Whitehead v. Johnson, 157 F.3d 384, 388
(5th Cir. 1998).




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